CONTROVERSY: Over the edge

When controversial art challenges the rules of public order, how should the police respond? Arts Council England have created tools for them to work by in the form of public order law packs, written by executive director Simon Mellor and policy and research officer Nicole McNeilly, who introduce them

All of us who work in arts and culture cherish the principle of freedom of expression, but presenting controversial work can, in practice, be extremely challenging.

Executives and boards will often have many sleepless nights about what might await them – legal chal- lenges, police intervention, or dam- age to their organisation’s reputation. Sometimes it may seem a lot easier not to proceed.

Recently, we have seen some good work from the sector to support or- ganisations involved in presenting controversial work. For example, the movement What Next? has devel- oped comprehensive guidance for fundraising or programme decisions that have the potential to cause ethi- cal or reputational risk, and Cause4 has developed a best practice ethical fundraising policy template.

The role of the Arts Council in relation to particular events is nec- essarily limited. Responsibility for decisions about proceeding with a particular project must rest with the executive and board of the organisa- tion involved. But we do think we can play a valuable role in engaging in high level conversations with the rel- evant authorities and advocating on behalf of the sector in trying to ensure that wherever possible the principles of freedom of expression in relation to artistic endeavour are understood and respected.

We recognise that public order is a challenging legal area to navigate. The circumstances in which work is shown varies enormously around the country; police forces must take into account the particular local context when planning advice and any po- lice response. Often multiple critical factors come into play and the police service – and arts organisations – will be faced with difficult decisions on how to proceed in order to maintain public order.

This can result in different police forces taking different approaches to the same artwork when it is, for instance, on tour. To date, the police service has had no agreed guidance to help them deal with potentially controversial art works. In this vacu- um, police forces have often tended towards caution to minimise the po- tential risk of disorder. The result, in our view, is that in too many cases the public’s ability to experience art (however controversial and difficult) is being restricted.

Alongside our colleagues at the Tate and Index on Censorship, we’ve been working with the Director of Public Prosecutions, her team in the Crown Prosecution Service and the police service to address this chal- lenge. We focused on how we might encourage police forces across Eng- land to develop a more consistent approach to policing controversial art. We wanted to give the police service tools to help them make more informed decisions with regard to controversial works of art. We were determined, wherever possible, to see freedom of expression supported.

As a result of this work, we are happy to report that the Crown Pros- ecution Service and the National Police Chiefs Council have now offi- cially recommended and distributed a public order law pack to every police force across England and Wales.

This pack is one of five produced by Index on Censorship and Vivarta and funded by the Arts Council. The packs outline the legal parameters and provide case studies in five areas where controversy commonly arises: child protection, counter-terrorism, race and religion, obscene publica- tions as well as public order. With this law pack now in circulation among police forces, it should be easier for arts or cultural organisa- tions planning to present potentially controversial work to enter a dia- logue with their local force. The two parties can communicate on the  basis of this document.

While the sector continues to lead this debate, we recognise that it’s never been more important to ensure that the sector have access to guidance and decision making tools to help make informed decisions that respect and protect the right to freedom of artistic expression. We strongly recommend that if you are considering present- ing work that might be controversial, you read these packs and familiarise yourself with the legal issues and the various case studies that they explore. Remember to start planning early, in- volve your board in your discussions and talk to the police well in advance.

We recognise that getting this law pack circulated is just the start of the journey. We are now in conversation with What Next, Index on Censorship and Cause 4 to explore what further training and support might be put in place for executives and boards con- sidering presenting controversial art. We want to do what we can to help organisations plan with more confi- dence – and ensure that there are a few less sleepless nights for both trus- tees and staff!


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