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 ::
— Kara Florish (@kflorish) November 28, 2015
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 –
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).
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.
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).
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;
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?
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.
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 …