There is a risk inherent in writing about professional trolls that you serve only to ladle extra righteous indignation into their feeding troughs. It is for such reason that I set myself a strict biannual ration when blogging about Philip Davies MP.
However, the overwhelming public interest in preventing – or, if by publication the horse has bolted, remedying post-facto in law – a diabolical social outrage has compelled me to address the most recent threat by below-the-line comments queen Katie Hopkins, who, with typical charm and grace sent the following tweet in the build-up to the London Mayoral vote:
If Sadiq Khan wins London, I will run naked down Regent Street with a sausage up my bum in protest #LondonMayor2016
— Katie Hopkins (@KTHopkins) May 4, 2016
Given that it was tweeted at a time when it was plain from every poll that Khan was going to win by a landslide, one might be justified in treating this as less of a call to arms and more the opportunistic realisation of a lifetime ambition. Either way, it has succeeded, as Hopkins usually does, in ensuring that, for a segment of social media users who ought to know better, a significant British political landmark has quickly become about one damaged woman’s repeat self-publicity/immolation campaign. And I include myself in that segment. In the days that have followed the inevitable victory for Mr Khan, there has been no sign of retreat on Hopkins’ twitter feed; to the contrary she has classily declared that it is to be a halal sausage as “I don’t want to upset our first-Muslim-son-of-a-bus-driver Mayor.”
It is utterly counterproductive signalling distaste at this kind of thing, because it is on surfing the opprobrium of “the left-wing media”, by which she means non-racists who don’t believe in shooting refugees, that Hopkins thrives. Offences against standards of common decency are her stock in trade. But offences against the criminal law appear to be something that Hopkins has not considered. Accordingly, as a public service, for the attention of both Hopkins and any bystanding prosecutorial authorities, herewith the criminal acts that Hopkins may well be committing if she follows through on her pledge:
- Outraging Public Decency. This common law offence covers all open lewdness, grossly scandalous behaviour and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order. The act must be committed in public. The act need not be “sexual”, but a jury must be satisfied that it is lewd, obscene or disgusting. As a common law offence, the maximum sentence is life imprisonment or an unlimited fine (although the maximum would be unlikely to be imposed in Hopkins’ case).
- Exposure, contrary to section 66 of the Sexual Offences Act 2003. Save for a strategically-placed fig leaf, which would rather contravene the explicit terms of her pledge, Hopkins would appear to inevitably be exposing her genitals (subsection (a)), and therefore the only question would be whether she has done so intending that someone would see them and be caused alarm or distress. For reasons as per 3 below, I reckon this offence is made out. Maximum sentence is two years’ imprisonment.
- The copper’s favourite, the catch-all section 5 of the Public Order Act 1986. The obscenely broadly-drafted provision criminalising “disorderly behaviour”, or “threatening or abusive words or behaviour” if within the sight or hearing of someone likely to be caused “harassment, alarm or distress”. There is always a tricky balancing act between rights of freedom of expression under Article 10 of the European Convention on Human Rights and this particular provision; however the case of the Naked Rambler is an example of how po-faced English courts can be over public nudity (his case beginning life as an offence contrary to section 5 – Gough v DPP  EWHC 3267 (Admin).) If, following Gough, public nudity can constitute an offence under section 5, which is punishable only by a fine, it follows that it can also be an offence under section 4A of the same Act – which requires committing the act with intent to cause harassment, alarm or distress (as opposed to such an effect being merely “likely”). Given that Hopkins rarely says or does anything without that intent, I’d be optimistic of getting this one home in front of the magistrates. Maximum penalty under section 4A is 6 months’ imprisonment.
- Public nuisance. Another common law offence, criminalising the doing of an act not warranted by law, the effect of which is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s Subjects. Ms Hopkins parading down one of London’s premier thoroughfares in the proposed fashion would plainly affront the rights of Her Majesty’s Subjects to not be subjected to such a sight, and at the very least would affect the reasonable comfort and convenience of life for those innocent Regent Street shoppers. The House of Lords has, however, made it clear that where a specific statutory offence could be charged, public nuisance should not be prosecuted (R v Rimmington; R v Goldstein  1 A.C. 459).
That having been said, it is perhaps at 4, with a charge of public nuisance, that the most appropriate manner in law of dealing with Hopkins is to be found. In 1957, in the case of Attorney-General v P.Y.A. Quarries Ltd  2 Q.B. 169, CA, Lord Denning said the following:
“[A] public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.”
A more prescient and fitting description of Hopkins, half a century before her time, one will struggle to find.
But if she paid you enough money you would be more than happy to get her off with it wouldn’t you, defending her right to free expression with every pound in her pocket, please correct me if I am wrong!
are you really saying that some people do not have the right to be defended against the state by a lawyer? I think your comment that the writer of this blog would be more than happy to get her off displays your ignorance as what it is that criminal defence lawyers do – and I say that as a prosecutor.
The secret barrister? Should that be the secret Barista, or even the secret sanctimonious moron? Chris O’Hare nails it, when he says you would crawl over broken glass to defend any celebrity in such a case. Your like make a mockery of the legal system for your cash, criminality has nothing to do with it.
“You doctors would crawl over broken glass to treat a patient. Your like make a mockery of the medical system for your cash.”
I would defend, or prosecute, anyone I was instructed to. That’s what barristers do. If you genuinely want to understand a little more about how the legal system works, rather than simply hurl abuse over a tongue-in-cheek blogpost, I’m happy to answer your questions.
Why no openess – “secret” barrister,what have you got to hide? And how did you know for sure the day before the election Khan would win – the General Election result (perhaps where much of your sourness comes from) last year was nowhere near what any of the polls said.Was the vote fixed in advance and you knew? “what barristers do” as you say is defend or prosecute anyone they are instructed to – and your use of the words ‘anyone” and “instructed” means that you have no moral considerations about who you represent.So,stop threatening people with serious prison terms through an anonymous blog and go look in the mirror.
That is what all criminal defence lawyers do, and maybe one day you might need one. And when you do you will be glad that someone is representing you, because the state is a powerful adversary. In my former life as a defence solicitor I have defended people who I thought were guilty of some pretty serious crimes. But that’s just the way our system works, It’s not the job of the barrister or solicoitor to make a moral judgement about their client. Every accused person has to be proved guilty, and if the Crown can’t prove the case the accused is found not proven or not guilty (the former verdict is applicable north of the border), and the person walks free. That’s how it works. You and I might not like it when an ‘obviously’ guilty person walks free, but that is the price of living in a democratic society. As a prosecutor I sometimes have to prosecute people who might actually not have done what they have been charged with, but it’s not my role to determine their guilt or not. The jury or the judge have to determine that.
So, next time you want to mouth off about “moral considerations”, take a deep breath and be grateful that you are able to do so without repercussions. On the other hand, if your rants amount to criminal conduct, like Hopkins sometimes does, the secret barrister has every right to point that out, as well as point out the penalty for doing so.
how come she is never cautioned under s5 of the Public Order Act for about 95% of what she posts on social media?
Asking for a friend….
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