Journal of Rights and Justice March 2020-Vol 1 (i) Journal of the Centre for Rights and Justice, Nottingham Law School, Nottingham Trent University 1 Journal of rights and justice-ISSN 2732-4265 Contents `2 Editorial 3 Martin Kwan Should there be a tort for 4-28 Section 4A of the Public Order Act 1986? Holly Littlewood The Boundary Between 29-55 Education and Healthcare Provision in Education, Healthcare Plans: To what extent does the SEND Tribunal Single Route Of Redress National Trial, represent a move towards a more holistic approach? Bachar Hakim Syrian War: The Historical 56-67 Context Michael Grayflow Treating Young Offenders 68-77 in Early Rome Javier García Oliva The Phoenix and the 77-87 and Helen Hall Mocking Bird: How fantasy and children’s literature has shaped the recognition and protection of human rights. 2 Editorial It is a great honour to be the editor of this inaugural edition of the Journal of Rights and Justice (“JRJ”), a publication produced by the Centre for Rights and Justice of Nottingham Law School, Nottingham Trent University. As might be expected, the journal reflects the broad and eclectic remit of the centre itself, bringing together a wide range of topics, all bound together by the common theme of rights and justice. We are therefore thrilled to have such a rich variety within this first iteration of the JRJ. It is fitting that the discussion opens with an examination by Martin Kwan of the need for a tort in respect of Section 4A of the Public Order Act 1986, as this draws out the interplay between private and public law, in a fascinating and highly topical context. Unlike many other rights focused journals, the JRJ aims to keep private law very much on its radar, given the importance of this dynamic of the juridical system when it comes to realizing rights and making them real in the world. Our attention then shifts to questions relating to the boundary between healthcare and education, and the adequacy of current mechanisms for ensuring that the interests of an especially vulnerable category of citizens are properly guarded, young people who are at potentially disempowered by virtue of both their age and additional needs. The issues brought to light by Holly Littlewood are of both academic and practical importance, given their focus on the effectiveness of the present oversight of the decision-making by public authorities in this arena. Then as a counterpoint to the immediacy and topicality of the opening articles, we shift to three historical discussions, which address a longer-view of the development and outworking of rights, but which all in different ways raise critical questions for twenty-first century justice. Bachar Hakim sets the Syrian war in context, providing a very helpful overview for anyone interested in understanding the backdrop to the conflict and human tragedies which have unfolded. Then Michael Grayflow probes the treatment of juvenile offenders by the criminal justice of early Rome, casting light on a topic which has hitherto been underexplored, and certainly does not feature prominently in most undergraduate courses on Rome Law. Finally, García Oliva and Hall examine how the cultural space of fantasy and children’s literature has enabled social dialogue to advance in ways which have enabled legal reform. Certainly from my perspective, it has been a great pleasure to engage with the variety of ideas and subject material covered within this edition. I am extremely grateful to all of the authors, not only for their academic contributions, but also their patience and graciousness throughout the editorial process. I would also like to take this opportunity to thank Prof Tom Lewis, Director of the Centre for Rights and Justice, for his dedication to this project, and very practical as well as moral support. I am indebted as well to Kerri Gilbert for her efficiency and kindness in addressing administrative and technical challenges. The Rev’d Dr Helen Hall, Editor, March 2020 Associate Director of the Centre for Rights and Justice, Nottingham Law School, Nottingham Trent University 3 SHOULD THERE BE A TORT FOR SECTION 4A OF THE PUBLIC ORDER ACT 1986? * MARTIN KWAN ABSTRACT Where a person is insulted and distressed by a wrongdoer who intentionally causes him/her distress, the act constitutes a criminal offence under s 4A of the Public Order Act 1986. This article argues that there is no actionable tort for the insult under the current English law. The only way to seek private recourse is to have a private prosecution (assuming there is not a public one). Whilst this can lead to a compensation order, there are shortcomings with this option. It will then explore whether the misconduct in s 4A POA should be recognised as actionable in tort. It is argued that the misconduct constitutes a private wrong. Furthermore, other jurisdictions have comparable torts. Therefore, Parliament should consider introducing a statutory tort. INTRODUCTION Where a person is insulted by a wrongdoer who intentionally causes him/her distress or alarm, and the victim feels distressed as a result, the act constitutes a criminal offence under s 4A of the Public Order Act 1986 (POA). The natural question that follows is whether the victim can have any private recourse against the offender, especially when the victim has suffered “harm” in the form of distress. Robert Stevens commented that the “law of insults is interesting both comparatively and, more importantly, theoretically”, because there is not a specific tort of insult under English law; whilst the laws of other jurisdictions make it actionable.1 Whilst this article is not a comparative law analysis, it is partly inspired by the Singaporean Protection of Harassment Act (2014), which has made its s 4A POA- equivalent both a criminal offence and a tort. This article thus explores whether the existing English common law doctrines can provide any cause of action for insults. It will be concluded that there is no actionable tort. Despite so, it will be noted that * LLB (Lond.), LLM (LSE). 1 Robert Stevens, ‘Private rights and public wrongs’, in Matthew Dyson (ed), Unravelling Tort and Crime (CUP 2014) 111, 137. 4 recently in Rhodes v OPO, dissenting Lord Neuberger and Lord Wilson signalled a willingness to expand the current law to cover for intentional act causing distress.2 This forms a striking contrast with the previous judicial attitude towards humiliation in 2004, where the House of Lords voiced strongly against creating such tort.3 Nevertheless, it is unlikely a common law tort will be created. It has been commented that one “would have to have a very bleak view of human life” if one is to disagree that humiliation is a bad thing.4 Therefore, it will also explore whether the misconduct in s 4A POA should be recognised as an actionable tort. Whilst private prosecution (assuming there is not a public one) is a possible way to seek private recourse, it does not always provide a satisfactory result. Also, it will be argued that the misconduct constitutes a private wrong. Furthermore, it is particularly interesting to note that other jurisdictions have already introduced comparable torts. Therefore, there should be a statutory tort. SECTION 4A OF THE PUBLIC ORDER ACT 1986 Section 4A of the POA provides that: 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.5 The offence can be committed in both public and private places, except in dwellings.6 It is a defence for the defendant to prove that his/her conduct is reasonable.7 It is a summary offence8 and has been described as one of the “most serious summary offences”.9 The words “threatening or abusive” and “insulting” under s 4A should be accorded their ordinary and natural meaning10. There is a minimum threshold for the harm: whilst 2 [2015] UKSC 32 [119]. 3 Wainwright & Anor v Home Office [2003] UKHL 53 [62]. 4 Anthony Quinton, ‘Humiliation’ (1997) 64(1) Social Research 77, 77. 5 Similar offence committed by electronic means are additionally covered by s 1 Malicious Communications Act 1988 and others. Those with a discrimination element (e.g. based on race) are covered by Racial Discrimination Act. 6 Public Order Act 1986, s 4A(2). 7 Public Order Act 1986, s 4A(3)(b). 8 Public Order Act 1986, s 4A(5). 9 John Sprack, A Practical Approach to Criminal Procedure (OUP 2018) para 8.03. 10 Neil Parpworth, Constitutional and Administrative Law (OUP 2018) para 20.56, citing Brutus v Cozens [1973] AC 854. 5 the harassment or distress does not have to be grave, it should not be trivial.11 Distress and harassment are different. “Distress by its very nature involves an element of real emotional disturbance or upset”.12 Yet, for harassment, one “can be harassed, indeed seriously harassed, without experiencing emotional disturbance or upset at all”.13 For example, regarding “fuck you” or “fuck off”, it has been held that: … frequently though they may be used these days, we have not yet reached the stage where a court is required to conclude that those words are of such little significance that they no longer constitute abuse. Questions of context and circumstance may affect the court’s ultimate conclusion as to whether, in an individual case, they are abusive… I stress that the decision on an issue of this kind will always be fact dependent.14 It should be noted that Parliament has not made it an offence to swear in public.15 For “fuck” or “fucking”, whilst they are potentially abusive, Bean J commented that they are “rather commonplace swear words”.