Art and the Law: Obscene Publications

16 Feb 16

	Child Protection: PDF | web Counter Terrorism: PDF | web Obscene Publications: PDF | web Public Order: PDF | web Race and Religion: PDF | web Art and the Law home page
	Case studies • Behud – Beyond Belief • Can We Talk About This? • Exhibit B • “The law is no less conceptual than fine art” • The Siege • Spiritual America 2014 Commentary • Julia Farrington: Pre-emptive censorship by the police is a clear infringement of civil liberties • Julia Farrington: The arts, the law and freedom of speech • Ceciel Brouwer: Between art and exploitation • Tamsin Allen: Charging for police protection of the arts • Gurpreet Kaur Bhatti: On Behzti • Daniel McClean: Testing artistic freedom of expression in UK courts
	Reports and related information What Next? Meeting Ethical and Reputational Challenges Taking the offensive: Defending artistic freedom of expression in the UK (Also available as PDF) Beyond belief: theatre, freedom of expression and public order – a case study • UN report on the right to artistic expression and creation • Behzti case study by Ben Payne • freeDimensional Resources for artists • Artlaw Legal resource for visual artists • NCAC Best practices for managing controversy • artsfreedom News and information about artistic freedom of expression
	These information packs have been produced by Vivarta in partnership with Index on Censorship and Bindmans LLP. The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street Chambers, Matrix Chambers and Brick Court. Supported using public funding by Arts Council England

Preface

Freedom of expression is essential to the arts. But the laws and practices that protect and nurture free expression are often poorly understood both by practitioners and by those enforcing the law. The law itself is often contradictory, and even the rights that underpin the laws are fraught with qualifications that can potentially undermine artistic free expression.

As indicated in these packs, and illustrated by the online case studies – available at indexoncensorship. org/artandoffence – there is scope to develop greater understanding of the ways in which artists and arts organisations can navigate the complexity of the law, and when and how to work with the police. We aim to put into context the constraints implicit in the European Convention on Human Rights and so address unnecessary censorship and self-censorship.

Censorship of the arts in the UK results from a wide range of competing interests – public safety and public order, religious sensibilities and corporate interests. All too often these constraints are imposed without clear guidance or legal basis.

These law packs are the result of an earlier study by Index: Taking the Offensive, which showed how self-censorship manifests itself in arts organisations and institutions. The causes of self-censorship ranged from the fear of causing offence, losing financial support, hostile public reaction or media storm, police intervention, prejudice, managing diversity and the impact of risk aversion. Many participants in our study said that a lack of knowledge around legal limits contributed to self-censorship.

These packs are intended to tackle that lack of knowledge. We intend them as “living” documents, to be enhanced and developed in partnership with arts groups so that artistic freedom is nurtured and nourished.

Jodie Ginsberg, chief executive, Index on Censorship

Foreword by Dominic  Johnson

Censorship, obscenity and freedom of expression reflect the higher question of what, in a particular time and place, is sayable or unsayable. Not all artists are intent on pushing the boundaries of this problem, but when we do so, our work might appear to others as too intense, too ugly, too beautiful, too crazy, too painful, too long, too weird, too personal, too pleasurable.

By being too much works of art or performance that reinvent the scope of the sayable will inevitably strain at the limits of aesthetic acceptability. The feeling of the work’s proximity might seem akin to being slapped in the face, held by the scruff or punched in the gut. Hence reactions they prompt – from individuals, communities, institutions, the media or the state – may themselves be profoundly physical, visceral and emotional, redoubling the perceived extremity of the initial provocation.

Beyond aesthetic extremity, a controversial work may also contravene other limits, be they cultural, social, political or legal. The effects of such transgressions attach themselves to artists, and may include financial burdens, stress from stigma or ridicule and institutional blacklisting. To avoid such effects, artists may clip their own wings, through anticipatory self-censorship, to inhibit the creative reach of one’s investigations as an artist.

Yet the conviction that an artist must be free to explore the limits of one’s personal and collective possibility can slip into cliché, or obscure the possibility that my freedom may sometimes impinge on the freedoms of others – curtailing, say, a viewer’s right to remain safe from personal discomfort, psychological upset, intolerance or hate, or the supposed dangers of moral turpitude.

As artists and audiences, each of us is intimately aware of one’s own limits. We may feel squeamish before representations of the spilling of blood, open wounds, sex or extremely intimate demonstrations. We might close our eyes or avert our gazes, fall fainting on the floor, intervene somehow, turn vandal or leave. A liberated state of making, showing and seeing art would welcome all our most sensitive, outraged and overwhelmed states: celebrating our sweaty palms, flushes and blushes, increased heartbeat, syncope, fight or flight. The extent to which such states can be provoked, without causing unwarranted harm or hurt or injury, is the test of how far we might go as artists and audiences, into the still-yet-uncharted territories of both the sayable and the unsayable.

Dominic Johnson is Senior Lecturer in Drama at Queen Mary University of London

Freedom of expression

Freedom of expression is a UK common law right, and a right enshrined and protected in UK law by the Human Rights Act(1) , which incorporates the European Convention on Human Rights into UK law.

The most important of the Convention’s protections in this context is Article 10.

It is worth noting that freedom of expression, as outlined in Article 10, is a qualified right, meaning the right must be balanced against other rights. Where an artistic work presents ideas that are controversial or shocking, the courts have made it clear that freedom of expression protections still apply.

As Sir Stephen Sedley, a former Court of Appeal judge, explained: “Free 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 Director of Public Prosecutions, 1999).

Thus to a certain extent, artists and galleries can rely on their right to freedom of expression under Article 10 of the European Convention on Human Rights: the right to receive and impart opinions, information and ideas, including those which shock, disturb and offend.

As is seen above, freedom of expression is not an absolute right and can be limited by other rights and considerations. While the Crown Prosecution Service (CPS) and police have a positive obligation to promote the right to freedom of expression, they also have a duty to protect other rights: to private and family life, the right to protection of health and morals and the protection of reputation.

Obscene publications offences explained

Obscene publications are governed by the Obscene Publications Act 1959 and the Obscene Publications Act 1964. The 1959 Act sets out the legal test for obscenity and creates certain offences and defences.

Section 1(1) of the Obscene Publications Act (OPA) 1959 describes an “obscene” item as one that has the effect of tending to deprave and corrupt persons likely to read, see or hear it. This statutory definition is largely based on the common law test of obscenity, as laid down in the case of R. v Hicklin (1868) L.R. 3 Q.B. 360, namely:

In cases such as Lady Chatterley’s Lover [R. v Penguin Books Ltd (1961)] and the prosecution of the publishers of Last Exit to Brooklyn [R. v Calder and Boyars Ltd (1969)] the courts have defined “deprave” as meaning to make morally bad, to debase, to pervert, or corrupt morally, and “corrupt” as meaning to render morally unsound or rotten, to destroy moral purity or chastity, to pervert or ruin a good quality, and to debase or defile.

An item covered by the OPA is referred to as an “article”. Section 1(2) broadly defines an article to include works that can be read or looked at, including recordings, films and pictures (including negatives of pictures, under Section 2(1) of the OPA 1964).

The nature of material that can be held to be obscene is not limited to material of a sexual nature. In fact, it has been held by the courts that material glamourising, or inducing, potentially dangerous behaviour, such as drug taking, may amount to an “obscene” publication [Calder (Publications) Ltd v Powell [1965]].

The intended viewer or recipient can be a specific individual or a group.

The Theatres Act 1968 applies a similar definition of obscenity to plays and performances. Section 162(1) of the Broadcasting Act 1990 extends the concept of “publication” under the OPA 1959 to include live programme material.

Other offences may be relevant to this area. In R. v Gibson (Richard Norman) [1990], earrings made from human foetuses displayed in art gallery were found to be “obscene”. However the court held that “obscene” had the limited meaning of corrupting public morals as defined in Section 1(1) of the OPA 1959. Therefore, a prosecution brought not under the OPA but under the common law offence of outraging public decency was not precluded, because the purpose of the common law offence was to protect the public from feelings of outrage by such exhibitions. Outraging public decency has two elements. First, there must be a lewd or disgusting or obscene act that outrages minimum standards of public decency as judged in a contemporary society. Second, the act must be in public view, accessible or within view of the public so it is capable of being seen by at least one person, and it must be in the presence of two or more people, regardless of whether they actually witness the act or are outraged by it.

There are also specific but separate offences relating to extreme pornography and the protection of children. Please refer to the pack regarding child protection law for more information.

Under Section 2(1) of the OPA 1959 there are two kinds of offences relating to publishing obscene material. The first deals with showing and distribution, the second with possession of an obscene article with the intention of showing or distributing it.

Section 2(1) of the OPA states that a person commits an offence if they publish an obscene article, whether or not they do so for gain. “Publish” is widely defined in Section 1(3) of the OPA and includes distributing, circulating, selling, hiring, giving, lending, showing, playing, projecting and electronic transmission.

A person also commits an offence if they are in possession of an obscene article intended for publication for gain. This is intended to catch situations where an item is in a person’s possession but not yet on display. “Gain” is broadly defined. Section 1(5) of the OPA 1964 defines it as to “accrue by way of consideration for the publication or in any other way.” “Consideration” will cover financial advantage. However, “any other way” is not defined further so the exact parameters of this form of offence are unclear.

This means an artist or presenter could be convicted if it is proved that a work in their possession but not yet on show is obscene, if there was a proven intent to share the work with others, and if they expected to gain financially as a result. It could also cover situations where the intention is to display the work free, for publicity or to deliberately promote a reputation for notoriety.

Works that fall outside of the scope of the OPA may come under the Theatres Act or the common law offence of outraging public decency, while possession of extreme pornographic images could fall under the Criminal Justice and Immigration Act 2008.

As mentioned above, material of a sexual nature can be deemed to be obscene, but the definition can also cover other items such as material advocating drug taking or violence. Work that may engender revulsion, disgust or outrage may be covered by the offence of outraging public decency. The purpose or intention of the artist or gallery, however noble or otherwise, will be immaterial to whether something is deemed to be obscene or to outrage.

Unfortunately, the concept of what is indecent or obscene is not clearly or succinctly defined in UK law and many of the applicable laws are couched in oblique terms and leave scope for subjectivity, especially as behaviour will be judged against prevailing standards. There is a risk that lack of clarity and certainty can lead to inconsistency in the approach the police and Crown Prosecution Service take toward works of art, and freedom of expression may be compromised because of over caution or sensitivity.

The UK laws applicable in this case include:

• Common law offence of outraging public decency „
• The Obscene Publications Act (OPA) 1959 „
• The Obscene Publications Act (OPA) 1964 „
• The Theatres Act 1968 „
• Protection of Children Act 1978 „
• Indecent Displays (Control) Act 1981 „
• Video Recordings Act 1984 „
• Criminal Justice Act 1988 „
• The Broadcasting Act 1990 „
• Postal Services Act 2000 „
• Criminal Justice and Immigration Act 2008 (covering the definition of “extreme pornography”)

Prosecuting and investigating authorities will have to balance the right protected by Article 10 of the European Convention on Human Rights against the rights and freedoms of others, including any people involved or a young audience. The offence itself under the OPA 1959 has been found to be compatible with the ECHR [R. v Perrin (Stephane Laurent) [2002]].

If the works or performance can be construed to be of an extreme sexual nature or to advocate the use of weapons, drugs or violence, or likely to cause public outrage then the artist’s right to freedom of expression may carry less weight [R. v Hicklin; R. v Saunders; R. v Gibson]. It is useful to remember that the people who reach a view on this may hold more conservative views than your own. For that reason, it is important to be aware of the risks and to mitigate them by careful preparation.

Galleries (and their staff, officers or directors) may be committing a criminal offence, if, for example, they sell, show or distribute work that is considered to be obscene or which causes public outrage. You should review and document your professional approach to work that includes extreme sexual images or could be seen as advocating activities harmful to the public such as the use of weapons, drugs or violence. This will help you prepare a stronger case for arguing that prosecution would not be in the public interest if police investigation or charges are possible. Take legal advice. The investigation alone may leave a record that may be disclosed by the police, if, for example, you seek to work with children or vulnerable people in the future.

There are very limited defences to offences under the OPA 1959 that apply if a court decides that an item is obscene. The accused may assert that they had not seen the works or had no reason to believe that the works were obscene. Alternatively the accused may assert that their actions were for the public good, as defined by Section 4 OPA 1959. Under Section 4 there will be no conviction and works may not be confiscated if it is proved that the work in question is presented in the interests of science, literature, art or learning, or other reasons of general public concern, including ethical merits. “Learning” is to take its normal meaning of “being the product of scholarship, something with inherent excellence gained by the work of a scholar” [DPP v. Jordan (1977) A.C. 699]. To succeed with this defence, the court or jury must be satisfied on the balance of probabilities that the publication was made for the public good.

Under Section 4 of the OPA, the court would need to consider, on the one hand, the number of people they believe would be depraved or corrupted by the work, the strength of the work’s tendency to deprave and corrupt, and the nature of the depravity and corruption depicted. On the other hand, the court must consider the work’s artistic merit. The accused would need to prove that publication or other public presentation was justifiably in the public good, having weighed all these factors.

There is a slightly different “public good” defence for performances, films and soundtracks. Here it applies if publication of the film or soundtrack is justified as being for the public good because it is in the interests of drama, opera, ballet or any other form of art, literature or learning.

The public good defence applies only to offences under the OPA and Theatres Act and not to any other offences such as outraging public decency or possession of extreme pornographic material.

A person charged with an offence under the OPA has a right to ask to be tried by a jury. It will be up to the jury to decide if an article meets the test for obscenity set out in Section 1(1) of the OPA. The jury will need to consider the nature of the article, what the accused was doing with it, where it was shown, the likely audience and prevailing social and cultural standards.

The powers of the police and prosecuting authorities

The Crown Prosecution Service, the police and the courts have positive obligations to promote freedom of expression, but are also required to protect rights to private and family life, and, in the context of freedom of expression rights, the protection of health and morals, and the reputation or rights of others. The CPS must reasonably consider that bringing a prosecution is in the public interest and must make that decision after balancing these competing rights.

The police have the right to enter and search premises and to seize artworks in certain defined circumstances. Under Section 3 of the Obscene Publications Act 1959, a magistrate may issue a warrant to search premises for obscene materials and seize articles for forfeiture. More generally, under Section 19 of the Police and Criminal Evidence Act 1984 (PACE), the police may seize anything on the premises if the officer has reasonable grounds to believing that it has been obtained as a result of an offence or evidence of one. The officer must be on the premises lawfully, such as being on public property, carrying a warrant or have been invited in. Section 8 of PACE allows a magistrate to issue a warrant to search a premises if a serious offence has been committed. Section 18 refers to the power to enter and search premises occupied or controlled by a person who has been arrested.

If items are seized, the police may apply to the court for forfeiture, and permanently confiscate the work. They may additionally investigate whether anyone has committed a criminal offence. As part of the investigation they may arrest the artist and gallery staff, and conduct interviews under caution.

In all cases the CPS will consider whether there is sufficient evidence for a realistic prospect of conviction, including whether the alleged offence comes within statutory or common law, the definition of the offence and whether any defence is likely to succeed. If the CPS decide that there is enough evidence for a realistic prospect of conviction, they will then need to consider if it is in the public interest to prosecute, taking into consideration the right to freedom of expression and the competing rights of all involved.

Practical guidance for artists and arts organisations

This guidance applies if you are considering displaying, performing and screening any works where obscenity issues might arise, whether of an extreme sexual nature, involving extreme violence, drug taking or actions that cause public outrage. The guidance also applies where artworks are interdisciplinary and/or site-specific, acknowledging that performance art, an area of artistic practice where these boundaries are tested, tends not to conform to any single form, media or mode of presentation.

Consider the following preparatory steps.

• Make your motivation and reasons for making or displaying the work clear and why you consider the work to have artistic merit. „
• Provide the context for the work, what the artist is seeking to achieve, their previous work, the role of controversy in their work. „
• Consider the public interest in this work and how it contributes to a wider debate in society.
• Keep a clear written record of your reasons and your decision making process. (See Appendix 1 for an example of written record). „
• Remember that the right to freedom of expression includes the right to express ideas and opinions that shock, offend and disturb. „
• Consider factors to be balanced against the right to freedom of expression – including the level of offence or harm that might be caused, the type and number of people likely to be affected and steps you have taken to mitigate any potential offence. „
• Consider advising the audience on content or restricting access to over 16/18. This should be factual advice not evaluative – so say that it is “sexually explicit” rather than “may be offensive”. „ Demonstrate an awareness of previous similar displays that have been successfully exhibited or presented. „
• Review (media and other) reactions to recent artworks with an awareness that the work will be judged against current recognised standards of propriety and decency, which is a fluid test. „
• If the work may be viewed by children, refer to local authority child protection policies.

As a matter of good practice you might want to prepare a commitment to artistic and intellectual freedom of expression. (See box for a sample statement based on a template by the National Coalition Against Censorship in New York.)

This could be accompanied by a policy that sets out the way you will handle controversial exhibitions or performances. This should include clear creative and managerial curatorial procedures, arrangements to deal with individual complaints and how the press will be handled. There is useful information on this on http://ncac.org/resource/museum-bestpractices-for-managing-controversy/. Such a policy can be drafted with the help of a lawyer or other arts organisations with experience of exhibiting controversial works. Consider contacting the appropriate police officer responsible for community relations in your area. A good understanding of the nature of the work presented in your venue could be invaluable if the police receive complaints about your work. This is particularly important where controversial works are to be presented in small, rural or conservative communities where there is a greater risk of causing offence or where police officers are unused to the concept of freedom of expression in art.

Advance preparation should bear in mind the principal legal standard of “reasonableness”. The factors relevant to meeting that standard may include:

• The artistic purposes of an organisation. „
• Engagement with the authorities; making early contact will make it easier for them to protect your right to freedom of expression. „
• Engagement with the press and individual complaints. „
• A willingness to make contingency preparations to manage the risk of any disorder, and subject to the imperative of ensuring that the artistic work is not unduly constrained.

If you think the work may be borderline or cross over the line (remember at this stage you need to apply the probably conservative standards of members of the local community, or local police officers, not your own standards), it would be best to take legal advice so that you can be advised on the risks.

We recommend that you document the decision making process carefully (see Appendix 1). Such a record will be helpful in preparing a response to any police enquiries, and will be useful in responding to protesters and critics, even if no legal action is proposed.

In the case of doubt consider contacting a lawyer with relevant expertise. If you are contacted by the police with regard to a particular work, project or programme, contact a lawyer. If the police seek to remove or prevent the presentation of a work, seek legal advice urgently.

Questions and answers

Q. What is the difference between Article 10 of the European Convention on Human Rights and Article 19 of the UN Declaration on Human Rights?

A. Freedom of expression, as outlined in Article 10, is a qualified right, meaning considerations regarding its protection must be balanced against other rights and interests. Article 19 of the UN Declaration on Human Rights, which also addresses freedom of expression, is less qualified: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Nevertheless, even within the UN Declaration there are provisions that contemplate some qualification of the freedom expressed in Article 19. It is the European Convention on Human Rights that is currently relevant to UK law.

Q. Can I challenge a decision by a local authority or police body?

A. Yes. The usual way of doing so would be via judicial review. You should seek specialist legal advice before bringing your claim. Be aware that you must bring your claim as soon as possible and in any event no later than three months after the decision you are challenging. Judicial review is not ordinarily an effective means of quickly overturning decisions. Claims may take many months to be heard. However, it is possible to apply for a claim to be heard quickly if there are good grounds to do so. Even if you succeed you will not usually recover damages: they are awarded at the court’s discretion. The court might quash the decision under challenge, and/ or require the public authority to adopt a different procedure in its decision-making.

Q. What are the costs to the organisation calling for review? If the review finds in favour of the arts organisation – is compensation payable and are expenses reimbursed?

A. There would be court fees for filing the review, as well as the need to pay legal costs to their own lawyers (unless acting pro bono) and the risk of being required to pay legal costs for the opposing party if they succeed. If the arts organisation succeeds, it may be entitled to reimbursement of expenses (usually around 60- 70%) and it may be entitled in some cases to an award of money by the court.

Q. Does it make a difference if a contested display is outside the venue?

A. No, the location of a display will not make any difference to prosecutions under obscenity laws. Outside displays could also expose an artist or gallery to liability under the Indecent Displays (Control) Act 1981 (IDCA). The IDCA does not apply to displays in an art gallery or museum and visible only from within the gallery or museum. However, a display projected onto the outside wall of a gallery would not be covered by this exception. Outside performances and presentations may escape indecency or obscenity charges but still fall foul of the common law of public nuisance if the effect of the act is to endanger “the comfort of the public,” and may cover offensive or potentially dangerous behaviour in public.

Q. How do the CPS and the courts decide if an image is obscene?

A. The OPA 1959 states that an image or item is obscene if its effect is such as to tend to deprave and corrupt persons likely to read see or hear it. The courts have considered the definitions of “deprave” and “corrupt” in cases such as R v Penguin Books Ltd (1961) and R v Calder and Boyars Ltd (1969). (See the section on the OPA above regarding definitions of “deprave” and “corrupt”.) The CPS will apply this definition when considering whether to prosecute.

Q. What are the legal issues affecting the relationship between artist and arts organisation?

A. If an investigation begins before the work is shown, those involved in its proposed presentation may face charges such as conspiracy to outrage public decency, possession of extreme pornographic images or being in possession of an obscene article for publication for gain. If the gallery has not seen the work and has no reason to suspect its nature, it might have a defence on those grounds. Since this defence may well be contested by the artist or others involved, all should have a clear understanding of the work and its intent, its intended audience and how it will be presented.

Once the work is on display, both the artist and the arts organisation may face charges such as publishing an obscene article, outraging public decency or possession of extreme pornographic images. It is important that both the arts organisation and artist have a clear understanding of the issues involved and the artistic merit of the work, why it is thought appropriate for the work to be shown to the public and any steps taken to protect any vulnerable groups.

Q. Does “artistic merit” impact the extent to which an artist’s freedom of expression will be protected?

A. It is more likely that a gallery or artist will be permitted to display controversial works if they are well known and if it is generally considered that the work has artistic merit. This is something that may not be obvious to some non-specialist police officers, though reference to the Metropolitan Police Arts & Antiquities unit or officers dealing with conventional pornography, may be of assistance when contextualising and explaining the work’s importance.

Q. What defences does the gallery/theatre potentially have?

A. The gallery could seek to argue that the work is not obscene and will not “deprave” or “corrupt” those likely to see it. In some limited cases, it may be argued that it was unaware of the true nature of the work. The gallery may also be able to argue that the work was “for the public good” in cases investigated under the OPA. The gallery could also seek to argue that prosecution/ conviction would breach rights to freedom of expression. All of these defences have their limitations and will be dependent on the views that others take of the work.

If a gallery has taken the steps recommended in this guidance and considered the likely reasonable response of the public properly and in advance, there are reasonable prospects of heading off a prosecution or convincing a jury that the work was not obscene or that a defence should apply. However, you will need specialist legal advice tailored to your own circumstances.

Theatres may be able to argue that the work is not obscene or rely on the “public good” defence applicable to theatres.

Q. What decisions are the police able to take and how can they implement these decisions?

A. The police can seize work under search warrants or as evidence for future prosecution. They can also seize work under a warrant for forfeiture issued by the magistrates court under Section 3 of the Obscene Publications Act 1959. The police can arrest and/or interview under caution people they believe to have committed criminal offences. Where there is a hate crime element police will refer the case to the Crown Prosecution Service. Where the case is suitable for disposal in the magistrates court, the police may charge it without reference to the CPS. There will be an opportunity to influence police investigations by preparing well for interviews and ensuring that the police have access to all the relevant evidence that may assist. Decisions of the CPS can be influenced by making written representations about the evidence, any defences such as “public good” and the lack of public interest in prosecuting, which may include reliance on Article 10 of the European Convention on Human Rights.

Q. Do I have to give the script of a play or images I intend to exhibit to the police or local authority prior to the show opening if requested?

A. You only have to provide a copy of a script (or any document or property) if the police or local authority has a legal power to view and seize that material. Under Section 10 of the Theatres Act 1968, a senior police officer can make an order requiring the production of a script of a play if s/he has reasonable grounds to suspect an obscenity offence has been or will be commited, or the play involved or is likely to involve the use of threatening abusive or insulting words or behaviour performed with the intention of provoking a breach of the peace, or if the performance created or is likely to create a breach of the peace. An order under that section empowers any police officer to require the person named in the order to produce a script of the play and to allow the officer to make a copy of it.

If a local authority or the police ask to see particular artistic material you should ask them to clarify whether they are demanding that you hand over the material, or whether they are simply asking for your voluntary co-operation. If they are demanding that you provide the material, ask them to identify the legal power that gives them the right to do this and ask to see a copy of any order made under the Theatres Act 1968.

You should make a contemporaneous note of their answers. If the police are simply seeking your voluntary co-operation then you do not have to give them anything. If in doubt about the scope of their powers, consult a lawyer.

Q. What potential measures can arts organisations’ directors take if the police try to seize artworks?

A. Gallery directors could seek to explain the artistic merit in the work and argue that they are showing work for public good. They could consider agreeing to take the work down voluntarily pending a discussion about the merits of the work. If you have documented the reasons for exhibiting the work and established good relations with the police, you will be in a stronger position to ensure that the exhibition can go ahead. Be careful about resisting physically or engaging in a heated debate with officers who could then arrest you for obstruction.

Q. Is there a right not to be offended?

A. Under UK law there is no legal right not to be offended. The European Court of Human Rights has stated on numerous occasions that the right to freedom of expression includes the right to shock, disturb and offend.

Q. In general is it a good idea to cooperate with the police?

A. Yes, in general, it is, for both practical and legal reasons. For practical reasons, as a matter of common sense, the more cooperative and constructive an artistic body appears to be, the less likely it is that the police would move precipitously to shut down a work. For legal reasons, conveying information to the police about the purposes of a work, and a willingness to consider alternatives, will be relevant to the reasonableness test.

Q. What happens if police advise you not to continue with something / take it off as they have unspecified concerns about public safety – but tell you it is your choice and they can only advise you?

A. The artist would in principle be free to continue with the work. It would be advisable, however, to ensure that the reasons held by the police were understood and that the artist seeks legal advice. It will be useful to establish the reasons why the police are making such a recommendation, and important to understand what criteria the police will apply when deciding whether to take further action later.

Appendix I: Documenting and explaining a decision

Please note: Appendices are only examples and should not be relied upon in individual cases. They are not a substitute for specialist legal advice tailored to your particular circumstances.

Example: A gallery seeks to exhibit a video of dressed and semi-naked men instructing each other in the practice of extreme sexual acts, made by a well-known visual artist who has previously exhibited photographs documenting LBGTI communities. The gallery owner decides the work has value and should be exhibited. The decision might be documented as follows:

1. The artist seeks to challenge the boundaries of photographic depictions of the LGBTI community.
2. The work is made in response to a debate of general public interest – society’s approach to the portrayal of the LGBTI community.
3. The work has artistic merit and the artist has sold/exhibited numerous copies of previous works that have been positively reviewed (give examples) and has works in major art collections.
4. There is a public interest in freedom of artistic expression itself and we consider that this is work of value which should be seen exhibited and viewed so as to further an important debate.
5. We recognise that there is a risk the work may be misunderstood by some individuals and so cause undue offence or concern. Accordingly, we and the artist have taken steps to ensure children are adequately protected including:
   1. We have confirmed that informed written consent was given by participants and the artist has confirmed this in writing.
   2. We have considered whether or not our advertising material should contain warnings that the exhibition contains images which are sexually explicit.
   3. We have considered whether or not we should issue advice or put a warning on the entrance to the gallery that the show is not suitable for children under 16/18.

Example: A festival wishes to present a stagebased performance involving body piercing, bodily fluids and female nudity at a high profile publiclyfunded theatre. The theatre decides the work is formally and conceptually compelling and should be presented. The decision might be documented as follows:

1. The festival is well respected and recognised as supporting challenging and risk-taking work.
2. The theatre is known for working in partnership
3. The artist seeks to confront/challenge/respond to questions of representations of the human body.
4. This work is made in response to a debate of general public interest – society’s approach to the human body.
5. The artist is a young practitioner whose talent is championed by a number of distinguished scholars, writers, artists and producers.
6. There is a public interest in freedom of artistic expression itself and we consider that this is work of value which should be seen to further the debate.
7. We recognise that there is a risk the work may be misunderstood by some individuals and so cause undue offence or concern, and have taken measures to address this.
8. We have ensured that the promotional material contains appropriate advice about challenging images which may cause offence/not be suitable for children under 16/18.
9. Similar advice will be on the entrance to the theatre and in the event freesheet.
10. A post-show discussion has been organised to enable the artist, organisers and audience to debate the issues and confront controversial topics in a safe and supportive environment.
11. We recognise that the work contains actions and materials which may raise health and safety concerns.
12. We have conducted a risk assessment and put a number of protocols in place in collaboration with the artist and venue to ensure there are no health and safety breaches and that the artists, audience and venue staff are not at risk.
13. We have consulted with the trustees of both the festival and the venue.
14. We have briefed all front of house and other relevant staff on the nature of the work and possible causes for concern by the audience and informed/involved them in the above decision-making process.

Footnotes

1 At the time of writing (August 2015), the government is considering abolishing the Human Rights Act and introducing a British Bill of Rights. Free expression rights remain protected by UK common law, but it is unclear to what extent more recent developments in the law based on Article 10 would still apply

Five areas of law covered in this series of information packs

• Obscene Publications
• Child Protection
• Counter Terrorism
• Public Order
• Race and Religion

They can all be downloaded from www.indexoncensorship.org/artandoffence or order a print copy from [email protected] – postage will be charged.

Editors’ note

As with the other documents in this series, this booklet is intended as an introduction to the legal framework that underpins the qualified right of freedom of expression enjoyed by artists and arts organisations in the UK. We hope that it will be of some assistance to artists, artistic directors, curators, venue management and trustees and others who seek to protect and promote artistic freedom of expression, especially when planning to programme challenging and controversial works.

This pack is not a substitute for legal advice. If you are unsure about your responsibilities under the law at any time, you must obtain independent specialist legal advice. Some of the lawyers at work in the sector at time of publication are listed on the website.

Legal Adviser: Katie Wheatley, Bindmans LLP

Editorial team: Julia Farrington – Associate arts producer Index on Censorship/Vivarta

Jodie Ginsberg – Chief executive, Index on Censorship

Rohan Jayasekera – Vivarta

These information packs have been produced by Vivarta in partnership with Index on Censorship and Bindmans LLP.

Acknowledgements

The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street, Matrix Chambers and Brick Court.

The packs have been designed and printed by Clifford Chance, Greg Thompson, Design Specialist, Document Production Unit

Art & the Law – Obscene Publications – A Guide to the Legal Framework Impacting on Artistic Freedom of Expression is published by Vivarta. This publication is supported using public funding by the National Lottery through Arts Council England. It is licensed under Creative Commons CC BY 2.0, excepting where copyright is assigned elsewhere and marked accordingly.

Vivarta is a digital media news lab and advocate for free expression rights. As vivarta.org we help defend free expression through investigative reporting and creative advocacy. As vivarta.com we apply new digital media, security and situational analysis tools to support this work. The Free Word Centre, 60 Farringdon Road, London EC1R 3GA www.vivarta.org

Art and the Law: Race and Religion

16 Feb 16

	Child Protection: PDF | web Counter Terrorism: PDF | web Obscene Publications: PDF | web Public Order: PDF | web Race and Religion: PDF | web Art and the Law home page
	Case studies • Behud – Beyond Belief • Can We Talk About This? • Exhibit B • “The law is no less conceptual than fine art” • The Siege • Spiritual America 2014 Commentary • Julia Farrington: Pre-emptive censorship by the police is a clear infringement of civil liberties • Julia Farrington: The arts, the law and freedom of speech • Ceciel Brouwer: Between art and exploitation • Tamsin Allen: Charging for police protection of the arts • Gurpreet Kaur Bhatti: On Behzti • Daniel McClean: Testing artistic freedom of expression in UK courts
	Reports and related information What Next? Meeting Ethical and Reputational Challenges Taking the offensive: Defending artistic freedom of expression in the UK (Also available as PDF) Beyond belief: theatre, freedom of expression and public order – a case study • UN report on the right to artistic expression and creation • Behzti case study by Ben Payne • freeDimensional Resources for artists • Artlaw Legal resource for visual artists • NCAC Best practices for managing controversy • artsfreedom News and information about artistic freedom of expression
	These information packs have been produced by Vivarta in partnership with Index on Censorship and Bindmans LLP. The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street Chambers, Matrix Chambers and Brick Court. Supported using public funding by Arts Council England

Preface

Freedom of expression is essential to the arts. But the laws and practices that protect and nurture free expression are often poorly understood both by practitioners and by those enforcing the law. The law itself is often contradictory, and even the rights that underpin the laws are fraught with qualifications that can potentially undermine artistic free expression.

As indicated in these packs, and illustrated by the online case studies – available at indexoncensorship. org/artandoffence – there is scope to develop greater understanding of the ways in which artists and arts organisations can navigate the complexity of the law, and when and how to work with the police. We aim to put into context the constraints implicit in the European Convention on Human Rights and so address unnecessary censorship and self-censorship.

Censorship of the arts in the UK results from a wide range of competing interests – public safety and public order, religious sensibilities and corporate interests. All too often these constraints are imposed without clear guidance or legal basis.

These law packs are the result of an earlier study by Index: Taking the Offensive, which showed how self-censorship manifests itself in arts organisations and institutions. The causes of self-censorship ranged from the fear of causing offence, losing financial support, hostile public reaction or media storm, police intervention, prejudice, managing diversity and the impact of risk aversion. Many participants in our study said that a lack of knowledge around legal limits contributed to self-censorship.

These packs are intended to tackle that lack of knowledge. We intend them as “living” documents, to be enhanced and developed in partnership with arts groups so that artistic freedom is nurtured and nourished.

Jodie Ginsberg, chief executive, Index on Censorship

Foreword by Topher Campbell

My mission as an artist is to represent and explore work that is inspired by difference, identity and sexuality. As a black gay man this means that I make work that intersects between different points of cultural interest that are often marginalised by mainstream institutions. In the UK, where white people lead the overwhelming majority of arts-producing companies and institutions, there are huge barriers delineating what kind of art, performance or writing people of colour produce. This means there becomes work that is considered acceptable and work considered either offensive or irrelevant. We only need to look at who is in “The House” and who is in “The Field” to see how little has changed.

In creating work for the stage, film and exhibition I am struck by the language used to censor work or deny even that the work has any value in a cultural context. Often stated is the idea that there are no black or/and gay people “in our audience”, “on our data base”, “in our readership” who would be interested in “your work”.

Other excuses are that institutions and commissioners have no knowledge of the historical or cultural context of the work and therefore do not see its value. Then there is funding censorship, which works like a two-edged knife. Where a lack of work from BME (Black and Minority Ethnic) or LGBTQ (Lesbian, Gay, Bisexual, Transgendered, Queer) people is considered, funding is easier.

However, often this is policed in terms of what is socially acceptable, rejecting complex explorations of sexual content or content that critiques the white or black hegemony of victimhood and the outsider. Basically what white and black straight funders and programmers can’t connect with, they ignore.

Being shut out of performance or exhibition space or repeatedly turned down for funding (something that disproportionately affects people of colour) means no chance to exhibit work or share perspective. It means my work struggles for credibility in the UK when looking for a home. It remains marginal and therefore invisible. The reality of how this works is subtle. Different institutions and personalities nuance it. But the effect is blunt.

Increasingly BME and LGBTQ artists and those who seek to challenge the status quo either give up or decide to leave the UK. Many head for the US where a more open conversation about race and sexuality is possible. This means that for all our boasting about the rich diversity of the UK, we are actually making our culture poorer, smaller.

Topher Campbell is a director of film, television and theatre. He is currently the artistic director of The Red Room Theatre Company and chair of the Independent Theatre Council UK.

Freedom of expression

Freedom of expression is a UK common law right, and a right enshrined and protected in UK law by the Human Rights Act(1) , which incorporates the European Convention on Human Rights into UK law. The most important of the Convention’s protections in this context is Article 10.

It is worth noting that freedom of expression, as outlined in Article 10, is a qualified right, meaning it must be balanced against other rights.

Where an artistic work presents ideas that are controversial or shocking, the courts have made it clear that freedom of expression protections still apply.

As Sir Stephen Sedley, a former Court of Appeal judge, explained: “Free 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 Director of Public Prosecutions, 1999).

Thus to a certain extent, artists and galleries can rely on their right to freedom of expression under Article 10 of the European Convention on Human Rights: the right to receive and impart opinions, information and ideas, including those which shock, disturb and offend.

As is seen above, freedom of expression is not an absolute right and can be limited by other rights and considerations. While the Crown Prosecution Service (CPS) and police have a positive obligation to promote the right to freedom of expression, they also have a duty to protect other rights: to private and family life, the right to protection of health and morals and the protection of reputation.

The following sections of the pack look at elements of the law that may curtail free expression: race hatred and hatred on grounds of religion or sexual orientation.

Race and protected characteristics offences explained

UK law criminalises conduct that has the intent of stirring up racial hatred or hatred on grounds of religion or sexual orientation. “Conduct” includes the use of hateful words, but also a broad range of expression, such as displays of text, books, banners, photos and visual art, the public performance of plays and the distribution or presentation of pre-recorded material. In all three cases a magistrate can grant the police a warrant to seize any material that is hatefully inflammatory.

On summary conviction, offenders may face up to six months’ imprisonment, a fine or both. The more serious indictable offences may be tried by jury, but on conviction the offenders face up to seven years’ imprisonment, a fine or both. All prosecutions must be approved by the Attorney General (the government’s chief law officer).

The various offences were established in the wake of decades of efforts to challenge discrimination in the UK. The Race Relations Acts of 1965, 1968 and 1976 applied increasingly stronger measures to prevent discrimination on the grounds of race, colour, nationality, ethnic and national origin in employment, provision of goods and services, education and public services.

The Race Relations (Amendment) Act 2000 further included a statutory duty on public bodies to promote race equality, and to prove that action to prevent race discrimination was effective. The act was repealed by the Equality Act 2010, which consolidated existing anti-discrimination law in the UK to bring it in line with European Commission directives on equal pay, sex and disability discrimination and the Race Relations Act.

The introduction of new legislation to criminalise religious hatred caused concern among the creative community, specifically prohibitions under Sections 18-29AB of the Public Order Act 1986, as amended by Schedule 1, Racial and Religious Hatred Act 2006 and section 74 of the Criminal Justice and Immigration Act 2008. English PEN and a number of free expression groups lobbied for further amendments to protect free speech from inappropriate use of the act.

Racial hatred

Racial hatred is defined in Section 17 of the Public Order Act 1986 as “hatred against a group of persons … defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins”.

Artists, producers or presenters of public performances or exhibitions may commit an offence under Section 18 of the act if their artistic expression involves the use of threatening, abusive or insulting words, images or actions that are intended to – or, having regard to all the circumstances, are likely to – stir up racial hatred.

However, the alleged offender has a defence if: „

• It cannot be proven that the work was intentionally threatening, abusive or insulting and/or the artist or presenter was not aware that the content might be so received; „
• It can be proven that the work was presented inside a private dwelling and that the artist had no reason to believe that the work would be heard or seen by persons outside it.

Religious hatred and hatred on grounds of sexual orientation

Religious hatred is defined in section 29A of the Public Order Act 1986 as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”.

Hatred on the grounds of sexual orientation is defined in section 29AB as “hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, opposite sex or both)”.

It may be an offence under Section 29B of the Public Order Act 1986 if artworks involve the use of threatening, insulting or abusive words, images or actions, that are intended to – or are likely to – stir up hatred on the grounds of religion or sexual orientation. It is an offence to intentionally stir up religious hatred by using threatening words or behaviour, including in an artistic context.

It is important to note that the offences related to hatred of religious groups or sexual orientation are more narrowly defined than racial hatred offences in two specific ways.

First, unlike racial hatred offences, offences related to hatred of religious groups or sexual orientation apply only where the words, images or conduct are threatening. No offence is committed by using words, images or behaviours that are merely insulting or abusive. An act is likely to be considered “threatening” if it is clearly intended to place people in fear for their safety or wellbeing.

Words or actions that are merely intended or likely to upset, shock or offend are unlikely to count as “threatening”. The distinction was made to single out racially charged conduct as requiring greater censure(2) .

Secondly, actual intention must be proven in cases of hatred of religious groups or sexual orientation. The mere likelihood that it might stir up hatred, or even the fact that it did, is not sufficient for a conviction in respect of religion and sexual orientation. The intention here is to differentiate between this kind of hatred and racial hatred. In the latter case, the prosecution is not required to prove the state of mind or actual intent of the offender. This means that the racial hatred offences prohibit a much broader range of conduct.

Hatred offences will also be committed in respect of race, religion or sexual orientation for:

• Publishing or distributing written material stirring up racial or religious hatred or hatred on grounds of sexual orientation. „
• Public performance of a play stirring up racial or religious hatred or hatred on grounds of sexual orientation. „
• Distributing, showing or playing a recording stirring up racial or religious hatred or hatred on grounds of sexual orientation. „
• Broadcasting a programme stirring up racial or religious hatred or hatred on grounds of sexual orientation. „
• Possession of written material or recording stirring up racial or religious hatred or hatred on grounds of sexual orientation.

The term “written material” refers to “any sign or visible representation” and therefore includes imagery, paintings or other forms of physical artistic expression.

Religious and racially aggravated public order offences

There are also further offences under the Public Order Act 1986 that are described as “racially or religiously aggravated”. Section 28 of the Crime and Disorder Act 1998 sets out what it means for an offence to be “racially and religiously aggravated”: there must be a demonstration of hostility on the basis of a membership of a racial or religious group or the particular offence must be motivated by the same hostility.

Offences that may be racially or religiously aggravated are:

The offence of causing fear or provocation of violence contrary to Section 4 of the Public Order Act 1986: When a person uses threatening, insulting or abusive words or behaviour; or distributes or displays threatening, insulting or abusive writing, signs or other visible representation, with the intention to cause belief that immediate unlawful violence is imminent, or to provoke it; or to do so in circumstances where such belief would be likely. The offence can be committed in public or in private but not in a “dwelling” or living accommodation.

The term “writing” covers typing, printing, lithography, photography and other means of reproducing words. “Displays”, read in the context of the Section 4 of the Public Order Act 1986, would require it to be publicly visible, that is, not in a home.

Causing harassment, alarm or distress contrary to Section 5 of the Public Order Act 1986: Where a person uses threatening or abusive words or behaviour; or distributes or displays threatening or abusive writing, signs or similar, within the hearing or sight of a person who is likely to be caused harassment, alarm or distress as a result.

It is a defence to prove that the accused had no reason to believe that there were people within hearing or sight likely to be affected, or that he was inside a home and was similarly out of sight and earshot. It is also a defence to argue that the conduct was “reasonable” in the circumstances. No proof of the conduct being actually heard or seen is required. But the prosecution must prove that the defendant intended to be threatening, insulting, abusive or disorderly, or was subjectively aware that his or her conduct could be characterised that way.

Intentionally causing harassment, alarm or distress contrary to Section 4A of the Public Order Act 1986: This offence is in fact a more serious alternative to Section 5. It involves conduct similar to that outlawed by Section 5 but in addition requires proof of intention to cause harassment, alarm or distress and proof that harassment, alarm or distress was actually caused. The defendant can claim in defence that the act was carried out in a home in the belief that it was out of sight or earshot, or that the conduct was reasonable.

For example: A satirical animation depicting an identifiable person desecrating a religious symbol may involve the use of insulting words that cause distress to that person. If the use of the insulting words are considered unreasonable then this may constitute an offence under the Public Order Act 1986 if it was conducted outside a home. Further, if the artist demonstrates hostility towards the subject on the basis of their membership of a particular religious group then this may amount to a religiously aggravated public order offence. The courts have said that distress requires “real emotional disturbance or upset,” while harassment must be “real” as opposed to “trivial”.

Whether particular words or actions are reasonable will depend on all the circumstances of the case, the context in which they take place, the artist’s reasoning and any existing relationship between the artist and the subject. A gratuitous insult is more likely to fall foul of the criminal law than a genuine attempt to express an opinion on a matter of public interest.

The Equality Act 2010

The Equality Act 2010 prohibits discrimination, both by public bodies or private individuals, against certain classes of persons. The conduct outlawed by and defined in the Equality Act 2010 includes discrimination, harassment and victimisation. The Equality Act 2010 does not create criminal offences. Breaches of the relevant provisions can only result in declarations or mandatory orders and the award of damages. Many arts organisations may in fact be “public authorities” within the meaning of the act and should consult the Equality and Human Rights Commission to see if the act applies to their organisation(3). Further information can be found at the Equality and Human Rights Commission website: http://j.mp/sectorguidance.

The Equality Act 2010 has been described as harmonising or consolidating legislation by bringing together statutory protections against discrimination of different kinds under multiple acts and statutory instruments. It prohibits discrimination on the grounds of one or more “protected characteristics”. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The powers of the police and prosecuting authorities

The police have statutory and common law powers to deal with racial and religious hatred offences and threats to public order. They can do so by making arrests for various offences, and by making arrests or giving directions to persons to prevent an offence from being committed, including a breach of the peace (for more information about breach of peace see the Public Order pack). In certain cases, they may also take a view whether or not public order offences were further aggravated by hostility on grounds of race, religion or sexual orientation.

In exercising these powers, the police also have duties to protect the free speech rights of all groups and individuals, and any other relevant freedoms, including the right to protest and to manifest a religion.

The role of the police naturally shifts with changes in culture and the law. The current position is that the police, as a public authority, have an obligation to ensure law and order and an additional obligation to preserve, and in some cases to promote, fundamental rights such as the right to protest and the right to freedom of expression protected by Articles 10 and 11 of the European Convention on Human Rights, currently incorporated into the UK’s domestic law.

The result is that the police conduct a pragmatic balancing act between the different parties and public interests. However, where public order issues arise, the policing of artistic expression is very much part of the police’s core duties and, as a public body, the police must discharge their duties. If arrests have been made, the CPS will consider whether, based on the evidence supplied by the police, there is a realistic prospect of conviction. If so, the CPS will consider whether it is in the public interest to prosecute, taking into consideration the competing rights of the artist, museum, theatre or gallery and others.

Because of their sensitive nature, prosecutions for stirring up racial and religious hatred can only be brought with the consent of the Attorney General even if the CPS considers there is enough evidence and it is in the public interest to prosecute. However, to date, no works of art have been tested in UK courts under laws proscribing hatred of race, religion or sexual orientation, so it is difficult to assess how this legislation would be applied in practice.

Under the law as it stands, offences under Sections 5, 4 and 4A of the Public Order Act 1986 (see previous section) can only be tried in the magistrates court. They are punishable by a fine and a maximum term of six months jail.

Section 4 and 4A Public Order Act offences that are “racially or religiously aggravated” are considered more serious offences and can be tried on indictment in the Crown Court. They are punishable by a maximum term of imprisonment of two years. A racially or religiously aggravated Section 5 offence is only triable in the magistrates court and is punishable by a fine only.

Higher maximum penalties of seven years apply to specific acts of hatred of race, religion or sexual orientation on conviction, compared with two years for public order offences merely aggravated by such hatred. These specific hatred offences require proof of intention to stir up racial hatred, unlike the lesser cases of aggravated offences, where simple proof of hostility is sufficient.

Additional Notes

To ensure that the expression of a view about the marriage of same-sex couples does not become an offence, there is a specific provision in the Public Order Act as it applies to England and Wales, that “discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred”. In Scotland, the Lord Advocate has published “Prosecution Guidance in Relation to Same Sex Marriage” with the same effect.

In Scotland, only the parts of the Public Order Act prohibiting racial hatred are in force. Scotland has its own legislation for racial harassment and other forms of hate crime in respect of religion, sexual orientation, transgender and disability(4). Separate amendments apply to Northern Ireland; please refer to the Equality Commission Northern Ireland website(5).

Practical guidance for artists and arts organisations

This guidance may apply if you are considering the creation or presentation of works that address sensitive topics connected to race, religion or sexual orientation. The aim of this process is to build the capacity of all involved to respond to criticism of controversial content, defend the right to freedom of expression and promote the right of audiences to share in a diversity of work and perspectives.

It should be noted the penalties for incitement to racial hatred are greater than those involving incitement to hatred of religious or sexual orientation. Note in particular the special protection afforded to expression to criticise, ridicule, insult, abuse and express dislike of particular religions, religious practices and believers contained in sections 29J and 29JA of the Public Order Act 1986 respectively (See the PEN amendment).

Presenting work that takes on sensitive issues around race, religion and sexuality has been at the heart of the majority of controversies in recent times in the UK. There are case studies of relevant works at indexoncensorship.org/artandoffence, some of which have been successfully presented and others which have been cancelled as a result of protest.

None of the works were removed on grounds of the content being illegal. However, if the work does contain words or images that may be threatening, insulting or abusive consider if it is likely (as opposed to merely possible) that they will stir up racial or religious hatred. If you have concerns that the work, or aspects of the work, may be in breach of race or religious hatred legislation then you should consult a lawyer.

In the main, as we see from recent cases, the arts organisation’s concern will likely be the reaction of third parties to the work, which may result in protest. In order to give the work the best chance of being successfully presented, it is important to think carefully about how the work could be received by different groups.

If you are considering engaging with local groups at an early stage, it is important that you are clear whether you are able or willing to adapt the artwork in the light of external comment, or if you are standing by the original work and simply wish to communicate its context. Consider providing people with critical perspectives a platform for balanced counter-speech, such as a post-event debate.

In the most contentious cases efforts to reach accommodation may simply be thwarted or continue to face significant opposition. Consideration must be given to how representative of sections of the community or the wider community those who object are. Some sub-groups may often claim – or assert the right to – speak on behalf of minority groups without clear authority. The concerns of the various constituencies within minority groups thus may be obscured. This will make attempts to engage with a wider and more representative crosssection of the relevant community more effective and valuable.

Consider the following preparatory steps:

• Make your motivation and reasons for making or displaying the work clear and why you consider the work to have artistic merit. „
• Provide the context for the work, what the artist is seeking to achieve, their previous work and the role of controversy in their work. „
• Consider the public interest in this work and how it contributes to a wider debate in society. Remember that the right to freedom of expression includes the right to express ideas and opinions that shock, offend and disturb. „
• Consider advising audiences that the work features challenging material relating to race, religion or sexual orientation. „
• Take account of the physical surroundings of the event, in particular the venue itself. A risk assessment should consider the potential dangers to the public in the case of protest, such as narrow accesses, structural instability or plate glass, for example. „
• Take account of the impact on staff, the need for special training and the possible costs of additional security. See the Behud case study at indexoncensorship.org/artandoffence. „
• Establish relations with the appropriate police officer responsible for race relations or hate crime in your area. A good relationship could be invaluable at a later stage.

The promotion and use of good practice in this area will be beneficial to all involved and help create communities of support among other artists and venues if controversy or prosecutions emerge. As a matter of good practice you might want to prepare a commitment to artistic and intellectual freedom of expression – before any controversy arises. (See box for a model draft based on a template by the National Coalition Against Censorship / www.ncac. org.)

This could be accompanied by a policy that sets out the way you will handle controversial exhibitions or performances. The policy should include clear creative and managerial curatorial procedures, arrangements to deal with individual complaints and how to handle press queries. Such a policy can be drafted with the help of a lawyer or other arts organisations with experience of exhibiting controversial works.

Reinforce relations with local authorities and local community groups and routinely discuss the themes of your work with them, why it is important and the kind of education, outreach or debate programmes that will accompany it. Advance preparation should bear in mind the principal legal standard of “reasonableness”. The factors relevant to meeting that standard may include:

• The artistic purposes of an organisation.
• Engagement with the authorities; making early contact will make it easier for them to protect your right to freedom of expression.
• Engagement with the press and individual complaints.
• A willingness to make contingency preparations to manage the risk of any disorder, and subject to the imperative of ensuring that the artistic work is not unduly constrained.

We recommend that you document the decision-making process carefully (see Appendix I). Such a record will be helpful in preparing a response to any police enquiries, and will be useful in responding to protestors and critics, even if no legal action is proposed.

In the case of doubt consider contacting a lawyer with relevant expertise. If you are contacted by the police with regard to a particular work, project or programme, contact a lawyer.

Questions and answers

Q. What is the difference between Article 10 of the European Convention on Human Rights and Article 19 of the UN Declaration on Human Rights?

A. Freedom of expression, as outlined in Article 10, is a qualified right, meaning considerations regarding its protection must be balanced against other rights and interests. Article 19 of the UN Declaration on Human Rights, which also addresses freedom of expression, is less qualified: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Nevertheless, even within the UN Declaration there are provisions that contemplate some qualification of the freedom expressed in Article 19. It is the European Convention on Human Rights that is currently relevant to UK law.

Q. Can I challenge a decision by a local authority or police body?

A. Yes. The usual way of doing so would be via judicial review. You should seek specialist legal advice before bringing your claim. Be aware that you must bring your claim as soon as possible and in any event no later than three months after the decision you are challenging. Judicial review is not ordinarily an effective means of quickly overturning decisions. Claims may take many months to be heard. However, it is possible to apply for a claim to be heard quickly if there are good grounds to do so. Even if you succeed you will not usually recover damages: they are awarded at the court’s discretion. The court might quash the decision under challenge, and/or require the public authority to adopt a different procedure in its decision-making.

Q. What is meant by “threatening, insulting or abusive”?

A. The expression “threatening, insulting or abusive” is not defined by the legislation. The courts say instead that the words must be given their “ordinary natural meaning”. Recent amendments to the law have removed the word “insulting” from the definition of the offence under Section 5 of the Public Order Act 1986 to enhance the protection of Article 10 rights. Words or behaviour, signs or messages that are merely “insulting”, within hearing range of someone likely to be caused “harassment, alarm or distress”, no longer constitute a criminal offence under Sections 5(1) or 6(4) of the Public Order Act 1986. But more serious, planned and malicious insulting behaviour could still constitute an offence under section 4A. The use of “insulting” words or behaviour still amounts to an offence under section 4 of the Act (fear or provocation of violence). The CPS further notes that in the majority of cases, prosecutors are likely to find that behaviour that can be described as “insulting” can also be described as “abusive”.

Q. What are the legal definitions of racial hatred and racial group?

A. “Racial hatred” is defined in Section 17 of the Public Order Act 1986 as “hatred against a group of people defined by reference to skin colour, race, nationality (including citizenship) or ethnic or national origins”. The definition of “racial group” for the purposes of “racially aggravated” public order offences (Section 28 Crime and Disorder Act 1998) mirrors the description of the group of people against whom hatred must be directed for it to amount to “racial hatred” under Section 17 of the Public Order Act 1986. It covers hatred against people of a particular skin colour (e.g. Asian, black, white) a particular nationality or national origin (e.g. French, Israeli, Chinese) or a particular ethnic origin (e.g. Romani, Jews, Sikhs). In the case of racially aggravated public order offences, the courts have stated that a non-technical approach should be taken to the scope of the term “racial group”. Hostility towards persons because of their nationality or what they are (e.g. “bloody Spaniards”) is covered but so is hostility based upon nationality, national origin or citizenship to which a group of persons does not belong (e.g. “bloody foreigners”) (See R v Rogers [2007]). In this sense word “immigrant” is capable of falling within the definition of racial group. Stirring up hatred against refugees, immigrants and asylum seekers will fall foul of the racial hatred provisions. Similarly, demonstrating or being motivated by hostility to members of these groups around the time of committing certain offences will make them racially aggravated offences. The expression “racial group” has over the years been ascribed a particular legal meaning in legislation designed to prohibit race discrimination. To determine where the term falls in relation to criminal or other courts, it is suggested that regard must now be made to Section 9(1) of the Equality Act 2010, which states that “race” includes:

• Colour
• Nationality
• Ethnic or national origins

In relation to the protected characteristic of race:

• A reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group.
• A reference to persons who share a protected characteristic is a reference to persons of the same racial group.
• A racial group is a group of persons defined by reference to race; and a reference to a person’s racial group is a reference to a racial group into which the person falls.

The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group.

Q. Does “artistic merit” impact the extent to which an artist’s freedom of expression will be protected?

A. It is more likely that a gallery, artist or theatre will be permitted to present controversial works if they are well known and if it is generally considered to have artistic merit. Most police officers are not readily able to assess or appreciate artistic merit or nuance in the context of potential hate crimes. It would therefore be helpful to contact officers with the relevant expertise such as the Art and Antiques or the Community Safety units of the London Metropolitan Police Service. A gratuitous insult is more likely to fall foul of the criminal law than a genuine attempt to express an opinion on a matter of public interest.

Q. Is there a right not to be offended?

A. Under UK law there is no legal right not to be offended. The European Court of Human Rights has repeatedly stated that the right to freedom of expression includes the right to shock, disturb and offend.

Q. Is there a blasphemy law in this country?

A. No. The Criminal Justice and Immigration Act 2008 abolished the common law offences of blasphemy and blasphemous libel in England and Wales. Blasphemy laws continue to exist in Scotland and Northern Ireland.

Q. Is there a difference in law between criticising a belief and criticising a believer?

A. There is no clear distinction in law between criticising a belief and criticising a believer. The intentional use of threatening words to stir up religious hatred is unlawful whether the words are about a general belief system, a particular religious institution, a group of followers or an individual believer. In each case the critical question is whether the words are (a) threatening, and (b) intended to stir up religious hatred. However, it may sometimes be harder to characterise an attack on an abstract religious belief as “threatening” (i.e. menacing or intimidating) than a direct attack on identified individuals.

Q. Do I have to give the script of a play to an authority prior to its opening, if requested?

A. You only have to provide a copy of a script (or any document or property) if the police or local authority have a legal power to view and seize that material. Under Section 10 of the Theatres Act 1968, if a senior police officer has reasonable grounds for suspecting that a performance of a play is likely to involve stirring up racial or religious hatred then he may make an order in relation to that play. An order under that section empowers any police officer to require the person named in the order to produce a script of the play and to allow the officer to make a copy of it.

If a local authority or the police ask to see particular artistic material you should ask them to clarify whether they are demanding that you hand over the material, or whether they are simply asking for your voluntary co-operation. If they are demanding that you provide the material, ask them to identify the legal power that gives them the right to do this and ask to see a copy of any order made under the Theatres Act 1968. You should make a contemporaneous note of their answers. If the police are simply seeking your voluntary co-operation then you do not have to give them anything. If in doubt about the scope of their powers, consult a specialist lawyer.

Q. Does it make any difference if the artist is a member of the same religious or racial group as those who may be offended?

A. The racial or religious identity of the artist is irrelevant to the question of criminal liability. In practice, however, it may be easier for an artist who is a member of the same religious or racial group as the target of their art to persuade a court that their art is not intended to stir up hatred against that group.

Q. Does it make any difference if the perceived attack is directed at an individual?

A. In some cases, the fact that an attack is directed against an identifiable individual may make it more likely that the attack will be construed as abusive or insulting (in the case of racial hatred) or threatening (in the case of racial and religious hatred). On the other hand, the fact it is focused on a particular individual may make it harder to establish it is likely or intended to stir up hatred against a broader racial or religious group. However, each case will turn on its own facts and there is no hard and fast distinction between attacks on individuals and attacks on groups.

Q. Is the right to freedom of artistic expression equal to the right to protest if both are carried out legally?

A. The right to freedom of expression is protected in the European Convention on Human Rights and by UK case law. The right to free assembly is protected as an aspect of this right. Both rights carry great weight, neither automatically outweighs the other and are both qualified rights. This means they may be subject to restrictions where necessary to protect other important interests – for example, protecting national security or the rights of others or preventing crime.

Since protest usually involves the occupation of public space (for example, marches or sit-ins) there are often more countervailing interests (for example, the greater potential for outbursts of violence, the need to protect the safety of passers-by or to keep roads clear for traffic) than with artistic expression.

Q. What potential measures can gallery directors take if the police try to seize artworks?

A. Gallery directors could argue that they have a legitimate reason for distributing, showing or possessing the artistic work, although, as stated above, you should take specialist advice. If you have documented the reasons for exhibiting the work and liaised with the police in advance you will be in a stronger position to ensure that the exhibition or performance can go ahead. If the police insist on seizing artwork, ask them for time to consult a lawyer. Be careful about resisting physically or engaging in a heated debate with police. They could arrest you for obstruction.

Q. What bearing does the Equality Act 2010 have on the arts?

A. The Equality Act 2010 prohibits discrimination because of one or more “protected characteristics”. These are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

The conduct prohibited by the Equality Act 2010 is:

• Direct discrimination
• Combined discrimination
• Discrimination arising from disability
• Gender reassignment discrimination: cases of absence from work
• Pregnancy and maternity discrimination
• Indirect discrimination
• Failure to comply with a duty to make reasonable adjustments
• Harassment
• Victimisation

The Equality Act 2010 does not, however, create criminal offences. Breaches of the relevant provisions can only result in declarations or mandatory orders and the award of damages. In certain circumstances, in particular where the respondent is a public authority, public law proceedings may be brought to challenge a discriminatory decision, policy or practice, including in reference to the public sector’s duty to equality.

Artists, theatres, museums and other arts organisations should comply with the Equality Act 2010 to avoid civil suits(6). Further information can be found at the Equality and Human Rights Commission website: http://www. equalityhumanrights.com/private-and-publicsector-guidance

Q. What kind of test would be applied to expression to determine whether or not an artist “intends” to cause an effect proscribed by the criminal law?

A. Intention can be inferred from the conduct or record of the artist under scrutiny and the context in which the work is created. This could cover, among other things, the artist’s previous statements, works, biographical detail, political affiliations, or associations with works or individuals that did not appear to seek to expose or explain racial discrimination but sought instead to promote it.

Appendix 1: Documenting and explaining a decision

Please note: This appendix is for example only and is not a substitute for specialist legal advice tailored to your particular circumstances.

Example: A theatre seeks to show a play that will include satirical images of religious practices, teachings and iconography. The arts organisation decides the work has value but considers that there is a risk that the work could be characterised as threatening and intended to stir up racial or religious hatred. The decision to proceed could be documented as follows:

1. The artist’s motivation is to explore the influence of religion on politics and international affairs (for example).
2. It responds to a debate of public interest, the role of religion in shaping society’s attitudes towards relationships/sexuality/family/gender or the concept of national identity in a multicultural and increasingly diverse community (for example).
3. We have acknowledged the importance of conducting a critical argument about all belief systems and using the arts to stimulate legitimate debate in this case.
4. There is public interest in exposing corruption, injustice or malpractice no matter what race or religion the perpetrator.
5. There is a public interest in freedom of artistic expression itself and we consider that this is work of value which should be seen in the context of this important public debate.
6. The work has artistic merit and the artist has exhibited/sold numerous copies of previous works that have been positively reviewed (provide examples).
7. We have considered the context of previous work by the same artist, the role of controversy in the work and provided examples.
8. The work forms part of a broader project/ exhibition designed to educate or stimulate discussion on an important issue.
9. We recognise that the content is challenging and provocative. In order to prepare the audience we have taken the following steps:
   1. All audience members are advised, when buying tickets, that the work contains images and plotlines that may offend those of certain religious faiths.
   2. Similar advice is provided on all promotional material and on the entrance to the building.
10. We have carefully considered our own guidance policy with regard to equal rights and representation of racial and religious issues (and/ or the relevant local or other authority).

Footnotes

1. At the time of writing (August 2015), the government is considering abolishing the Human Rights Act and introducing a British Bill of Rights. Free expression rights remain protected by UK common law, but it is unclear to what extent more recent developments in the law based on Article 10 would still apply
2. See in particular Hare, I, Legislating Against Hate – The Legal Response to Bias Crimes; (1997) 17 OJLS 415
3. See also for further reference, Monaghan on Equality Law, 2nd Edition, OUP, 2013
4. See http://www.scotland.gov.uk/Topics/archive/law-order/8978
5. http://www.equalityni.org/Footer-Links/Legislation
6. See also for further reference, Monaghan on Equality Law, 2nd Edition, OUP, 2013

Charging for police protection of the arts

16 Feb 16

	Child Protection: PDF | web Counter Terrorism: PDF | web Obscene Publications: PDF | web Public Order: PDF | web Race and Religion: PDF | web Art and the Law home page
	Case studies • Behud – Beyond Belief • Can We Talk About This? • Exhibit B • “The law is no less conceptual than fine art” • The Siege • Spiritual America 2014 Commentary • Julia Farrington: Pre-emptive censorship by the police is a clear infringement of civil liberties • Julia Farrington: The arts, the law and freedom of speech • Ceciel Brouwer: Between art and exploitation • Tamsin Allen: Charging for police protection of the arts • Gurpreet Kaur Bhatti: On Behzti • Daniel McClean: Testing artistic freedom of expression in UK courts
	Reports and related information What Next? Meeting Ethical and Reputational Challenges Taking the offensive: Defending artistic freedom of expression in the UK (Also available as PDF) Beyond belief: theatre, freedom of expression and public order – a case study • UN report on the right to artistic expression and creation • Behzti case study by Ben Payne • freeDimensional Resources for artists • Artlaw Legal resource for visual artists • NCAC Best practices for managing controversy • artsfreedom News and information about artistic freedom of expression
	These information packs have been produced by Vivarta in partnership with Index on Censorship and Bindmans LLP. The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street Chambers, Matrix Chambers and Brick Court. Supported using public funding by Arts Council England

By Tamsin Allen, 16 February 2016
Tamsin Allen is head of Media and Information law at Bindmans LLP

Policing is a core function of the state, and it has long been accepted that our taxes pay for police services. The role of the police naturally shifts with changes in culture and the law, but the current position is that the police, as a public authority, have an obligation to ensure law and order and to preserve, and in some cases to promote, fundamental rights such as the right to protest and the right to freedom of expression, protected by Articles 10 and 11 of the European Convention on Human Rights, now incorporated into the UK’s domestic law as the Human Rights Act 1998.

There are some instances where the police are entitled to levy an additional charge for their services, but those must be services which are outside the core responsibilities of the police.

Section 25 of the Police Act 1996 deals with the “provision of special services” and states that:

The chief officer of police of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the police authority of charges on such scales as may be determined by that authority.

The phrase special police services is not defined by the act. Association of Chief Police Officers (ACPO) guidance to senior police officers states:

“an event is an occurrence, out of the normal activity that takes place to provide an experience or defined activity to commercial or non-commercial reasons. Special police services are police services provided over and above core policing at the request of a person or organisation.”

Case law indicates that special police services include policing football matches (Chief Constable of Greater Manchester v Wigan Athletic AFC Ltd [2008] EWCA Civ 1449) and music festivals (Reading Festival Ltd v West Yorkshire Police Authority [2006] EWCA Civ 524).

The reason why football matches and music festivals might need additional policing is because of the risk of public order offences being committed and because the organisers themselves require additional police to ensure that they can discharge their own duties to keep the attendees safe. Where the police have provided services over and above those that have been specifically requested, organisers have not been required to pay.

ACPO guidance draws a clear distinction between different categories of event:

• Commercial events intended to generate private profit;
• Non-commercial events i.e. charitable or community events; and
• Statutory events reflecting constitutional rights or processes.

It provides that: “Policing of statutory events is part of a core activity and no charges should be made” and defines statutory events as “events where there is no financial gain to the organiser and which reflect constitutional rights, or a cause of royal, national or defined public interest”.

As a public body, the police must act within their powers and discharge duties to which they are subject. They must take decisions rationally, fairly and in a way which takes account of relevant – but not irrelevant – considerations. Cultural organisations have a legitimate expectation that the police will follow published guidance unless there is a good reason to depart from it. However, this guidance should be clear, especially where it potentially interferes with fundamental rights. At present, this guidance lacks clarity and therefore policy practice in this area may lack consistency. This is an area which could potentially be subject to challenge by way of judicial review.

As it is presently constituted, the guidance suggests that the real dividing line is between commercial and non-commercial events. In situations where fundamental rights are engaged, such as the staging of a highly controversial art exhibition where protests are expected, it is certainly arguable that policing is a core function notwithstanding that it is a commercial event.

The police may have felt they could waive the fee they originally requested in relation to the 2004 production of Behud because the theatre was a not-for-profit organisation. However, there may be situations where a theatre or exhibition space is a commercial organisation, but the work of art in question raises issues of artistic and political freedom of expression. For instance, under the guidance, the police could have charged the Birmingham Repertory Theatre at what appears to be the going rate of £10,000 per day for policing Behtzi had it not been cancelled.

Using the distinction between commercial and non-commercial events as a lodestone for determining whether or not the police can charge for special services is thus not necessarily appropriate. Attendance at football matches or music festivals does not, on the face of it, involve the exercise of fundamental rights. The situation in respect of all theatre, art exhibitions or other forms of artistic expression, even where a profit is made, is quite different. The police have an obligation to fulfil their core duties – those are now enhanced by their duties under the Human Rights Act not to act incompatibly with the Convention. The Convention imposes a qualified obligation not to interfere with the exercise of the right to freedom of expression and protest and a positive obligation to take appropriate steps to protect those rights. The policing of artistic expression, where political sensitivity leads to the risk of public order issues, is part of the police’s core function and duties and should not be a matter of commercial negotiation. Protection for these rights should under no circumstances depend on whether or not an organisation can afford to pay for it.