Political debate in the UK has rarely been more contested or harsh than it is now. A perfect storm has created the nightmare. A divided country with a political class that has failed to rise to the challenge. A mainstream media that still allows its moguls to dictate political agendas or scapegoat those whom they see fit (usually the most vulnerable). A social media culture that gives remote keyboard warriors the confidence and ability to deliver messages with ease, to their victims and beyond, conveying things that they would never utter in person. And looming over it all, the spectre of the far right, using Brexit as their vehicle to peddle the same old lies about migrants, about immigration and about their own victimisation.

It is in this context that there are increasing calls for the criminal law to assist in regulating such conduct. That public order legislation should be used for arrest and prosecution where conduct goes too far – be it on social media or on College Green, outside the Houses of Parliament. The background to this was, of course, the run-up to the January Brexit vote in the House of Commons and the vile abuse directed to some journalists and MPs.

It is undoubtedly true that each offence must be judged on its own merits. It does not matter if you threaten or incite violence in public or on social media – you can still be guilty of a criminal offence. However, where we seek to curtail political debate by the threat of criminal law sanction, we need to be careful.

The quotations that I use most often during public order cases are that ‘[f]reedom of expression constitutes one of the essential foundations of … a [democratic] society, one of the basic conditions for its progress and for the development of [everyone]’ (Handyside v UK App No 5493/72, 7 December 1976 at para 49) and that ‘[f]ree speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having’ (Redmond-Bate v DPP [2000] HRLR 249 at para 20). These are principles that we should treasure and the right to free speech is, of course, enshrined in article 10 of the European Convention on Human Rights.

It is not absolute, and words and conduct together that appear to threaten violence will inevitably cross a line. It is this type of behaviour that is on the increase, with MPs now regularly intimidated on social media. It is frankly amazing that we have forgotten the murder of Jo Cox MP so quickly and failed to remember the calls to moderate language and curb insults. Those in the public eye as MPs or journalists should learn the lessons – it does no good to our political discourse for opponents to be labelled ‘enemies of the people’.

For political speech, though, unless it crosses that line into inciting violence, it should not be the criminal law to which we turn. Section 5 of the Public Order Act 1986 makes it an offence to use ‘threatening or abusive words or behaviour … within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby’ unless that conduct is ‘reasonable’. In a political context, this offence should be used sparingly, as the recent case of Campaign Against Antisemitism v DPP [2019] EWHC 9 (Admin) demonstrates. This was an unsuccessful attempt to judicially review the CPS’s decision to stop the private prosecution of a speaker at a pro-Palestinian demonstration for an alleged s5 offence.

Freedom only to speak inoffensively is certainly not worth having and speaking otherwise should not be a crime in and of itself. It would just be good if we could recognise that words can be tremendously powerful (it is why free speech is so important), and that those in authority and those speaking at events should be a bit more careful about their own language before they call for the prosecution of others.