In preparation for Lucy Connolly’s Court of Appeal hearing earlier this year, I did what a good brief should, and worked out near-verbatim answers to the trickier questions the judges might fire at me. Fat lot of good it did us in the end, of course, but Starmering beats stammering: the Prime Minister is fond of this technique, unsurprisingly given his background. The trouble is, it only really works once.
In February, in response to Vice-President Vance’s criticism of the British State’s suppression of free speech, Sir Keir managed to get his bit out: “We’ve had free speech for a very, very long time in the United Kingdom, and it will last for a very, very long time […] I’m very proud of our history there.” Is he very though?
Is it pride he feels when he looks at the history of the Paul Chambers case, for instance, when the CPS, under his leadership as Director of Public Prosecutions, pursued a young man through the Magistrates, Crown, and High Courts, for a harmless piece of flippancy, an obvious joke about blowing up an airport, which none of the relevant authorities took seriously? If there’s any truth to the Guardian’s report of his personal intervention to continue fighting Chambers’s appeal “to save face” (and it is inconceivable he wasn’t aware of the matter) then he must have had in mind a different pride, and a different history.
But his answer flew well enough, and the discussion moved on. A few months later, in Scotland, the question was again raised in front of the US President. Dusting his cuff and pulling a grin as if in dad-like apology for an overused joke, he parried with, “We’ve had free speech for a very, very long time here, so we’re very proud about that and we’ll be protecting it,” before being interrupted. Indoors later that day, he again stuck to the script — “Free speech in this country has been [sic] for a very long time, and we’re very very proud of it, we will protect it forever.”
The fourth outing of the very-very-long-time-very-very-proud defence came at Chequers the other week. “It’s one of the founding values of the United Kingdom, and we protect it jealously and fiercely, and always will, and we will bear down on any limits on free speech,” he began. And to conclude, “We have had free speech in this country for a very long time and we will always protect it.” But sandwiched between these two pieces of now familiar pabulum was something with a new flavour: “I draw a limit between free speech and the speech of those that want to peddle paedophilia and suicide social media to children.” The Paedo Pivot. They should teach it at Bar school.
Over the two months since Trump’s Scottish visit, something in the order of 2,000 people were arrested in the UK for online communications offences, including, most publicly, Graham Linehan. In an attempt to deflect the backlash from the comedian’s detention, the PM said the police should “focus on the most serious issues”, while the Met Commissioner Sir Mark Rowley put out a statement asserting that it’s not the police’s fault as they have no choice but to investigate reported hate crimes, and the law needs to be changed.
Clearly, then, there is defensive anxiety among the new Establishment about restrictions on free speech in the UK. But whose fault is it, and what can be done?
My own experience of the senior ranks of the police, which comes mainly from defending officers in their disciplinary tribunals, often for speech transgressions of one kind or another, is that the Force has been more thoroughly captured by extreme progressive zealotry than any comparable institution. For evidence, peruse almost any of the College of Policing’s recent output.
The Hate Crime Operational Guidance is, as you might imagine, representative. Turgid and internally inconsistent, it contains countless encouragements to go in hard on the likes of Linehan: “Positive action should be taken,” “Hate crimes should be treated as priority incidents,” “There are occasions where an immediate response by a police officer may not be appropriate or possible… Where such delays occur, a supervisor should consider the reasons given and set out a clear plan for how and when the incident will be responded to.” At the same time, a light dusting of uninformative references to “proportionality” provides plausible deniability.
But the only important message — that officers have wide discretion and must use their common sense — is buried among little nudges as to how that discretion should be exercised: “Where the evidence justifies it, taking positive action is preferable, but the decision to arrest is always a matter for officers, and should be based on the evidence available at the time.” Taking all this stuff together, the thrust of the guidance is clear: if a member of a protected group alleges hate crime, and you don’t get stuck in immediately, you’ll have to answer for it.
So Commissioner Rowley is right to say the Guidance could usefully be amended, but he’s wrong to imply that officers have no choice but to investigate. When an allegation contains no crime, as in the recent Linehan arrest, or when it does but the crime is trivial, the police need make no arrest. Indeed, generally they must make no arrest, because for an arrest to be lawful it has to be “necessary” — a law the police routinely ignore. Most victims of unnecessary arrests don’t have the money to sue. Linehan, funded by the Free Speech Union, is an exception.
But the UK’s status as global number-one free-speech laughing stock does not rest solely, or even mainly, on the volume of arrests, but rather on the substantial sentences of imprisonment that can follow these arrests — of which my former client Lucy Connolly’s is perhaps the best-known example. Although I write this with her knowledge and consent, my role as her advocate is over. How, then, did she end up spending over a year in prison, for posting and then deleting after less than four hours, “Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care. While you’re at it, take the treacherous government and politicians with them. I feel physically sick knowing what these families will now have to endure. If that makes me racist, so be it.”
“The UK’s status as global number-one free-speech laughing stock does not rest solely, or even mainly, on the volume of arrests.”
The simplest answer, as her less forgiving critics would have it, is that she pleaded guilty to Stirring Up Racial Hatred, and accepted the Crown’s case that she was guilty of both the more serious version of the offence — s.19(1)(b) intention to stir up — and the highest categorisation on the sentencing guidelines — intention to incite serious violence. That gave a starting point of three years’ imprisonment before the reduction for a guilty plea. And then the Court of Appeal rejected her claim not to have properly understood what she put her signature to when accepting an intention to incite serious violence. So what, really, is the problem?
Well, even if she had understood that she was signing up to be sentenced for an intention to incite serious violence (and I have no wish, and no need, to relitigate that here), her agreement would have been made in the same spirit as her admitted agreement to be sentenced on the basis of an intention to stir up racial hatred: namely, that she didn’t think she would win if she argued it in front of a judge, and she didn’t want to risk losing any of her guilty plea discount by trying.
To be clear, she said in the police interview that she “didn’t intend to cause hate or racial issues”, and despite waiving privilege in the Court of Appeal, there was no evidence of her ever having said to anyone that she had in fact had any criminal intention. Rather, her decision to accept the Crown’s allegation of intent was really a predictive judgment call, a guess at the inferences a judge would draw— and one about which both she, and the lawyer who was advising her at the time, may well have been right.
So, on one view, the problem isn’t so much the action of this particular court in this particular case — which was, after all, presented with an apparent acceptance to be sentenced on the Crown’s case with no argument about intention. But rather it is the broader political climate in which a defendant in Mrs Connolly’s position can make an accurate judgment, on accurate legal advice, that a judge will probably decide that her tweet demonstrated, to the criminal standard of “sure”, an intention to incite serious violence. For my own part, I just can’t see it.
Certainly, there were elements of the proceedings which, in my opinion, might have been different, and might then have made some difference. The Crown could have split the allegation into two counts to at least give her the option of putting to a jury, rather than a judge, the issue of whether she even intended to stir up racial hatred (let alone incite serious violence). And the decision to refuse her bail on 22 August 2024, two weeks after the riots had stopped, was, in my view, unjustifiable. Nevertheless, she might still have made the same decisions regarding her plea, and might still have been right to do so.
The trouble is, to the Progressive mind the success of multiculturalism isn’t just good, it’s the highest good, and its failure the worst ill. All decent people, therefore, will carefully avoid saying or doing anything that even might push things in the wrong direction. And so anyone who does take that risk is not a decent person, and can only really have been intending the bad outcome: if you don’t want the worst imaginable thing to happen, you don’t take the slightest chance of bringing it about. It’s only a short distance away from “silence is violence”: evil must be fought, not ignored, and certainly not diced with. This, in any event, seems to me the most likely chain of reasoning, unconscious or otherwise, of those that believe Lucy Connolly deserved her 31-month sentence.
But it’s not generally fair, nor conducive to the aim of restoring free speech in the UK, to simply blame the judges. Of course the judiciary is more Left-wing than the national average. Even Tony Blair thought so. But it’s the same in all professions. They’re Gen-X-ers and young boomers who attended top universities in the late 20th century. It would be astonishing if it were otherwise. But on the criminal side at least (I make no comment about immigration tribunals), they tend not to be activists. Most of their work has no political valence to it, and the culture in their corridors, so far as I’m familiar with it, is to try very hard to be boringly fair. They don’t always succeed, but politics basically isn’t their game.
It would be nice if the judiciary were more politically representative of the people they serve, if only for optics’ sake. But if your free speech laws cannot withstand a wave of Left-wingers on the bench, then those laws aren’t up to much.
So if the law isn’t currently up to it, how should it be changed? First, section 127 Communications Act 2003, which criminalises “grossly offensive” messages sent privately even where the recipient is unbothered, delighted or amused, must be repealed: we should be free to send electronically anything we are permitted to say in person. This outdated offence, with its absurd privileging of “a public electronic communications network”, has no place in modern society.
Secondly, Stirring Up Racial Hatred needs a refresh. As another former client Jamie Michael discovered to his detriment, all that’s required — at least for an arrest and prosecution, although not in his case a conviction — is a spirited objection to illegal immigration with a couple of borderline-insulting words thrown in. The 1976 expansion of the offence, to include words that are merely “likely” to stir up racial hatred, now has too great a chilling effect. After all, there arguably is a good chance that some racist somewhere might see your punchy anti-immigration post and feel inspired to a shade more hatred than they were feeling already. And that is now enough for the police to put your door in.
“If your free speech laws cannot withstand a wave of Left-wingers on the bench, then those laws aren’t up to much.”
Whereas common sense and proportionality were once inherent features of the system at every level – before the communality of the rules of political engagement, including the conventions around free speech, had been fractured — now they might be absent until — as in Jamie’s case — they are effortfully injected by legal argument in the Crown Court about the jurisprudence on the right to freedom of expression. Safer, then, to just keep your mouth shut on the most significant political issue of our age.
The curious fact that both sides in the culture war offer the same answer about where “the line” should be drawn — speech that incites real-world violence — shows that it is no answer at all. Causation is a quicksilver concept, which lawyers, like philosophers, struggle to delineate. Are you morally responsible, and should you be held criminally liable, for a bad outcome if you can foresee that your words could make that outcome more likely?
If the outcome is bad enough — like terrorism — the answer is sometimes yes. That is why, in those rare cases, we criminalise the mere expression of support. The modern State, though, now seems to be taking a de facto similar attitude to expressions of political opinion that have the potential to influence others in a way that threatens the wellbeing of its sacred cows. But that is not terrorism, and should not be illegal.
Obviously, the less racial hatred there is, the better. The law can, and does, seek to reduce it. But to try to silence millions of citizens who want to share their views on immigration, despite in some cases lacking the verbal dexterity required to avoid rude words and other tripwires, is a terrible own goal.
Starmer reminded us, in his conference speech this week, of the mid-century roots of his socialist convictions: his father’s frustration that the nation did not respect him because he worked with his hands. But the frustrations of the modern working class, certainly on immigration, seem to be of less concern – acknowledged, now and then, but always with a disapproving caveat: “This party is proud of our flags, yet if they are painted alongside graffiti telling a Chinese takeaway owner to ‘go home’…”
Suppressed views, like suppressed emotions, tend to erupt with great force. If disputes over our nation’s future are to be conducted peacefully through debate and not violently on the streets, speech must be free. And if Keir Starmer wants that to last a very, very long time, as he claims, he must act now, and make us all very, very proud.