Is ‘Fat Shaming’ a criminal offence?

    Is ‘Fat Shaming’ a criminal offence?

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    Photo from the BBC

    Introduction

    On 1st December 2015 the media reported on an incident of ‘fat shaming’ on the tube at the weekend.

    The story had been picked up from twitter ::

    It seems that this was not a one off – other people received some. Looking at the responses to the tweet, and the BBC report, it seems that several people suggested that the leaflet be reported to the police, which was duly done.

    But is handing this out a criminal offence?

    We’ll have a look at some of the possibilities suggested –

     

    Hate Crime

    Is this a ‘hate crime’? The problem with this is that there isn’t really such a freestanding thing as a ‘hate crime’. It is an aggravating feature of any crime certainly. Also, there are some specific cases where there are aggravated forms that can be charged (racially aggravated assault for example).

    But, apart from inciting racial or religious hatred perhaps, a hate crime needs to ‘attach’ to another crime.

    That is before you consider whether ‘fat people’, however that would be defined, could constitute a class that could be subject to hatred in the way envisaged.

     

    Harassment

    Although somebody receiving such a leaflet may be feel harassed by it, for the criminal offence of harassment to be committed, there has to be conduct on at least two occasions.

    So giving someone a leaflet would not be covered by this.

     

    Public Order Offences

    If in doubt, look at a public order offence.

    The least serious, s5 Public Order Act 1986, creates an offence for anyone who “uses threatening or abusive words or behaviour …or displays any writing, sign or other visible representation which is threatening or abusive” if this is “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby“.

    This is very wide. Does it cover someone silently handing another a leaflet? It is an interesting question. The case of Chappell v DPP 89 Cr App R 82 would suggest that it is not, but it is not clear cut. It seems to me that handing over written words is not ‘using’ words. Further, this is not ‘displaying’ it (as it cannot be seen by others), but you never know what a Court would say, or exactly how the passing of the leaflet occurred.

    There is a defence if the person had no reason to believe that anyone would be likely to be caused harassment, alarm or distress (given that the stated aim of the group would be to shame people into changing their eating habits, this is unlikely to work).

    There is also a defence if the person’s behaviour was ‘reasonable’. This would make for an interesting Court case certainly, but we doubt a magistrates court would find this ‘reasonable’.

    In any event, it is doubtful that it would be concluded that a prosecution could pass the hurdle of Art 10 ECHR (the prohibition on criminalising speech).

    So, although we wouldn’t encourage people into this behaviour, silently handing over a leaflet probably doesn’t engage the Public Order Act (we stand ready to be corrected however).

     

    By-law offences

    Under s219 Transport Act 2000 there are powers for the Strategic Rail Authority to make by-laws that create criminal offences. This has created the following two offences of relevance :

    Reg 6. Unacceptable behaviour

    (1) No person shall use any threatening, abusive, obscene or offensive language on the railway.

    (2) No person shall behave in a disorderly, indecent or offensive manner on the railway.

     

    (8) No person shall molest or wilfully interfere with the comfort or convenience of any person on the railway.

    Does this help? Reg 6(1) and (2) hit the same problem as found under the Public Order Act.

    Reg 6(8) looks a bit more promising. There was clearly no molestation, but it could be argued that there was a ‘wilful interference’ with Ms Florish’s ‘comfort’ and/or ‘convenience.

    This is not clear cut however, and there is no definition of either of these terms. The behaviour does not readily fall into this.

     

    Reg 7. Music, sound, advertising and carrying on a trade

    Except with written permission from an Operator no person on the railway shall:

    (2) (i) display anything for the purpose of advertising or publicity, or distribute anything; 

    Bingo.

    Under Reg 7(2)(i), there is a prohibition on ‘distributing anything’ without permission (which the gentleman who handed over the leaflet didn’t have).

    I know what you’re saying though – under Reg 25(1) and Sch 2 the London Underground network is excluded from the Railway bylaws?

    That is, of course, true. But the above offences have been re-enacted using the powers under s67 Transport Act 1962 and para 26, Sch 11 Greater London Authority Act 1999.

    So on the face of it, this offence has been committed, and there is no apparent defence.

    The maximum penalty is a Level 3 fine.

     

    Conclusion

    Whether or not you find the leaflet obnoxious is not the point (or the question for us) – being obnoxious (or vile, or unpleasant) is not a criminal offence.

    Is what happened a criminal offence though? We would say yes, but probably not the one that you are thinking …

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    Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

    18 COMMENTS

    1. Could these leaflets be covered by the malicious communications act? Taken from your previous post about Ursula Presgrave who made offensive Facebook comments about people with Down’s Syndrome: “(1) Any person who sends to another person—
      (a) a letter, electronic communication or article of any description which conveys—
      (i) a message which is indecent or grossly offensive;…..”

      “…(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,
      is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.”

      Certainly there is clearer intention in handing someone a leaflet than in making a Facebook post.

        • If the card said “there is a bomb on this train” that would be acceptable and worthy of police action. No-one would be calling the police laughable for intervening then.

          • That would also be a far more serious crime that the one (possibly) committed here.

            I don’t think people are saying the police intervention is laughable. Just that it’s never going to lead to a prosecution.

            • I think the incident is being trivialised because of who was doing it the perp and who the victim(s) seems to be.

    2. What about the spelling error? Can the fine be doubled for not being able to spell “beautiful”?

      More seriously: has anyone – the person to whom the card was handed or an official of LU or a police officer or anybody else – the right to see the offender’s ID – if any?

      I have to say that while this is nasty I don’t think the forces of law and order can involve themselves without looking foolish.

      • However had the recipient of the card decked the rude …. who was handing out these cards. I’m sure the forces of law and order would be involving themselves pdq which proves that this is not innocuous and sticks and stones… is a load of rubbish because words can hurt. And surely provocation would work in mitigation/defence.

        • Not sure that they would have got involved PDQ, but they would have been more likely to as physical violence is definitely a potential crime.

          Words can hurt, but are not as clearly illegal as actions are.

          Provocation is never a defence, but (almost) always mitigation.

    3. I am sure – but I have not had the time to chase it – that it is a criminal offence to pretend to be a limited company if you are not.
      Which reminds me of John Cleese imitating Goddard doing the death sentence:

      “The sentence of this court is that you be taken from here to a lawful prison and be there hanged by the neck until . . .
      Oh. I see that you have been riding a bicycle without lights.
      You are fined five shillings.
      And may the Lord have mercy on your soul.”

      • I was thinking along the same lines myself, but couldn’t dig it out … suspect it is only if you are carrying out a business or trade pretending to be a limited company? Which this man wasn’t.

        • Is there not some form of misrepresentation? When do the Companies (Trading Disclosures) Regulations 2008 apply, although this is not a real company of course.

    4. @LES “I think the incident is being trivialised because of who was doing it the perp and who the victim(s) seems to be.”

      It won’t let me reply for some reason.

      But don’t think that that’s right as we don’t know who he was. Not sure why the victim would make us less sympathetic?

    5. Would it be correct to say that if he did this again, even if he only interacts with other people, then it might fall under section 1(A) of the Protection from Harassment Act (as amended by s125 of Serious Organised Crime and Police Act).

      For that to work, I think you’d have to argue that the thing they are being urged to not do that they are legally entitled to do is eat. Or, at a push, be fat. But that seems a little non-specific compared to why the section was added (in the Explanatory Notes).

      • I think you’d haver to show that he’d singled out the same recipient twice or more.

        This really is not a matter for the criminal law, is it?

        • I meant section 1A, not 1(A), sorry, which doesn’t have that requirement.

          As for the second part, that is certainly a subject for debate but I’m more interested in whether it is, rather than whether it should be.

    6. “We would say yes, but probably not the one that you are thinking …”

      Just what are you saying?

      “Reg 6(8) looks a bit more promising. There was clearly no molestation, but it could be argued that there was a ‘wilful interference’ with Ms Florish’s ‘comfort’ and/or ‘convenience.”
      Is this your point?
      It is very interesting that Stella Creasy’s staff/office were just now alleged to have been surrounded by a mob -that turned out to have been a quiet group, led by a priest.

      Free speech is a big issue. If you have something more to say, can we hear it, please?

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