Orwell’s boot stamping on a human face — forever — might be apt for the later stages of authoritarianism, but it isn’t for the earlier stages, when Elliot’s not with a bang but a whimper fits better. If we put aside revolution and invasion, nations don’t convulse into authoritarianism, the authorities start with baby steps, which then get bolder as time goes by, until in time they become a march. It is Martin Niemöller’s first they came for the communists, then they came for the incurables. Unpopular groups are marginalised and criminalised. Enabling acts, acts which enable other laws to be made without parliamentary scrutiny, are used to ram through decrees even when, as is often the case, the party in government has a working majority. And then, before long, steps are taken to provide the means to silence those who oppose the government.

It is this step, Dr No now believes, which marks the crossing of the invisible Rubicon on the road to authoritarianism. The mainstream media and internet giants are already hard at it, with their shadowy fact checkers, misinformation fiats and blatant censorship. Debate, they have decided, shall not be tolerated. Others want to go further, and have reluctantly (so tragic that it should come to this) concluded that spreading disinformation must be criminalised. And now, their reluctant prayers have been answered. The Police, Crime, Sentencing and Courts Bill, which comfortably gained its crucial second reading in the Commons this week by a majority of almost one hundred, contains ample provision to allow the government to lock up anyone who says anything that it finds not to its liking. The Bill, and the ability to lock up dissenters, certainly arrived without a bang, and hardly even raised a whimper: only a handful of brave souls rose to oppose the Bill as it strolled through the Commons.

And so the invisible Rubicon was crossed. Having gained its second reading, the Bill now faces the committee stage, but given the strong majority in its favour, it is unlikely to suffer any serious tinkering, so the Bill as it now stands is likely to become law. It runs to over 300 pages, but the key bits with the potential to control free speech are in the first two subsections to Clause 59 in the Bill. They read:

59 Intentionally or recklessly causing public nuisance

(1) A person commits an offence if—

            (a) the person—

                        (i) does an act, or

                        (ii) omits to do an act that they are required to do by any enactment

                        or rule of law,

            (b) the person’s act or omission—

                        (i) causes serious harm to the public or a section of the public, or

                        (ii) obstructs the public or a section of the public in the exercise or

                        enjoyment of a right that may be exercised or enjoyed by the

                        public at large, and

            (c) the person intends that their act or omission will have a consequence

            mentioned in paragraph (b) or is reckless as to whether it will have such

            a consequence.

(2) For the purposes of subsection (1) an act or omission causes serious harm to a

person if, as a result, the person—

            (a) suffers death, personal injury or disease,

            (b) suffers loss of, or damage to, property,

            (c) suffers serious distress, serious annoyance, serious inconvenience or

            serious loss of amenity, or

            (d) is put at risk of suffering anything mentioned in paragraphs (a) to (c).

Those who support the Bill say Clause 59 is no more than an inoffensive bit of house-keeping, that merely puts the current woolly common law notions of public nuisance on the statute book in crisp type. It is, they say, no more than a formality, that will make life easier for everyone, by establishing in statute the nature of public nuisance. No more foraging around in dusty case law, trying to find out what past judgements have been made; instead, all is now crystal clear, and there for all to see. So far, so good. But what if the Bill adds to, or otherwise alters, the notion of public nuisance?    

Traditionally, the essence of public nuisance is that it is a public nuisance. That is to say, it affects either the public at large, or a sizeable section of the public, in contrast to something that might be a nuisance to an individual, or a small number of people. Obstruction of a major public highway, or factories pumping noxious materials into their neighbourhood, are examples of public nuisances. Along with a need to affect substantial numbers of people, a public nuisance also needs to have what we might call substance: it must in some way interfere with the public’s ability to do, or enjoy, what they can rightfully expect to do, or enjoy. Using the two examples above, in the first the public are denied the ability to travel on a road, in the second they are unable to enjoy clean fresh air.

Now let us consider Clause 59, and subsection (2) in particular, which defines ‘serious harm’ that might arise from a ‘public nuisance’. Immediately, in the opening phrases, we can see a broadening of scope: the public, or a section of the public, has now become ‘a person’. Instead of ‘causes serious harm to the public, or a section of the public’, subsection (2) has ‘causes serious harm to a person’ (emphasis added). No doubt this is shoddy drafting, but the inevitable effect is to broaden the focus of a public nuisance to include a person suffering nuisance. The requirement for a public nuisance to affect the public at large has been removed. It is now sufficient that ‘a person’ suffers ‘serious harm’, and the crime of public nuisance has been committed.

Subsection (2) goes on to define what is meant by ‘serious harm’. Subsections (2)(a) and (b) are unremarkable, apart from being redundant, in that they are more than amply covered by other offences — more shoddy drafting — even if it is not unreasonable to suppose that some might consider killing and maiming other people is indeed a public nuisance. Subsections (2)(c) and (d) however are an entirely different matter. Instead of substantive harms, we have a woolly list of notional harms, some of which are entirely subjective. The stand out one is ‘annoyance’: the crime of public nuisance now includes any act (or omission) that leaves a person, or persons unknown, seriously annoyed. It is enough to leave Dr No feeling, well, seriously annoyed.

Global in its reach as the new definition of serious harm, and so public nuisance, is, the Bill extends it even further. Subsection (2)(d) adds the mere possibility that someone might feel seriously annoyed to the list of serious harms. That no harm has actually occurred, is neither here nor there; doing (or not doing) something that creates a risk that someone somewhere might feel seriously annoyed is now a criminal act. It is enough to leave Dr No feeling, well, seriously annoyed.    

Last, and perhaps most alarmingly of all, though clause 59 is generally seen as a restriction on protests and demonstrations, Dr No can see no such limitation in the wording. It appears to apply to anyone, doing (or not doing) anything, that the authorities decide puts other persons at risk of suffering ‘serious annoyance’. If a blogger writes a contentious post that leaves, or might leave, a reader or readers unknown feeling seriously annoyed, then the blogger will have committed a criminal offence, and on conviction, will be liable to a prison sentence not exceeding ten years. It’s right there in clause 59: ‘A person [the blogger] commits an offence if he does an act [writes a post that] causes serious harm [because a person] suffers serious annoyance’.

Make no mistake, this Bill will give the police and the government the power to criminalise any free speech that, in their opinion, puts people at risk of feeling ‘seriously annoyed’. Check that: the authorities won’t even have to produce Mr Seriously Annoyed of 18 Acacia Gardens, the mere fact there might be a Mr Seriously Annoyed of 18 Acacia Gardens is sufficient to prove a criminal act has occurred. Truly, the invisible Rubicon has been crossed, not on the jack boots of soldiers, but on the dainty designer shoes of Priti Patel. Authoritarianism will have arrived, not with a bang, and hardly even a whimper. It is only further down the road that the dainty shoes turn into jack boots, stamping on a human face — forever.


  1. steve Reply

    Dr No, I’ve some experience of the law, albeit as an observer.

    Violence is generally speaking not tolerated in the UK, although there are of course scenarios where physical violence is tolerated. It may be tolerated for some self-defence, it may be tolerated when used by the police in certain situations.

    Physical violence is normally very obvious by its very nature.

    What happens though, when the violence used is not physical or obvious and therefore under the radar? Does it become something else?

    Is there such a thing as legal violence? I’m not talking about physical self-defence here. No, the law can be created to fulfil any agenda and any objective the creators wish.

    They can then use this legal violence to do as they want.

    When the power of the many is given to the power of the few in our democracy, that power can be manipulated to suit, those who make our laws.

    I suspect most people won’t notice this continuing insidious creep for various reasons.

    How would we push back though when to push back is illegal?

    It matters not one scrap who is in power. A change of party or people will do nothing as they also become the power and will do whatever it takes to protect the status-quo.

    The underlying structures which drive the system is everything, the people in the system are nothing, they simply become the system!


    • dr-no Reply

      This is why free speech, and protests and demonstrations, which are examples of the expression of free speech, matter so much: they are the only way to counter descents into authoritarian hell. Even then, they are not guaranteed to succeed, but without them there is no hope, literally no hope – the boot, forever.

      If we look at Germany in the 1930s, a country which embraced authoritarianism, Dr No suggests we can see another tipping point, the one when the majority make that embrace. This is typically heavily manipulated by the powers that be, using an existential threat as the enemy (the Jews in Germany, covid today). To the mass of citizenry that don’t care to think too hard about things, the bargain is simple: align with the state, follow its orders to the letter, and persecute all enemies of the state, and the state will provide and protect. These citizens have then become both the automatons of the state, and the enforcers of the state’s authority.

      That doesn’t seem too far off a description of where we are today.

      The only effective guard against this collective madness is free speech. Everything else, democracy, the rule of law, the thriving of the arts and science, fair and free trade and commerce (as opposed to cronyism), everything is nothing without free speech.

  2. Annie Davenport Turner Reply

    ‘…it must in some way interfere with the public’s ability to do, or enjoy, what they can rightfully expect to do, or enjoy.’
    So, the very Bill itself is liable for a hefty fine and imprisonment, because the Bill is interfering with the public’s ability to enjoy anything.

    Plus, it feeds just ever more of this ‘You must be feeling…’ twaddle of projection, which has already, even if merely socially and ferrpootically, screwed up the world, and now could become ‘law’.

    Yes, deeply concerning times. Meanwhile, all eyes on the small Sputnik attention deflector….

  3. Tom Welsh Reply

    “It is enough to leave Dr No feeling, well, seriously annoyed”.

    Well put!

    Does this imply that the Act itself is illegal under its own provisions?

  4. Tom Welsh Reply

    “Make no mistake, this Bill will give the police and the government the power to criminalise any free speech that, in their opinion, puts people at risk of feeling ‘seriously annoyed’”.

    Well, the police and the government themselves might choose to feel seriously annoyed at anything that I do (or don’t do).

    This act establishes the rule of law as understood by Caligula and Ghengis Khan. Namely, the feelings of the ruler ARE the only law.

    • dr-no Reply

      Exactly. The Bill if enacted will mean the government/police can decide what can and can’t be said, using the test of whether someone somewhere might be seriously annoyed. They don’t even have to produce this person or persons unknown, it is enough if there is a risk that they might become seriously annoyed. Given annoyance is totally subjective, it is the ultimate flexi-test that can bent to any purpose. Melinda Mills, writing in the BMJ article linked in the post, is clearly ‘seriously annoyed’ by published material that runs contrary to the Establishment narrative, so much so she thinks people publishing such material should in certain circumstances be criminalised. The PCSCB will do the job for her, and better. It matters not one jot whether the material is sensible debate, accidental misinformation or malicious disinformation, as long as someone is (or might be) seriously annoyed, the police can step in.

      Our learned brethren have made much of the introduction of the mens rea bit (59 (1) (c)) ie there has to be a ‘guilty mind’, which was effectively absent in the common law version of public nuisance. But it won’t be much help to the defence, because recklessness is sufficient. Dr No should have know that publishing a post questioning lockdowns/masks/vaccine effectiveness was likely to cause serious annoyance in certain quarters…

  5. dearieme Reply

    Boris has had his twin triumphs of Brexit and the vaccines. Good for him – few PMs achieve as much.

    Now it’s time for him to bugger off.

  6. dr-no Reply

    There has been a further development, which you can make of what what you will: the committee stage, which was going to be rushed through as quickly as possible, has now been delayed until the summer. Some anti-bill groups have claimed this as a victory, but Dr No is not convinced. The setting back happened on 17th March, before yesterday’s protests, and there is another obvious reason why the government have moved the timing: to allow the heat to cool down, and perhaps even time the publication so that it gets buried in other news. The current expected date for the report is 24th June, mid summer, and, on current timings, three days after lockdown big bang.

  7. James Robinson Reply

    It’s curious that Lord Sumption (being his field) hasn’t voiced his opinions on this troubling development?

    Without proper scrutiny, weak politicians / processes and a manipulative media are complicit in this.

    The people should push back, but they are too distracted too either care or resist.

  8. Denis Palgrave Reply

    As a former PHI this concept of public nuisance interests me.
    The enforcement of the earlier Victorian era Public Health Acts was undertaken judiciously and sparingly by the local authorities who employed me. Public nuisance was certainly not private nuisance, and there was never any chance of even getting to court unless several residents were substantially affected by the nuisance. Case law established that for a nuisance case to be successfully prosecuted, it had to be shown to be deleterious to the reasonable man. That meant that complaints from those of an unreasonably sensitive nature, or from vexatious complainants were not pursued formally. Although often informal mediation was attempted.
    Another issue seems to me to be problematic, not just in connection with this legislation. It is the widespread adoption of the issuing of fixed penalty notices by enforcement officers. Back when I was such an officer, penalties were handed down by courts, either magistrates or county courts, and you had to have a cast iron case before you dared present a case to them. I remember waiting in court for my case to be heard, and seeing a railway ticket inspector appear and have to present a list of several dozen fare evaders to the magistrates before fines were issued. Whilst in the vast majority of such cases it was a formality and no defence was offered, at least there was a sense that there was independent scrutiny and supervision of the authority’s action.
    This current legislation strikes me as a rehash and extension of what has become known as “hate laws”. The emphasis then was on not causing offence, and persons who were not offended themselves could be offended on behalf of others who they judged might be offended if they saw or heard the offensive material.
    Now we have concept of annoyance, which is pretty small beer for the might of the state to be involved with. I am annoyed that the football team I support doesn’t win all its matches. So what, I just accept that life comes with its downsides and disappointments.
    Next step will be to create an offence of being indifferent to someone’s feelings, in the way that BLM do not accept the absence of racism in a person as sufficient. They insist that you have to actively call out and work to remove racism in others, otherwise you are at fault.
    We certainly live in strangely “liberal” times.

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