Some thoughts about the wearing of an ISIS flag on a London street

A man walks near Parliament wearing the flag used by "Islamic State" and carrying a young child on his shoulders. The child is carrying a small ISIS flag.  The Police, so it seems, did not think that the law had been broken - The Guardian 5th July 2015.   The Guardian (quoting a Metropolitan Police statement) commented:

"The man was spoken to by officers, with consideration given to relevant legislation, particularly the Public Order Act. The decision was taken by officers at the time that the man was acting within the law. He was not arrested.  Wearing, carrying or displaying of an emblem or flag, by itself, is not an offence unless the way in which, or the circumstance in which, the emblem is worn, carried or displayed is such as to cause reasonable suspicion that the person is a supporter or member of a proscribed organisation. While support of and membership of ISIS is unlawful it is not a criminal offence to advocate the creation of an independent state."

So, was any offence potentially committed?  Here are some observations:



Advocating Independent State:

It is certainly not an offence in England to peacefully advocate the creation of an independent State.  If it were, where would that leave Scottish Nationalists?  This view would appear to be supported by the decision of the House of Lords in R v Attorney-General ex parte Rusbridger [2003] UKHL 58 where their Lordships were of the view that, in the light of the Human Rights Act 1998, the old Treason Felony Act 1848 section 3 could not be used to prosecute journalists who published articles advocating that the UK should abolish the Monarchy and become a Republic. 

Proscription of Organisations:

The Terrorism Act 2000 Part II provides that certain organisations may be proscribed. There is also a process for deproscription and the Proscribed Organisations Appeal Commission has jurisdiction in this area.  An example of a body becoming deproscribed is the Peoples Mujahiddin of Iran (PMOI) - see this House of Commons Library - Standard Note 23rd March 2009.

ISIS is a proscribed organisation and here is the latest list of such organisations. though it should be noted that the list is liable to alteration from time-to-time.  The UK government does not recognise claims of a restored "Caliphate" or a new Islamic State.

Offences relating to Proscribed Organisations:

The Terrorism Act 2000 section 11 to 13 create certain offences in relation to proscribed organisations.  As always, the precise wording of the legislation is important.  Section 13 is the most likely section that could be applied to the adult wrapped in the flag.  It states:

A person in a public place commits an offence if he—

(a) wears an item of clothing, or

(b) wears, carries or displays an article,

in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.

This is a summary offence punishable in the Magistrates' Court by up to 6 months imprisonment or a Level 5 fine or both.

Public Order Offences:

The Public Order Act 1984 has a number of offences that might be considered in this context - see, in particular, section 4A and section 5.  The precise wording of these offences must be considered as well as case law on the Act. 

Section 4A(1) states:  A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

Section 5(1) states:  A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

The section 4A is triable summarily by the Magistrates and punishable by up to 6 months imprisonment or a Level 5 fine or both.  The section 5 offence is triable summarily and punishable by a fine (Level 3).

Given the daily horror of the barbaric and intensely cruel actions of ISIS (constantly fed to us by the media) there could well be good reason to believe that individuals might find the display of the ISIS flag threatening, abusive or insulting.

The section 4A offence has the difficulty of proving an intent to cause a person harassment, alarm or distress and that person (or another) must be caused such harassment, alarm or distress.  The section 5 offence is the less serious. 

Counter-Terrorism and Security Act 2015 Part 5:

This recent legislation would seem to have relevance in relation to the small child on the man's shoulders.  Here is Part 5 of the Act which is aimed at preventing people being drawn into terrorism.  Could there be a clearer example on an English street of a child at risk of being drawn into terrorism?

Display of flags:

Legislation within the UK to deal with displaying flags is not unknown.  An example is the Flags and Emblems (Display) Act (Northern Ireland) 1954 - though it is now repealed.

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BBC News 6th July - Who, What, Why: Is it illegal to display an IS flag?