DEATH OF A QUEEN AND S.5 PUBLIC ORDER ACT

There can be few of us who have not wondered whether or not our nation has been gripped by some form of national hysteria.  I write as somebody who leans towards republicanism but who was honoured to swear allegiance to Her Majesty Queen Elizabeth II and her heirs and successors  as a Justice of the Peace. She was head of state and I felt no hypocrisy on my part by so doing.  I am old enough to have been a primary school boy when told of the death of George VI.  Thus to some degree I stand apart from those of later generations who, in dozens of media conversations, have said that they felt some sort of personal affinity to our late monarch.  I did not.  The most startling impression I have had in the last few days is that so many people in this country are repeating scenes we last saw in 1997 on the death of Princess Diana.  I am no psychologist but my abiding impression of the TV coverage at that time was a nation in the grip of the aforesaid condition of national hysteria. It has long been recognised that groups of people can be enveloped in an overpowering common feeling whether benign or bewitched.  The Salem witch trials of 1692-3 have been considered lately by  psychologists as perhaps being of such a nature.  But what caused the mass hysteria, false accusations, and lapses in due process which resulted in the "execution" of 14 women? Scholars have attempted to answer these questions with a variety of economic and physiological theories. Thankfully the results so far of public grief expressed on the streets of Britain are not threatening to anyone except perhaps to that handful of individuals who have dared to express by means of posters carried that they would prefer to live in a republic or to one or two individuals who have voiced diverse opinions of the Duke of York.  According to social media and scant reports in mainline TV the police have merely arrested them in order to prevent a public affray or breach of the peace.  It is likely that S.5 of the Public Order Act was employed. 

Harassment, alarm or distress.

A section 5 offence comprises two elements:
 A person must (a) use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) display any writing, sign or other visible representation which is threatening, abusive or insulting; and

The words or behaviour, or writing, sign of other visible representation must be within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Unique amongst the public order offences in the Act, section 5 requires no proof of any intention, nor that any person actually be caused harassment, alarm or distress, only that the act took place within the hearing or sight of a person “likely” to be caused harassment, alarm or distress.

It doesn`t take a lawyer to realise that this offence is based on subjectivity and not objectivity.  Thus it gives the police widespread power to impose their will at any scene which appears to them to be encompassed by the legislation.  The maximum penalty is a fine. For someone of the criminal classes a conviction for a S.5 offence is but a tap on the wrist but for a professional person of good standing it could be a hammer blow. Intending protesters should consider carefully the possible consequences of their actions.