CONTENT RATING: PG-16
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Should you be prosecuted for barking? Or asking about a horse’s sexuality? What about using a racist slur? This episode looks at the turbulent history of §5 of the Public Order Act 1986, and its chaotic journey from the dreaming spires of Oxford to the inner-city streets of Newcastle. en clair is a podcast about forensic linguistics, literary detection, and language mysteries from past to present. Below you will find data, audio credits, further reading, and a transcript of the podcast.
Audio credits
Steve Combs – A Vital Piece of Music for All Your Soundtrack Needs
Kevin MacLeod – PI Tchaikovsky’s Dance of the Sugar Plum Fairy
Lee Rosevere – Quizitive
Lee Rosevere – Wandering
Credits, sources, and more
Outrage that the gay horse case went to court
The barking man appeal
Wince Philip and his “gaffes”, more “gaffes”, ALL the “gaffes” because something something comedy, just take the fucking picture
Harvey v DPP, Outrage at the fuck all case ruling, more outrage at ruling, outrage for days, pushback
Ofcom (2016) Children and parents: media use and attitudes report 2016
Ofcom (2016) Attitudes to potentially offensive language and gestures on TV and radio: Research report [Warning: this report contains a wide range of words which may cause offence.]
K & T Jay (2013) A Child’s Garden of Curses. American Journal of Psychology
The Public Order Act 1985, Campaign to reform §5 of the Public Order Act 1985, number of arrests under §5 of the Public Order Act 1986, update to §5 of the Public Order Act 1986
Robertson’s Jam and a short history of the golliwog
Stephen Fry’s take on swearing
Kevin Bridges – Holiday travel agent
Transcript
This is a content warning. That’s right. On an episode all about swearing, I’m about to warn you that there will indeed be some expletives. I would say that I’m not going to use them gratuitously or excessively, but of course I am! How often do you get to swear for science? Expect every class and colour and composition of swearword you can imagine, from the old Germanic gut-punchers through to the classical multisyllabic word assassins through to the infinity of internet imprecations and beyond, so, as ever, teachers, guardians, parents, and caregivers should listen to this entire episode first, and then make your own judgement call about whether this content is suitable for younger or more sensitive audiences.
Case S01E12 – Cursing and swearing
It’s May of 2005. We’re in England, close to the dreaming spires of Oxford University, that epicentre of stately, ancient knowledge. A record-breaking heatwave is clamping down on the south of England and at one point temperatures reach as high as 31°c (that’s a whopping 88°f). For England, in May, that’s enough to break a fifty year record. But right now, it’s evening, it’s a little cooler, and for some students, they have just finished their finals – these are end-of-year university exams. Time to take a night out and celebrate. Perhaps anticipating a little post-stress rowdiness, the police are visible on the streets, some on foot, others on horseback.
As the night darkens, and the drinks flow, and the festivities increase, 21-year-old English Literature student, Sam Brown, approaches a mounted police officer. For reasons with which we are likely to never be acquainted, he decides to address the officer with the immortal words:
Excuse me, do you realise your horse is gay?
Quite what Brown’s purpose was, I couldn’t even begin to guess. And I’m now going to pose a conundrum equally baffling: I’m forced to confess here that I can’t confidently determine if Brown is commenting on the horse’s sexual orientation, or if he is using “gay” as a pejorative remark. For people outside of Britain, in case this didn’t occur in your own linguistic backyard, for a while there, “gay” was a shorthand slur or insult, driven by homophobia. Thankfully, that brief, ugly moment seems to be mostly over, but at the time of this case, either interpretation of the word – as a sexual orientation or as a homophobia-laced insult – was entirely plausible.
Very weakly, I tend toward thinking that this was a comment on the horse’s quality-time preferences, mainly because it’s hard to imagine that even a drunk student could look at a fully equipped police horse and be unimpressed. Police horses in the UK are explicitly chosen for their imposing stature and presence. These are not small or lightly-built horses. They tower over the average person, and when fully kitted out, especially for night patrol or in crowd-control armour, they are pretty damned impressive. On that basis, I can only guess that Brown felt he had some divine equine insight that he needed to convey to the officer.
Alternatively he was just being a jerk and playing the comedian for his friends.
Whatever the case, to be absolutely sure, it would almost certainly help if we knew what had happened in the moments prior to his rather extraordinary question, but we don’t. We do know, however, what followed. Brown was promptly arrested under §5 of the Public Order Act 1986 for making remarks deemed to be homophobic. In other words, the police seemed to infer that he was using the word gay as a slur, which is kind of interesting, and messy. But I’m getting ahead of myself.
Importantly, at the time of the arrest, §5 of this act did not require evidence of harassment, alarm, or distress; rather, it was sufficient simply to note that threatening, abusive, insulting words or behaviour occurred in a place where it was likely to cause harassment, alarm, or distress. And this applied to behaviour that was spoken or written, drunk or sober, Oxford University student or not.
Brown was charged with the offence and fined £80, which he refused to pay. It’s unclear quite what happened in the intervening six months, but then, in January 2006, the Crown Prosecution Service, or CPS, dropped the case against Brown. Their reasons for not pursuing the matter further were that they lacked sufficient evidence of alarm, distress, or disorderly conduct. I can also imagine that issues of public perception will have played a part in this case, but that’s just me speculating.
~
A year later, and it’s now 2006. We’re walked down in a street in Newcastle with 16-year-old Kyle Little and his girlfriend, also sixteen. He is directing unpleasant language at nearby police officers, who tell him to knock it off. Abruptly, chocolate Labradors Princess and Ruby enter the scene. They bound across their back garden to their gate and begin barking at Little. Little decides that he should growl and bark back, the police spring into action and arrest him, and the dog’s owner, Sunita Vedhara, looks on with the perplexity that I can only imagine the rest of us would feel if this bizarre scene started unfolding at our own garden gate.
As a direct consequence of barking at the dogs, Little is cuffed, stuck in a police van, taken to the station, held in a cell for over five hours, taken to magistrates’ court, convicted under §5 of the Public Order Act 1986, fined £50, and charged £150 costs. Little appeals and the Crown Court determines that his appeal is sound. In overturning his conviction, Judge Beatrice Bolton drenches the whole affair with a refreshing shower of cold words, thus:
The law is not an ass… I’m sure an expert on Labradors could explain how distressed the dogs were but I don’t think section five of the Public Order Act applies to dogs. Growling or barking at a dog does not amount to a section five offence, even if a defendant has been told by the police to curb his language. He obviously did curb his language and spoke to the dogs rather than continuing to swear at the police.
Love her. Judge Bolton, if you listen to this podcast, and I’m ever in London and you have a spare hour, I would absolutely buy you a coffee.
Back to the Public Order Act 1986. As you may be starting to realise, §5 already clearly has all the hallmarks of judicial infamy, and yet, not all the stories it generates work out in quite the same way as these two. We’ll come back to §5 later, though, after we’ve gotten better acquainted with some real swearwords.
Welcome
Welcome to en clair, an archive of forensic linguistics, literary detection, and language mysteries. You can find case notes about this episode, including credits, acknowledgements, and links to further reading at the blog. The web address is given at the end of this episode. And, if you get a moment, leave us a rating wherever you get your podcasts from.
The power of words
One of my earliest childhood memories, and you may want to skip forwards thirty seconds or so if you’re squeamish here, is of almost chopping off a thumb-tip in the hinge-side of a door. Aged about six or seven, I went to see if my neighbour of about the same age wanted to play out, and as he opened the door I leaned on the frame to ask him. He was in a bad mood for some reason, no idea why, so he shouted “No!” and slammed the door shut in my face. I don’t really remember much about the next few minutes. I recall sweaty, pasty-faced parents. I think I screamed a fair bit. There was a blood-drenched tea-towel wrapped round my fist, so it looked like a murderous turkey drumstick, and then my next clearest memory is sitting hospital some hours later. By this time my thumb-tip has been sewn back on and I am high as a kite on a powerful cocktail of drugs. A nurse is struggling to show my mother how to dress a squirming child’s tiny thumb. I am not helping matters at all, and into the midst of this tense, tired scene, I randomly announce…
I have a bloody thumb.
And my last vivid memory of that whole incident is of all the grown-ups in the room bursting into laughter as if I had taken the Apollo Theatre by storm. As kids do, I stored the information away about this magical word, and some weeks later, grinning broadly I told everyone at dinner, I have a bloody broccoli. Unfortunately, not only did this fail to make anyone laugh, I ended up spending much of the evening in utter disgrace.
Indeed, swearing and children have been a confluence of topics that have worried at the neuroses and anxieties of society since about as along as swearing has existed:
What are parents, educators, and other adults to do about the problem of child swearing?
This is the question that opens the 2013 article, “A Child’s Garden of Curses” written for the American Journal of Psychology by Kristen and Timothy Jay. They go on thus:
It is clear that at some point children learn taboo language; however, the nature of this acquisition is unspecified by language researchers. In the absence of a good body of data about child swearing, obscenity law assumes that children are naïve to taboo words and become corrupted or depraved when exposed to them; therefore, children should be protected from taboo words. (Jay & Jay, 2013: 459)
Over the centuries, these fears of corruption and moral turpitude have resulted in whole chapters in parenting books, grave seminars by esteemed professors, religious guidance and counselling, extensive school rules, innumerable terms of service across platforms and websites, and reams of strictly enforced legislation, all based on the sense that swearing is de facto bad. Let’s take one example: Ofcom is the UK’s communications regulator, and it puts protecting children from “harmful material” at the centre of their Broadcasting Code. This code restricts the kind of material than can be aired on TV or radio before 9pm in the UK. This time is known as the “watershed”. Beforehand, no bad words or content. Afterwards, it’s a free-for-all. The idea here, as you’ve probably established, is that anyone staying up past 9pm must be old enough to consume the more grown-up content. In 2016, Ofcom defined harmful and unsuitable material as…
…everything from sexual content to violence, graphic or distressing imagery and swearing. For example, the most offensive language must not be broadcast before the watershed on TV or, on radio, when children are particularly likely to be listening. Frequent use of offensive language must be avoided before the watershed, and must always be justified by its context. (Ofcom 2016)
So what if you accidentally drop an “oh fuck” into your live news broadcast? Breaking these regulations can result in legal sanctions. Playboy TV and Just4Us were fined £50,000 and £60,000 respectively for broadcasting advertisements for “adult chats” before the 9pm watershed.
But there’s a fun question buried underneath all of this. As you probably know, listening to this podcast, swearing changes over time, so how do you draw up a list of bad words to start with? And then, how do you rate them and decide which ones can air before the watershed, and which ones can only happen afterwards?
Ofcom quite literally conducts periodic large-scale surveys with TV and radio users to see what they think about harmful content, and to check whether their restrictions continue to be suitable. With a change in attitudes, previous restrictions might now seem unduly prudish, or far too lenient. In 2016, Ofcom published the results of a large-scale research project about offensive language. The respondents to that study divided a range of swearwords into two categories: discriminatory and non-discriminatory. The non-discriminatory category was then divided up into a further four subgroups – milder words that were generally of little concern, medium words that might just squeak by before watershed but only with scrutiny; strong words that were almost certainly not acceptable pre-watershed, and the strongest words which were highly unacceptable pre-watershed.
There’s some interesting things to note about these various categories. In the mildest group, you find words like arse and bloody, so you could probably get away with saying things like “bloody hell, you’re such an arse!” before watershed without too much comment. In the medium column, where you start seriously pushing your luck pre-watershed, you have words like shit, arsehole, and bitch. But then you also have tits, and for me that’s weird because in the next column, the strong words which you’d really get in hot-water for pre-watershed, you have knob. That knob is considered more offensive than tit to me is strange, because I remember using knob as an insult throughout most of my high school years, and the teachers never bothered. Had I said tit, that would have been a problem. But then, I went to a rough working class comprehensive school, so, probably best not to read too much into that. Aside from this rather quaint appearance of the word knob, most of the strong words category relate exclusively to genitalia – men’s, yes, but mainly women’s. Every offensive synonym you can think of for the vagina is in there, except for one, and that one is in the strongest group of all, along with just two other candidates. That’s right. Topping the Ofcom horserace of swearwords, you have the classic trinity of fuck, motherfucker, and cunt.
If you’re interested and want to see a full table, take a peek at the blog post. It’s a great table and I encourage you to print it and stick it on your wall and explain to your boss that you put it there so you know which words you’re allowed to say at work with impunity because Ofcom say so.
But maybe don’t do this if you work in a school. Or a monastery.
Non-discriminatory language: General swear words and body parts
Moving on, what about the discriminatory words? Well, here’s where I’m going to draw a line. I realise you might not believe me, but there are actually some words I won’t say, and these are the very ones. The n-word is one classic one, but you yourself probably know other highly offensive, racist terms that have a really vile history of oppression and brutality behind them, and these words were rated by the Ofcom participants as unacceptably offensive regardless of time or context of use. This is heartening because, as recently as 2002, Robertson’s Jam had a little collectible character, latterly named Golly, whose history doesn’t stand up well to scrutiny.
Thankfully, explicitly homophobic and transphobic words were also considered deeply unacceptable, but when it came to words related to mental health and disability, there was a more complicated reaction. Some terms, such as spastic, mong, or retard were evaluated very negatively, regardless of context. Others, such as loony or mental were seen as rather more mild and therefore more acceptable.
Finally, the overall view was that whilst participants were generally supportive of putting some of the restrictions described above on offensive language, particularly to protect children, they did also prefer TV and radio to be realistic. So there’s that weird dichotomy again. We somehow don’t think it’s harmful for adults to swear, and we’re so unconcerned by it that we even think of it as normal – that TV and radio without it would seem unnatural to us – but we’re strangely upset at the idea of children swearing or hearing swearing for fear of… something.
I set myself here as a perfect example of the contradictory nature of this position. I know, as a linguist, that swearing is just another flavour of words, a different colour on the linguistic spectrum that one only airs in certain times and places. I recognise that by treating certain words as somehow actively harmful this is almost like engaging magical thinking. I should stress that I’m not talking here about words that demean others. I’m talking here about the sort of thing you might utter if you drop something on your foot. We’ll get into the finer definitions between swearwords shortly. Why should it matter so much if I utter an exclamation of pain that uses one set of sounds rather than another? What harm can this do to any nearby child? Let’s say they instantly learn this new, exciting sound and start using it anywhere and everywhere – what harm does it do anyone else? Aunt Gladys might clutch her pearls and those people down the post office might think you the worst parent on the planet, but why? If you really put this under the microscope, it doesn’t actually make much sense. Why do we choose to be mortally affronted by a little person swearing – or indeed anyone, but particularly kids – especially if we recognise, as we often quickly can, that they don’t really know the word thoroughly yet? And yet, despite being in full possession of this paradox, I have broken my toe in front of three small pairs of ears, and instead of letting out an entire rainbow of extremely colourful words, I hobbled out of the room and groaned quietly to myself until I could function again.
There is research that looks into how we ever end up learning to swear at all, given our general social squeamishness about ever letting the younger part of the population into this magical world of bad words, and some of it, quite amusingly, shows that children rate words like fart and poop as being craaazy bad swearwords, whilst their ability to even recognise the more serious swearwords is essentially underdeveloped due to their lack of exposure, and therefore, lack of understanding of those words. So now you know, next time your child calls you a poopoo head or a smelly fart face, they are really wheeling out the BIG guns and hitting you with all the nukes they have at their command.
Anyway, to return to the bloody broccoli incident from a few hours ago, this was the point at which I decided that swearing, and grown-ups, made absolutely no sense, both independently of each other, and together as a whole. Why, I wanted to know, are some words considered bad? They are all just sounds or letters or gestures, after all. And as I got older, I realised than in speech, we produce these exact noises all the time. Some people, when speaking quickly, might want to examine exactly how they pronounce words like “couldn’t”. When I get fast, mid-speech, that sounds quite different. And then there are words like that classic dog breed, the Shi Tzu. And no episode like this would be complete without reference to The Simpson’s where Bart is obsessed with talking about a nine inch pianist. But that’s slightly off-piste. Haha. See? Nearly-swears and actual-swears-that-aren’t-really are everywhere. In writing, there’s something known as the Scunthorpe problem. If you don’t understand, write the word out and study it carefully. In gestures, some that are considered friendly or supportive or positive in one culture are deemed highly obscene in another, and there’s a current battle right now to take the “okay” hand gesture and make it into an offensive White Power sign. So, we know that there’s nothing in the combination sounds or letters or gestures by themselves that is automagically offensive. Despite this, we still prosecute, persecute, and even execute people for using certain words. Why? Well, you might say, words really can cause harm or offence, and I would absolutely agree, they sure can, but I’d also say that people can and do cause all kinds of lifelong, appalling psychological harm without ever once using swearwords. They just do it in polite, neatly coiffed, buttoned and brushed up language instead. In short, we treat this ill-defined class of words like they’re somehow special or different, but in reality, swearwords don’t have extraordinary, supernatural powers… or do they?
Know thy dark words
Day-to-day, most people rarely think about swearing and bad language. Typically if we do think of it, it’s because we’re trying not to use it in front of children, or we’re on some sort of New Year’s Resolution to cut down for the betterment of our mind and being, or we have some other generally unexamined efforts towards being a better person. And already you can see that swearing, bad language, dirty language, ungodly language, has an intriguing morass of connections with issues like hygiene, morality, and, as we’ll go on to see, class, masculinity, femininity, and more besides.
When you put swearwords under the microscope, it turns out that there are, very roughly, five categories. Some researchers go a little crazy and have fifteen, others have two or three, but for this podcast, five is a nice number. The category that many use as a sort of catch-all, and indeed the one I’ve mainly used so this far through this episode, is the term swearing, but in academic research it tends to used in a more limited sense to refer to aggressive or frustrated words. In reality, that’s a terrible definition, because, over the course of years, I have trained myself to say things like shut the front door and fluffing heck when around little ears. Those are still expressions of pain if I’ve just banged my elbow, or frustration if I can’t get a jar open, so are they swearing? I think we’d say, probably not. But you should know that this is how swearing can be defined.
The second term is profanity, and the clue is in the name. If you think about profane, this is often used as an antonym – an opposite – of sacredness and godliness. Meanwhile, synonyms – that is, other words that are similar to profane, include words like secular, worldly, earthly, impious, irreverent. Profane words, then, run from exclamations like Jesus H. Christ through to God dammit. Back in the day, when we were a little more afraid of being smited, people would say things like gadzooks! and zounds! which were deliberate manglings of the phrases God’s looks and God’s wounds. The idea was that openly using the Lord’s name in this way was too close to sacrilege, but by disguising it a little, we could have our profanities and utter them too. It’s a charming notion, but it’s rather perplexing. Surely an almighty, omniscient being with the power to identify anyone anywhere using his name profanely would also have the capacity to see through a little bit of linguistic garbling. Like, he could just… read our minds. And hear us literally discussing why we were using these terms.
Anyway, the third category is interwoven with the one before, but it’s like profanity plus. This one is blasphemy. The crucial difference between the two is that profanity just uses some religious name or iconicity in an almost incidental way, to strengthen the utterance. By contrast, blasphemy attacks that religious figure or belief, so, hang onto your hats here because this is the one people do get very sensitive about. Examples would include burning a sacred text, or if I said fuck you, and fuck your god too. If you had a god, that would be pretty clear-cut blasphemy. In plenty of countries, blasphemy is very illegal. Some places it will just get you locked up for a long time. Other places, it will have you tortured and executed in the most barbaric ways imaginable. And across those different countries, the application of those laws can be heavily skewed towards protecting the dominant religion and persecuting minority religions. There are some intriguing overlaps between these laws and those dealing with anarchy and treason – the Patriot Act from the United States is just one that springs to mind – but this is a huge topic for a whole other podcast, so let’s move on.
The fourth category is obscenity, also sometimes known as taboo or indecent language, and this has several subcategories. As words like obscene, taboo, and indecent suggest, this is stuff that tends to be thought of as dirty or dangerous – the sorts of things one doesn’t bring up at the dinner table because it will put people off their food or embarrass them. Or both. Classic examples are bodily functions, so words like shit. Then there are the carnal acts, ranging from the slapstick, like shag to that little black dress of swearwords, fuck. Some relate to specific kinds of, shall we say quality time, like bugger, wanker, cocksucker and so on. Others relate to incest, e.g. motherfucker, to parentage, e.g. bastard. Then, of course, there is the veritable carnival of words relating to body-parts: bellend, tit, arse, cunt, need I go on. The majority of informal intimate-body-part names double as insults ranging from amusing to so serious that they are consistently ranked as some of the most offensive words in the English language.
Some people also include within the obscenity category words relating to disease and death, though there is more argument about whether these are swearwords exactly, or just extremely uncomfortable topics, and of course, you can see clear overlaps between topics we don’t like to discuss, and swearing. Interestingly, whilst blasphemy gets lots of attention in countries with religiously informed legal systems, the obscenity category is the one that tends to get plenty of attention in secular – that is, non-religiously-motivated – legislation, and we’ll come back to that point later too.
Our fifth and final category is the one where the magic quite literally happens: cursing. For those who haven’t listened to it yet, I encourage you to go try out episode 06 of en clair, which is all about the Pendle Witch Trials because I say a bit there about prayers versus spells and so forth. For the purposes of this episode I’ll keep it brief, so in essence, a curse is a prayer or invocation to some higher – or one might say, to some lower power – to bring about an evil upon the hearer. A classic example would be God damn you! Literally asking for god to send you to hell. A less classic one: May you be forever plagued with videos that auto-play in your browser at full volume just as the boss walks past.
Overall, then, across the five categories, swearing is linked with loss of self-control, disrespect, baseness, malice, immorality, sex, disease, and death, and that’s just what we’ve looked at so far. I’ve already alluded to other connections with gender and class and power. But how did we get to this point where a tiny fraction of words in the English lexicon are now so inextricably tangled up with such a bizarre set of values?
Wince Philip: clangers, gaffes, or racism
The Duke of Edinburgh has a reputation for swearing and saying inappropriate, or even outright offensive things at public events. There are countless examples of articles published on or around Prince Philip’s birthdays which list a “gaffe” for every year of his life. In one example, it’s 1967, and His Royal Highness is asked if he would like to visit the Soviet Union. He allegedly responds,
I would like to go to Russia very much – although the bastards murdered half my family.
Unfortunately, a great many of these quotes are based on hearsay rather than evidence. One of the key exceptions is in 2015. At the 75th anniversary of the Battle of Britain, the then-94-year-old is captured on camera swearing impatiently at a royal photographer:
The audio is rather poor quality, so in case you couldn’t make it out, you can see him mouth, and just about hear the words,
Just take the fucking picture!
If you get a chance, do watch the video. It’s worth it if only for the subsequent close-up of Prince William’s face.
Anyway, it’s interesting to note how the press play this story out. They paint Prince Philip as an outspoken but lovable rogue who likes to cheekily breach royal decorum. His comments over the years have variously been described as “gaffes”, “clangers”, “off-the-cuff remarks”, or “plain speaking” (see, e.g. Press Association, 2017). He has been described as a “national treasure”, and has even been nicknamed “Wince Philip” for his tendency to make people cringe through his remarks (ibid.). Many of the quotes attributed to him, however, are less lovable rogue, more racist grandpa. In 1986 during a visit to China, he warned British exchange students,
If you stay here much longer, you’ll all be slitty-eyed.
I wish to god I was kidding.
According to a 2016 large-scale research project about offensive language by Ofcom – that is, the UK’s Office of Communications – terms like these are rated as amongst the most taboo and offensive by the British public. And yet, this China comment is frequently described in the press as an example of a “gaffe”. The media will have an actual cow about a working class teenager dropping the f-bomb in private conversation as the first signs of an impending apocalyptic mass-extinction event that will end the entire universe, but here, it laughingly reduces actual racist commentary by a member of the royal family right down to an unintentionally embarrassing or rude remark. Hang on to Prince Philip’s frankly mind-boggling social blank cheque, because we’re going to see some real examples of what happens when you’re not an old, white, upper class, wealthy, Royal dude.
Who’s offense?
Let’s return to London, but now we need skip forward three years to the 10th of March 2009. We’re in Bradstock Road where PC Challis and PCSO McIlvaney are looking for individuals suspected of carrying cannabis. Outside a block of flats, these officers search three men, including 19-year-old Denzel Cassius Harvey. Harvey objects to being searched and exclaims,
Fuck this, man, I ain’t been smoking nothing.
PC Challis warns him that if he continues to swear, he’ll be arrested under, you guessed it, §5 of the Public Order Act 1986. The officers do not find drugs in Harvey’s possession, and annoyed by the whole affair, Harvey says to the officers,
Told you, you won’t find fuck all.
When asked by PC Challis whether he has a middle name, Harvey responds,
No, I’ve already fucking told you so.
PC Challis then arrests Harvey under §5 of the Public Order Act 1986, and subsequently, the officer alleges that Harvey also assaulted him. Harvey is charged with two offences: assaulting a police officer, and using threatening, abusive or insulting words or behaviour contrary to section 5 of the 1986 act. He is only convicted of the §5 offence and is fined £50.
Harvey appeals, and two years later, a High Court judge overturns his conviction. The judge, Mr Justice Bean (yep, that’s his real name) argues that the two police officers provide no evidence that they were caused harm, or that they felt alarm or distress at Harvey’s language. In fairness, someone who is distressed by words like fuck this is likely to find policing an unsuitable career choice. Instead, however, the officers argued that the arrest was justified because:
We believed that this was a public area in the middle of a block of flats: there were people around who do not need to hear frightening and abusive words issuing from a young man. It was not only the words but the tone in which they were said which causes alarm.
Interestingly, Mr Justice Bean astutely notes a switch in tense in this statement, from past tense throughout, to present tense right at the very end. Notably, present tense lends itself to making sweeping truisms, so consider: “This caused alarm” refers to something that happened in the past. By contrast, “This causes alarm” could either be a statement of an event happening live, in real-time, or a generalised truism that occurs on all occasions for all people.
Anyway, Mr Justice Bean clearly has an eye for detail, and from this he questions whether the officers’ statements are findings, facts, or general propositions. He also notes that it is not illegal in the UK to swear in public, per se – rather, it is illegal to cause alarm, distress, or harassment using threatening, abusive, or insulting language. In other words, phrases like “fuck off” or “fuck you” have the potential to be abusive, especially since they can be directly targeted at someone. However, that wonderfully versatile word, fuck, the blue jeans of our vexicon, is capable of acting in a dozen different capacities in English. It can be an intensifier: this is fucking awesome. It can be an exclamation: well, fuck. It can be all kinds of verbs, including fuck that shit up, fuck about wasting time, fuck someone over, and, well, just fuck – as in, sex. It can even be one of our rarest linguistic affixes in English, the infix, as in the word, abso-fucking-lutely. We can give zero fucks about something. We can know fuck all. We can be bored, tired, or hungry as fuck. We can podcast the fuck out of swearing, and in the most perfect turn of phrase in any language anywhere, we can, in Scotland, get tae fuck.
What should be clear here, hopefully, is that most of these examples that I just ran through are not threatening or abusive. Most of them. You can go back and count if you like. I did. You may not like the word, and you may hate to hear it out on the street, but you would have a hard time arguing that uses like you won’t find fuck all, or it’s fucking raining, are abusive – that is, personally insulting. So it’s not the form that matters. It’s the function. And just to round this off, Mr Bean finishes by noting that the bystanders were not even asked whether they were caused alarm or distress, so how could the police really know? The officers were, of course, inferring offence, and we come back to this shortly.
Intriguingly, the gay horse, the barking dogs, Prince Philip, and this last case all trigger quite different reactions from the public, and as with so many crimes and convictions, there are depressing themes to be found that relate to issues of race and privilege. Oxford University student, Sam Brown, found his case largely laughed over as a hilarious moment of banter gone wrong. Support was overwhelmingly in his favour. Yes, the public said. This was stupid, but it was late night high-jinks. The conviction being overturned was largely seen as a moment of belated common sense.
To a lesser extent, Kyle Little’s case also met with widespread incredulity. Man not allowed to bark at dog?! the journalists cried. What freedom will we have revoked next! So when this conviction is also quashed, there is, again, a general sense of a wrong being righted. And we’ve already seen how Prince Philip’s various mind-boggling racism is laughed off as an amusing and eccentric old Royal being un-PC. He’s described as being one of the most controversial Royals, but also, by far the funniest. Given that he isn’t a remotely a comedian, we can only assume here that the humour is to be found in his swearing, rudeness, and offensiveness. Indeed, in a 2017 Telegraph article about Prince Philip’s “greatest gaffes and funniest moments”, the incident where he swears at the photographer and tells him to just take the fucking picture already is listed as number 38 (Horton & Midgley, 2017).
By contrast with these three cases, when Denzel Harvey’s conviction is overturned, the reaction is very different. The vice chairman of the Police Federation, Simon Reed, responds:
It’s astounding that you can use every swear word to abuse a police officer and they have got to accept it just because it is common. This gives the green light for everyone to swear and use disorderly behaviour with police.
The Scotland Yard Commissioner, Bernard Hogan-Howe expresses deep disappointment at Mr Justice Bean’s ruling, and adds:
It is not acceptable to be sworn at for anybody, so why would it be any more acceptable for a police officer? Even if you accepted that argument, then it doesn’t look too good, does it, in terms of respect? A police officer challenges a suspect about something and they stand there being abusive. I just don’t understand how that works. So I am deeply disappointed by the decision, but I respect the fact that apparently it is a statement of the law.
Even the then-Lord Mayor, currently Prime Minister Boris Johnson chimes in, stating that:
Public servants are not there to be abused – they are there to serve society and society must respect them. How can a copper cope with the job if the public are allowed to insult them with impunity?
Yes. He really did use the word copper.
Moving on, you can imagine what the tabloids also make of this story. Certain quarters of the press and public hold this case up as a travesty. It will, they say, encourage others to challenge their convictions and possibly even win damages in compensation if they are found to have been wrongfully arrested. Oh no. Compensation if the justice system has mistreated you. How terrible.
Feel free to insult me
The three cases of Sam Brown – the gay horse guy, Kyle Little – the barking guy, and Denzel Cassius Harvey – the fuck all guy, as you might remember, all involved arrests under §5 of the Public Order Act, which prohibits “using threatening, abusive or insulting words or behaviour”. In the end, their cases either never go to court, or their convictions are overturned on appeal. The reactions to Harvey’s outcome is different in the end, yes, but despite these fractures and contradictions in public attitude, there is a general sense of unease with these uses of the Public Order Act. A campaign to reform §5 is launched, under the slogan Feel Free to Insult Me. As it turns out, when the campaign takes off and people start sending in their experiences, lots of people have been arrested under §5 for anything from showing biblical passages on television to, well, barking at a pair of chocolate Labs. In fact, in the two years between 2001 to 2003, a total of 51,285 people were arrested for some violation or other of §5.
As a result of the campaign and growing public condemnation of cases like Sam Brown and Kyle Little, in 2013, at last, a little light makes its way into the ledgers of the Public Order Act 1986. With a few strokes of some important pens, the House of Lords remove the word “insulting” from the law, so that it now prohibits, roughly, using threatening or abusive words or behaviour. The word insulting alone has been responsible for many of the most ridiculous cases, because it is so wildly subjective, broad, and unsystematically applied. After all, someone can be insulted by a terrible birthday present, but that shouldn’t land them with a criminal conviction for a Public Order Offence. Unless it’s a really ugly sweater. Alongside this, there was also the issue of quite who was supposedly being insulted. Was the police horse insulted? Were the dogs? Was the potential wronged party some random bystander? Maybe people inside nearby buildings could hear and be insulted. Maybe the insulted parties are purely hypothetical and didn’t exist at all – perhaps they were just an imagined audience that might turn up. A mythical coach of devout pre-schoolers being driven to church that just happened to park up, all windows open, right there in time to hear some very different words about God. Whatever the case, the amended law now makes it clear that there must be a clear and specific victim or victims for a prosecution to take place. The police can no longer simply attribute feelings to someone, or imagine what Anne of Green Gables might have felt had she been real, and stood there.
In another episode, at another time, I’ll delve into the history of swearing and bad language – its twists and turns through royal palaces and dusty old courtrooms into mainstream novels and onto the glittering screens of our televisions, causing, as it goes, ever louder torrents of anxiety and amusement, censorship and insurgence. But for this episode, let’s give the last word to one of language’s greatest heroes, Stephen Fry, and his especially interesting take on swearing…
Outro
This episode of en clair was researched and fact-checked by Rebecca Jagodziński. And it was scripted, narrated, and produced by me, Dr Claire Hardaker. However this work wouldn’t exist in its current form without the prior effort of many others. You can find acknowledgements and references for those people at the blog. Also there you can find data, links, articles, pictures, older cases, and more besides.
The address for the blog is wp.lancs.ac.uk/enclair. And you can follow the podcast on Twitter at _enclair. If you like, you can follow Rebecca on Twitter at RjJagodzinski, and you can follow me on Twitter at DrClaireH.