Of the making of law reform there is no end

Of the making of law reform there is no end. And this year has seen several pointless attempts at amending or codifying a structure which doesn't need constant rejigging

Amend Section 5 has received significant media coverage
Julian Hunt
On 31 December 2012 13:31

Of the making of law reform there is no end. And this year has seen, once again, several pointless attempts at amending or codifying (or whatever you want to call it) a structure which doesn’t need constant rejigging.

One of the less successful movements was the well intentioned group running the amend section 5 of the  Public Order Act 1986 campaign to remove the “insulting” provisions which, in theory, (note that it happens very rarely in practice) currently allow an individual to insult someone with the potential for being prosecuted. 

Relying in part on a few media stories about overzealous policing, the amendment movement  wants to remove the insulting provisions of the legislation to allow politically incorrect comment and insulting behaviour not to face the potential of being criminalised.

Of course, anyone with an ounce of grey matter knows that in reality a rude joke won’t get you prosecuted and neither will an offensive article or comment unless it gets past the very high threshold for the mounting of such a criminal case. The “victims”, as the group puts forward, of the “insulting” provisions are hardly that – each one was acquitted or the case never reached the courts.

What the group should be doing is focusing on the decision making process and training of police officers by the authorities which allows an individual to end up in the courts or even to face an arrest for insulting behaviour which is considered “likely to cause harassment, alarm or distress”.

We ought though to wish the group well. The “insulting” provisions of s. 5 should be jettisoned and as they say we should be free to insult and be insulted. Isn’t the best answer, however, better training of police officers and a sort of injection of common sense and proportionality into a policing culture turning more paramilitary in style on a daily basis? Just look at the way cops dress at central London train stations these days bristling with guns.

The second pointless attempt at law reform was Chris Grayling’s announcement that homeowners should be allowed to use a level of force that is more than merely proportionate against intruders in their home. Again, it will still be unlawful to use grossly disproportionate force against an intruder in your house but the key point here is that all that Lord Chancellor Grayling (as he is now) was doing with this high profile announcement was making a gesture that in practice will change nothing with the laws on self-defence perfectly adequate to protect home owners at present.

Why is there this hyperactive need to legislate or announce some new legal gambit when there is no need to change what is already in place?

The third quasi-legal development which has sucked up thousands of pounds of taxpayers' money and will quietly go nowhere very soon is the UK Bill of Rights Committee. Few care what this committee has to say. It is yet to report fully. Its report will change nothing relating to our relationship with Europe and once more the clarion cry is whether we need another layer of rights and obligations superimposed on us.

A permanent UK Bill of Rights, as a term, is nonsensical as all that needs happen for it to turn into a handful of dust is for another government in the future to pass legislation abolishing this Bill of (temporary) Rights. Noddy could tell that to those on the Committee.

As for the Leveson recommendations, one can only echo the words of Zhou Enlai, the former Chinese prime minister, who was asked in the seventies what he thought the significance of the French Revolution was. He replied “It’s too early to say”.

One can only pity the parliamentary draftsmen who have to grapple with writing a bill that must please all the competing factions, with definitions required of nebulous and shifting concepts, whilst pondering whether the bill will ever be written and turned into law.

Julian Hunt is a barrister and has been practicing law since 2005. He was a Crown Prosecutor and Senior Crown Prosecutor for the Crown Prosecution Service between 2008 and 2011 but now defends. He lives in South London

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