The shocking police doorstepping of Telegraph columnist Allison Pearson last week has rightly sparked grave concern about the parlous state of freedom of speech in Britain. Sir Keir Starmer has now joined the leader of the opposition Kemi Badenoch in arguing that police should be concentrating on the physical crime increasingly blighting our towns rather than things that are said online. ‘Police the streets, not the tweets’, has become a popular refrain overnight.
But why are the police trawling the internet for wrongthink in the first place? So far any discussion of this has been focused on non-crime hate incidents (NCHIs). Badenoch has called for the laws around NCHIs to be reviewed. Shadow home secretary Chris Philp has also criticised police focus on NCHIs (with more than a little chutzpah, as Laura Kuenssberg pointed out to him on Sunday, given it was under a Tory government that NCHIs were brought in in the first place). Meanwhile, revelations in the Times have shown that more than 13,000 NCHIs had been recorded in the year to June, including against children as young as nine.
Chilling as this is, however, it seems that the issue of non-crime hate incidents has become something of a red herring in Pearson’s case. Pearson had originally reported that she had been accused of an NCHI. But in fact, however this misunderstanding happened, the alleged offence that made plod come knocking is very far from a ‘non-crime’. As Essex police later explained, the Gold Command unit now investigating her is doing so for allegedly ‘stirring up racial hatred’ under the Public Order Act 1986, an offence which carries a maximum penalty of seven years in prison.
Since the civil unrest this summer, significant jail sentences have been handed out for this offence because of things posted on social media. Many will see some of these punishments as draconian and unjust – certainly they’ve represented a significant curtailing of free speech. There was Lucy Connolly, mother and wife of a Tory councillor, who received 31 months in prison for a single ‘raging’ tweet, sent and soon deleted on the night of the Southport attack. There was Julie Sweeney, a grandmother and sole carer to her husband, who was sentenced to 15 months behind bars for a Facebook post. Only this week, Daffron Williams, an Afghanistan and Iraq veteran suffering from PTSD, was sentenced to two years for ‘anti-Islamic’ Facebook messages.
While few would defend what they said, many will think the fact they went to prison for it is an authoritarian overreach. Julie Sweeney, for one thing, could not possibly have contributed to the riot she had posted about – she made her post the morning after it happened. When it came to sentencing Connolly, the judge told her that ‘It is strength [sic] of our society that it is both diverse and inclusive’ – suggesting that part of her crime lay in having violated this progressive orthodoxy. One of Williams’s posts found to be inciting was an AI image of a child dressed as a sword-bearing medieval knight alongside a lion, with the caption: ‘Time to wake up the lion to save our children’s future.’ Many will find it hard to believe that this represents criminal speech ‘likely’ to stir up racial hatred (as he pleaded guilty to).
How has our liberal democracy got to this disturbing level of censorship? Where, even before the riots, it seems more people were being arrested for online posts in 21st century Britain than were arrested in America as part of the Red Scare? As Free Speech Union founder Toby Young has argued in these pages, the simple answer is through changes to the law. To cut a long story short: we have exchanged the old common law breach of the peace standard for criminal speech – which required a material link between speech and disorder for there to be a crime – for the much more nebulous standard of ‘stirring up hatred’. (Section 127 of the Communications Act 2003 has also played a role, along with several other laws).
What the focus on NCHIs and on police culture this past week has to some extent obscured is that the police are simply enforcing the law as it has long existed on the statue book. Essex Police and Crime Commissioner Roger Hirst caught some flak on X this week after pointing this out. ‘We can’t go around ignoring crimes just because they’re politically sensitive’, he explained to LBC. ‘After all, the 1986 Public Order Act defines this as a crime’, and what’s more, since ‘the maximum sentence is seven years’, that implies stirring up racial hatred is far more legally serious, than, say, shoplifting.
Now, Mr Hirst was perhaps being tone-deaf in apparently ignoring the question of whether a journalist should be being investigated for a year-old tweet. But we can hardly fault him on his logic. ‘Stirring up racial hatred’ – whatever that actually means – is currently a crime, and Hirst is not wrong to note that it’s the job of the police to enforce the law, whatever it happens to be. As he later added on Conservative Home: ‘If the law is felt to be a constraint on free speech then that is for Parliament to debate and hopefully change.’ Indeed. One can see why coppers might feel aggrieved when police continually get it in the neck from politicians for enforcing the laws that Parliament made.
Unfortunately, this means that many of those criticising the investigation into Pearson are shouting in the wind. Badenoch, for instance, has said it is ‘absolutely wrong’ to have ‘journalists getting visited by the police for expressing opinions’ but has said nothing about the specific law under which this is being carried out. Even Starmer has told police forces to ‘concentrate on what matters most to their communities’ – an intervention that only amounts to handwaving if he refuses to reckon with why police feel Pearson’s post might be considered a crime in the first place. Boris Johnson blasts police for ‘shameful’ time-wasting on online messages, while declining to criticise the ‘decades-old statute’ that has police taking an interest in what Pearson may or may not have been thinking when she sent her post.
We should hardly expect much more than handwaving on free-speech issues from Labour. But for those who do care, given the public concern about the chilling investigation of Pearson, this case surely represents a major opportunity. After years of overbearing, censorious speech laws, the statute book is an unweeded garden that grows to seed. Surely the time is now to pull up the roots.
Comments