Is Katie Hopkins on the verge of committing a criminal offence punishable with life imprisonment?

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:

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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:

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  1. 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).
  2. 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.
  3. 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 [2013] 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.
  4. 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 [2006] 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 [1957] 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.