To abuse or not to abuse? That’s the question

By Pravin Bowry

Once Parliament has passed a law, all the statutory provisions are supposedly cast in stone and must be adhered to strictly. Unlike wine, laws do not, indeed cannot, be good or bad depending on the age or times we live. Or so I had thought!

In an interesting and controversial case in England, the High Court last week decided that even when there are clear and straight forward set of facts constituting an offence, extraneous circumstances can render the offence unworthy of prosecution. Changed perception of society can make laws fluid.

In England Sections 5 of Part 1 of the Public Order Act, 1986 makes swearing at police officers an offence. Essentially that has been the position for centuries.

In 1551 the Scottish Parliament banned "sweiring, execrationnis, and blasphematioun of the name of god", punishable by a fine of one shilling or "a spell in either prison or the stokes" for those who could not pay.

And in 1601 a Bill "against usual and common sweiring" was introduced to the House of Commons but failed to garner enough support.

In 1623, swearing was made into law and was strictly enforced by the puritan law enforcers.

In the Sixties the constitutional right of free expression of words and phrases — previously considered taboo — began to be accepted and more recently the English are trying hard to eradicate profanity from British streets. And in some local authorities such as Brighton and Hove, one can lose his home if one breaks the contractual provision agreeing not to swear in public!

The present law was that citizens were allowed to swear at the police, and if you do, you can get a £80 fine instantaneously in what is called a "fixed notice" offence.

Police training

The rationale of the High Court decision is that people should not be punished for hurling obscenities in public because such words are now so common that they no longer cause distress.

So the offence of swearing in public, appears to be no longer an offence according to Mr Justice Bean who upheld the appeal by an accused who was convicted for repeatedly using very expletive words when being searched by police. The judge ruled that the officers heard the term in question too frequently to be offended by it.

The Scotland Yard has had to give directions to its officers not to arrest foul-mouthed youths who abuse police officers. The directive has sparked a revolt in the force, angered MPs, and other law abiding citizens in what is termed a ‘licence to swear’. The directive actually specifies the words but, ironically, uses asterisks to disguise the offensiveness of the language.

Now coming back home from the England! And sure we have similar provisions in our Penal Code but our own courts have been equally innovative in their thinking.

"Threatening breach of peace" offences were very common in the post-Independence era, in as much as the colonialist also used the provisions, to restrain those perceived as unwanted elements in the society who had not committed any other proveable offence.

A court in a case relating to an incident in a police station has ruled that there can be no breach of the laws if a citizen at a police station, bangs the report table, or abuses an officer or otherwise becomes a nuisance on two scores — firstly the police station is not a public place and, secondly, police by their very training and vocational habits are incapable of being provoked into creating a disturbance!

Honourable Justice Lesit had the occasion to decide a case in 2006 in which she ruled: "The breach of peace in my view can only be considered in reference to the place where utterances are made and persons present when the utterances are made. In this case, there was one police officer and a member of public. "

How about sheng?

"The incident took place within the police station area. The words uttered were definitely abusive and offensive but I do not believe that they could have incited violence in the hearers. The reaction of the three hearers of those words is also a clear indication that their peace was not interfered with and that they were not incited in any way"

The law in Kenya can be stated that where persons before whom obscene or abusive utterances are made are unlikely to resort to physical violence and thereby create a breach of peace, the charge of creating disturbance cannot stand.

To abuse or not to abuse? It seems to be a question of time, place and the fluidity of law. How interesting? I guess the way out may well be to abuse in sheng!

—The writer is an advocate of the High Court of Kenya.

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