Swearing – we are all guilty of it! In fact, research estimates the average person swears approximately 80–90 times a day[1] – that equates to over three times an hour. Contrary to the perception that swearing is an indicator of a limited vocabulary, a study from the University of Rochester found a strong link between intelligence and swearing[2] – something frequent offenders often cite! The use of profanity finds no exception in the upper echelons of power – even in a public forum. In 2017, a Judge called a defendant “a bit of a c***” (admittedly as a retort).[3] And last September, the Prime Minister, during a back-and-forth with then-Labour leader Jeremy Corbyn, dubbed Labour’s economic plan “s**t or bust”.[4] [5] Thankfully for the Judge, The Judicial Conduct Investigations Office found no wrongdoing.[6] As for the Prime Minister, apparently ‘s**t’ does not qualify as Unparliamentary language (the only language not allowed in Parliament, absolute free speech existing otherwise).[7] Clearly, attitudes have somewhat relaxed – but what does the law say about swearing?
By far the most obvious defence of using profanity sits with free expression, contained in Article 10 of the European Convention of Human Rights (‘ECHR’) since 1953. Importantly, it is a qualified right – meaning it is not absolute. Outside the ECHR, many regard free expression as an ancient common law right. And yet, in 1551, under the reign of Mary Queen of Scots, the Scottish Parliament banned “sweiring, execrationnis and blasphematioun of the name of God”.[8] England meanwhile was initially laxer; a Bill “against usual and common swering” failed in the House of Commons. Yet, just two decades later in 1623 an Act against swearing passed[9] – which found (characteristically) rigorous enforcement under Oliver Cromwell.[10] Further, blasphemous libel remained an offence until 2008.[11] Clearly, outlawing speech of a certain nature is not a new idea.
As such, Margaret Thatcher’s tri-fold Criminal Justice agenda included The Public Order Act 1986 – as well as the Police and Criminal Evidence Act 1984 and the Prosecution of Offences Act 1985. Under s5(1) of the 1986 Act, the use of “threatening or abusive words or behaviour, or disorderly behaviour” is made criminal.[12] Clearly, this could include profanities. However, this appears to be harm-oriented rather than designed to strictly regulate language, otherwise, it would outlaw specific words. Accordingly, it is a legal defence if the said speech was “reasonable”.[13] It is for this same reason that language which was merely “insulting”[14] was removed; to give effect to free expression, under Article 10 ECHR. As well, section 5 applies both in public and private places.[15] Application in private may appear at odds with the ancient dictum of ‘an Englishman’s home is his castle’[16] prima facie, but the Act preserves this sentiment. It is a valid defence for a defendant to be inside a dwelling and believed no one outside would’ve heard[17] – or if he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress.[18]
In 2011 then-High Court Judge Mr Justice Bean created some tabloid backlash[19] when he held people should not be punished for hurling obscenities in public because such words are now so common they no longer cause distress.[20] The facts of the case concerned a defendant who repeatedly used the f-word while being searched by police. The Mail argued this decision “paves the way for scores of other louts to challenge their convictions for public order offences – and could force police to pay them compensation for wrongful arrest.”[21] Personally, I would argue this is a simple slippery slope fallacy. More recently in 2016, Salford City Council passed a Public Space Protection Order to ban “foul and abusive” language – incurring a £1,000 on the spot fine, which led many to flag Human Rights concerns. [22]
Elsewhere, whilst Australians are renowned for their “colourful language”[23] Australia paradoxically has a historical and continued practice of criminalising profanity. That said, perhaps there is a causality! Across Australia’s States and territories, it is an offence to use offensive, obscene, or indecent language in or near a public place. In particular, the f-word and c-word are particularly policed. Indeed, 3029 people were proceeded against for offensive language in 2017 – some 1610 of which received a received an on-the-spot $500 fine. As Aboriginal Australians comprised 27% of those proceeded against, there are valid concerns this policy disproportionately impacts them. Perhaps due to their generally more nomadic lifestyle. [24]
Unlike Australia, the law in England and Wales does not control specific words. Rather, it is victim-oriented on the basis of harm caused, seemingly including ‘taking offence’ – perhaps an extension of outrage culture. As such, this opens the scope of this offence to change with the wind. A recent cultural event which affirms this came in 2019 as a result of the return of popular sitcom Gavin & Stacey for a Christmas special. The programme featured a rendition of The Pogue’s ‘Fairytale of New York’ – which includes the word ‘fa***t’. This received some 800 Ofcom complaints.[25] Admittedly, the offence was said to be taken at the alleged homophobia rather than the use of the word, per se. However, many failed to acknowledge the reality that when the song was written the word meant a lazy person in Irish slang[26] – The Pogues being Irish. The takeaway, as Agrippa wrote, is that “all tongues have, and do undergo various mutations, and corruptions”.[27] This is something I can personally concur with. I vividly remember asking to use the ‘toilet’ in Florida to cause much horror. Admittedly, I was twelve – but the point remains, that language changes both over time and region. If the law is going to regulate language, it should reflect this reality better.
References
[1] Nerbonne, G.Patrick; Hipskind, Nicholas M. (1972). “The use of profanity in conversational speech”. Journal of Communication Disorders. 5: 47–50. https://www.sciencedirect.com/science/article/abs/pii/0021992472900299?via%3Dihub
[2] https://www.independent.co.uk/life-style/health-and-families/swearing-study-intelligent-intelligence-university-rochester-a7916516.html
[3] https://www.independent.co.uk/news/uk/home-news/judge-patricia-lynch-defendant-bit-c-word-chelmsford-crown-court-cleared-judicial-misconduct-john-hennigan-a7517726.html
[4] https://www.youtube.com/watch?v=6P2idNf176A
[5] https://www.independent.co.uk/news/uk/politics/boris-johnson-swears-parliament-pmqs-shit-brexit-no-deal-a9091406.html
[6] https://www.independent.co.uk/news/uk/home-news/judge-patricia-lynch-defendant-bit-c-word-chelmsford-crown-court-cleared-judicial-misconduct-john-hennigan-a7517726.html
[7] https://www.parliament.uk/site-information/glossary/unparliamentary-language/
[8] https://books.google.co.uk/books?id=sIGsBwAAQBAJ&pg=PA166&lpg=PA166&dq=%22sweiring,+execrationnis+and+blasphematioun+of+the+name+of+God%22&source=bl&ots=_DHb35Alku&sig=ACfU3U3eBvcb-N1pWs2h3Yb03XjADWp01Q&hl=en&sa=X&ved=2ahUKEwiemIjBoLfsAhUpQUEAHZ5jDG0Q6AEwA3oECAkQAg#v=onepage&q=%22sweiring%2C%20execrationnis%20and%20blasphematioun%20of%20the%20name%20of%20God%22&f=false
[9] https://www.bbc.co.uk/news/magazine-15816761
[10] http://www.olivercromwell.org/wordpress/?page_id=443
[11] Criminal Justice and Immigration Act 2008
[12] S5(1) Public Order Act 1986
[13] S5(3)(c) Public Order Act 1986
[14] https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard
[15] S5(2) Public Order Act 1986
[16] https://wordhistories.net/2017/07/26/englishmans-home-castle-origin/
[17] S5(3)(b) Public Order Act 1986
[18] S5(3)(a) Public Order Act 1986
[19] https://www.dailymail.co.uk/news/article-2064080/Licence-swear-Profanity-common-offensive-judge-rules.html
[20] https://www.bbc.co.uk/news/magazine-15816761
[21] https://www.dailymail.co.uk/news/article-2064080/Licence-swear-Profanity-common-offensive-judge-rules.html
[22] https://www.bbc.co.uk/news/uk-england-manchester-49163446
[23] https://www.uts.edu.au/about/faculty-law/events/should-swearing-public-be-crime
[24] https://www.uts.edu.au/about/faculty-law/events/should-swearing-public-be-crime
[25] https://www.independent.co.uk/arts-entertainment/tv/news/gavin-and-stacey-christmas-special-bbc-fairytale-new-york-complaints-ofcom-a9277691.html
[26] https://www.nme.com/news/music/some-people-are-calling-for-the-word-f-t-to-be-removed-from-fairytale-of-new-york-2417374
[27] Heinrich Cornelius Agrippa published Book I of his De Occulta Philosophia (translated to English in 1651 as Three Books of Occult Philosophy). Chapter 23 of the book is entitled “Of the tongue of Angels, and of their speaking amongst themselves, and with us” in 1510