Section - 5

                                                                Carl Court/AFP/Getty Images

The man above, Emdadur Choudhury was fined £50 for burning a poppy.

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But defacing the American flag is deemed acceptable.

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Section five of the Public Order Act in the UK has a corrosive effect on free speech – it's time to roll back the culture of being offended.

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Sometimes you have to feel sorry for the police. 

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Beyond already dealing with a raft of ill-considered laws, politicians also want them to act against "insulting" behaviour. 

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Section five of the Public Order Act is so broad that almost any protester on any subject can be arrested and fined for harassment, causing "alarm or distress".

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It's not merely theoretical; many ludicrous cases have been prosecuted. 

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The police arrested a student who held up a sign stating Scientology was a cult – surely a matter of opinion? 

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Kyle Little, a 16-year-old from Newcastle, was fined £50 with £150 costs for saying "woof" to a labrador dog in front of police officers. 

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Eventually the magistrates' decision was overturned by a crown court. 

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The very arbitrary nature of deciding what is insulting gives the police a power they can misuse. 

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After a night out with friends, Sam Brown asked a police officer: 

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"Excuse me, do you realise your horse is gay?" Police took Brown to court after he refused to pay an £80 fine. 

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The CPS eventually dropped the case.

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Criminalising "insult" has a detrimental effect on freedom of expression. 

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The term is so broad that it creates legal inconsistencies. 

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There is legal authority that defacing the American flag is a non-insulting form of protest but burning a poppy is criminally insulting.

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It makes little sense.

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These powers are widely used during protests. 

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Protest is often directed at an unsympathetic audience and will often directly cause offence. 

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Oil companies may feel insulted by accusations of having blood on their hands, but there is a clear public interest in having opinions on the behaviour of the powerful heard.

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Lord Justice Sedley said in Redmond-Bate v DPP "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. 

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Freedom only to speak inoffensively is not worth having.

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Yet, the inclusion of "insulting" in the Public Order Act means there is no clear jurisprudence between the offensive speech protected by Sedley and insult as criminalised by the act. 

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Unfortunately most of these cases will go nowhere near learned judges, and the majority of these fines won't be challenged by a public that has never been informed of its rights. 

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Very few of these cases get beyond a magistrates court, and divisional courts, where some of these fines have been quashed, are often loth to intervene.

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When asked to determine the meaning of the word insulting under the previous form of the act, the House of Lords held in Brutus v Cozens that "parliament has given no indication that the word is to be given any unusual meaning. 

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Insulting means insulting and nothing else.

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This law, combined with our culture of offence, means there is the expectation that opinions deemed offensive should be criminalised. 

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Our tolerance of the harmless eccentric has waned. 

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The British no longer raise an eyebrow at fringe opinions, but demand the full force of the law. 

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One example is Harry Hammond, a 69-year-old evangelist street preacher. 

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Hammond believed homosexuality was a sin and wanted everyone to know this. 

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So he stood in the streets of Brighton proselytising against homosexuality with a sign proclaiming the catchy slogan: "Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord."

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Instead of ignoring an old bigoted man, a crowd gathered. 

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At one point he fell to the ground in a tussle over his placard, and soil and water were thrown over him. 

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While Hammond was charged under section five, no one in the crowd was charged for assaulting him. 

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He was fined £300 by a magistrate and ordered to pay costs of £395. 

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The court also ordered the forfeiture of his sign.

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He died shortly after his conviction. 

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Gay rights activist Peter Tatchell described Hammond's prosecution as "an outrageous assault on civil liberties".

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While it's easy to see how Hammond's behaviour could rile a crowd, the danger with policing offence is that it's highly subjective. 

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Perhaps only a generation ago, when there was very little tolerance towards homosexuality, a gay pride march could have been prosecuted for insulting Christians like Hammond.

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Luckily, liberty has friends in parliament. 

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Conservative MP Dominic Raab discovered that section five was used 18,249 times in 2009. 

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Less than one in six of these offences had a religious or racial element, the majority were for the non-specified crime of insult. 

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Following pressure from the Liberal Democrats, the Home Office consulted on this issue.

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My organisation, Index on Censorship, has been lobbying hard for ministers to roll back the culture of offence which has a corrosive effect on free speech. 

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Removing insult from section five would be a good start.

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Finding the correct balance between public order and legitimate protest isn't always easy. 

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But asking the police to patrol offence has undermined public trust in them. 

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Rightly so, for it is not the job of local bobbies or magistrates to protect citizens from insult. 

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Christian preachers or mouthy anarchists may irritate, but in an open, free society, robust opinion will insult you: perhaps we all just need to get used to it.

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Mike Harris - Guardian