Other criminal hacks will know the old story about an angry defendant at the old Knightsbridge Crown Court (round the back of Harrods – those were the days) who was sentenced to a substantial bit of bird. As he’s being taken out of the dock he shouts at the judge: ‘You’re a c***’. Judge says: ‘Stay there a moment Mr X. Now, when I leave here I’m going to play a round of golf and then go home, where my wife will have a gin and tonic waiting for me. We may go out to dinner. You are going to gaol. Who’s the c***?’
If you go up to a police officer and swear at her she will warn you not to, and if you do it again she will probably arrest you under Section 5 of the Public Order Act 1986. The law is that if you use ‘threatening, abusive or insulting words…which are likely to cause harassment alarm or distress to a person of reasonable firmess’ you have committed an offence. Police officers are rightly taken to have more ‘firmness’ than most people, so are less likely to be harassed alarmed or distressed. But the High Court held in 2007 that there is no rule of law that the offence cannot be made out when the only person who heard the words in question was a police officer (Southard v DPP). Bear in mind the words ‘likely to’: you don’t have to intend to harass alarm or distress anyone. The Magistrates who try you will look at the circumstances and decide, objectively, whether your words made that outcome likely.
It won’t help if you tell the officer or the beak that you read on Twitter or in the Daily Telegraph that swearing at the police is OK. They will think you are an ignorant smartarse.
PS The Home Office have published a consultation paper about doing away with ‘insulting words’ as part of the Section 5 offence: http://www.homeoffice.gov.uk/publications/about-us/consultations/police-powers/consultation-document?view=Binary
In the UK Human Rights Blog on 15th November 2011, Adam Wagner takes on the members of Occupy London Stock Exchange (http://occupylsx.org/) who occupied The Guardian ‘Comment is Free’ blog in particular the Freemen on the Land Movement (sic – no free women?). He criticizes them for bad legal reasoning and advice, and invites a reply to a question posed by blogger ‘Old Holborn’ in a follow up comment, who asks who governs me if I withdraw my consent to be governed? Here are some notes towards an answer.
The premise of the question is that being governed is a matter of an individual giving consent – or in the broader issues raised by Occupy London under discussion on CiF, the premise is that a person may opt out of the law.
Either premise appears to envisage a world in which the atomic individual is sovereign, and has the right and therefore the power to withdraw from being governed and from law. On the hypothesis that an individual has such power, it could only be exercised once. Renunciation of law in general or government in general is all or nothing. If you just opt out of parts that you disagree with or find inconvenient, you are doing no more than asserting a temporary self-interest that has no philosophical or principled content. At the very least you’d lose credibility if you made a stand one day and later relied in some way on the law/government you have renounced. An example: you decide to live in the woods and have nothing to do with society; you cease paying taxes etc etc. When you become ill are you then not obliged to abstain from medical care lest you bring yourself back into the sphere of law and government? If you renounce all obligations, do you not also renounce all rights?
If I make a rational choice to disobey a particular law on grounds of principle, I do not reject law in general. I justify my decision by reference to a concept of morality with which the law is inconsistent. We can all think of real or imaginary cases in which such a choice is intelligible, maybe even unavoidable for people of conscience. But such a choice rests on a view that law should be better or different, not that none of it applies to me. I will be naïve if I think that such a choice will have no price, perhaps as high as martyrdom.
But do I have the power to opt out, just because it is my will to do so? Almost certainly not, while I live in a world whose substance is shot through in small and large ways with law and government. Atomic individualists probably have little sense that they are inheritors of practices, traditions, rights and obligations that people have developed and fought for for centuries. When I walk freely on the pavement I do so because of rights and laws that others have made for me, long ago. I do not extinguish my right to do so just by declaring that I no longer recognise the jurisdiction of law or government; any more than a child or mentally ill person loses their rights because they cannot articulate them. I have certain rights whether I like it or not. Having them entails obligations – not to defecate on the pavement, or make it unusable for others. I can ignore or flout them, but I can’t stop them applying to me. Unless there is a viable model for a society in which no one has even minimal obligations to others – eg not to kill or harm them – we have to have rights and obligations. Mogadishu or the Hobbesian ‘war of all against all’ are unlovely places. If there is such a thing as society, there have to be laws. And you don’t want government without law or rights. If I don’t have the power to opt out, it’s meaningless to speak of a right to.
So OH’s question can be answered by saying that it impossible not to be governed by law without total and permanent withdrawal from society, when OH can be governed by himself alone.