In preparation for Lucy Connolly\u2019s 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.<\/p>\n
In February, in response to Vice-President Vance\u2019s criticism of the British State\u2019s suppression of free speech, Sir Keir managed to get his bit out<\/a>: \u201cWe\u2019ve had free speech for a very, very long time in the United Kingdom, and it will last for a very, very long time [\u2026] I\u2019m very proud of our history there.\u201d Is he very though?<\/p>\n Is it pride he feels when he looks at the history of the Paul Chambers case<\/a>, 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\u2019s any truth to the Guardian\u2019s report<\/a> of his personal intervention to continue fighting Chambers\u2019s appeal \u201cto save face\u201d (and it is inconceivable he wasn\u2019t aware of the matter) then he must have had in mind a different pride, and a different history.<\/p>\n 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<\/a>, \u201cWe\u2019ve had free speech for a very, very long time here, so we\u2019re very proud about that and we\u2019ll be protecting it,\u201d before being interrupted. Indoors later that day<\/a>, he again stuck to the script \u2014 \u201cFree speech in this country has been [sic] for a very long time, and we\u2019re very very proud of it, we will protect it forever.\u201d<\/p>\n The fourth outing of the very-very-long-time-very-very-proud defence came at Chequers the other week. \u201cIt\u2019s 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,\u201d he began. And to conclude, \u201cWe have had free speech in this country for a very long time and we will always protect it.\u201d But sandwiched between these two pieces of now familiar pabulum was something with a new flavour: \u201cI draw a limit between free speech and the speech of those that want to peddle paedophilia and suicide social media to children.\u201d The Paedo Pivot. They should teach it at Bar school.<\/p>\n Over the two months since Trump\u2019s Scottish visit, something in the order of 2,000<\/a> 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\u2019s detention, the PM said the police should \u201cfocus on the most serious issues\u201d, while the Met Commissioner Sir Mark Rowley put out a statement asserting that it\u2019s not the police\u2019s fault as they have no choice but to investigate reported hate crimes, and the law needs to be changed.<\/p>\n 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?<\/p>\n 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\u2019s recent output.<\/p>\n The Hate Crime Operational Guidance<\/a> is, as you might imagine, representative. Turgid and internally inconsistent, it contains countless encouragements to go in hard on the likes of Linehan: \u201cPositive action should be taken,\u201d \u201cHate crimes should be treated as priority incidents,\u201d \u201cThere are occasions where an immediate response by a police officer may not be appropriate or possible\u2026 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.\u201d At the same time, a light dusting of uninformative references to \u201cproportionality\u201d provides plausible deniability.<\/p>\n But the only important message \u2014 that officers have wide discretion and must use their common sense \u2014 is buried among little nudges as to how that discretion should be exercised: \u201cWhere 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.\u201d 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\u2019t get stuck in immediately, you\u2019ll have to answer for it.<\/p>\n So Commissioner Rowley is right to say the Guidance could usefully be amended, but he\u2019s 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 \u201cnecessary\u201d \u2014 a law<\/a> the police routinely ignore. Most victims of unnecessary arrests don\u2019t have the money to sue. Linehan, funded by the Free Speech Union, is an exception.<\/p>\n But the UK\u2019s 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 \u2014 of which my former client Lucy Connolly\u2019s 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, \u201cMass deportation now. Set fire to all the fucking hotels full of the bastards for all I care. While you\u2019re 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.\u201d<\/p>\n \u201cThe UK\u2019s status as global number-one free-speech laughing stock does not rest solely, or even mainly, on the volume of arrests.\u201d<\/p>\n 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\u2019s case that she was guilty of both the more serious version of the offence \u2014 s.19(1)(b)<\/a> intention to stir up \u2014 and the highest categorisation on the sentencing guidelines<\/a> \u2014 intention to incite serious violence. That gave a starting point of three years\u2019 imprisonment before the reduction for a guilty plea. And then the Court of Appeal rejected<\/a> 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?<\/p>\n 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\u2019t think she would win if she argued it in front of a judge, and she didn\u2019t want to risk losing any of her guilty plea discount by trying.<\/p>\n To be clear, she said in the police interview that she \u201cdidn\u2019t intend to cause hate or racial issues\u201d, 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\u2019s allegation of intent was really a predictive judgment call, a guess at the inferences a judge would draw\u2014 and one about which both she, and the lawyer who was advising her at the time, may well have been right.<\/p>\n So, on one view, the problem isn\u2019t so much the action of this particular court in this particular case \u2014 which was, after all, presented with an apparent acceptance to be sentenced on the Crown\u2019s case with no argument about intention. But rather it is the broader political climate in which a defendant in Mrs Connolly\u2019s 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 \u201csure\u201d, an intention to incite serious violence. For my own part, I just can\u2019t see it.<\/p>\n 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.<\/p>\n The trouble is, to the Progressive mind the success of multiculturalism isn\u2019t just good, it\u2019s 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\u2019t want the worst imaginable thing to happen, you don\u2019t take the slightest chance of bringing it about. It\u2019s only a short distance away from \u201csilence is violence\u201d: 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.<\/p>\n But it\u2019s 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<\/a> so. But it\u2019s the same in all professions. They\u2019re 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\u2019m familiar with it, is to try very hard to be boringly fair. They don\u2019t always succeed, but politics basically isn\u2019t their game.<\/p>\n It would be nice if the judiciary were more politically representative of the people they serve, if only for optics\u2019 sake. But if your free speech laws cannot withstand a wave of Left-wingers on the bench, then those laws aren\u2019t up to much.<\/p>\n So if the law isn\u2019t currently up to it, how should it be changed? First, section 127<\/a> Communications Act 2003, which criminalises \u201cgrossly offensive\u201d 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 \u201ca public electronic communications network\u201d, has no place in modern society.<\/p>\n Secondly, Stirring Up Racial Hatred needs a refresh. As another former client Jamie Michael<\/a> discovered to his detriment, all that\u2019s required \u2014 at least for an arrest and prosecution, although not in his case a conviction \u2014 is a spirited objection to illegal immigration with a couple of borderline-insulting words thrown in. The 1976 expansion of the offence<\/a>, to include words that are merely \u201clikely\u201d 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.<\/p>\n \u201cIf your free speech laws cannot withstand a wave of Left-wingers on the bench, then those laws aren\u2019t up to much.\u201d<\/p>\n Whereas common sense and proportionality were once inherent features of the system at every level \u2013 before the communality of the rules of political engagement, including the conventions around free speech, had been fractured \u2014 now they might be absent until \u2014 as in Jamie\u2019s case \u2014 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.<\/p>\n The curious fact that both sides in the culture war offer the same answer about where \u201cthe line\u201d should be drawn \u2014 speech that incites real-world violence \u2014 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?<\/p>\n If the outcome is bad enough \u2014 like terrorism \u2014 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.<\/p>\n 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.<\/p>\n Starmer reminded us, in his conference speech this week, of the mid-century roots of his socialist convictions: his father\u2019s 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 \u2013 acknowledged, now and then, but always with a disapproving caveat: \u201cThis party is proud of our flags, yet if they are painted alongside graffiti telling a Chinese takeaway owner to \u2018go home\u2019\u2026\u201d<\/p>\n Suppressed views, like suppressed emotions, tend to erupt with great force. If disputes over our nation\u2019s 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.<\/p>\n","protected":false},"excerpt":{"rendered":"In preparation for Lucy Connolly\u2019s Court of Appeal hearing earlier this year, I did what a good brief…\n","protected":false},"author":2,"featured_media":467142,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5018,3,4],"tags":[748,30,393,43339,4884,26384,70390,155854,138838,1144,712,16,15,1764],"class_list":{"0":"post-467141","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-britain","8":"category-uk","9":"category-united-kingdom","10":"tag-britain","11":"tag-courts","12":"tag-england","13":"tag-free-speech","14":"tag-great-britain","15":"tag-hate-crime","16":"tag-hate-speech","17":"tag-judges","18":"tag-lucy-connolly","19":"tag-northern-ireland","20":"tag-scotland","21":"tag-uk","22":"tag-united-kingdom","23":"tag-wales"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@uk\/115301819657651290","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/posts\/467141","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/comments?post=467141"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/posts\/467141\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/media\/467142"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/media?parent=467141"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/categories?post=467141"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/tags?post=467141"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}