It’s police overreach season again on free speech and non-crime hate incidents, or NCHIs. On Remembrance Day morning, we had Essex police’s surreal doorstepping of journalist Allison Pearson, demanding an interview about a long-forgotten Tweet by her they refused to identify. Pearson has said the police told her it was a NCHI, though the force says it regards the issue as a criminal matter concerning material ‘likely or intended to cause racial hatred’ under the Public Order Act 1986.
Free speech is gradually being strangled by events like this
Regardless of the specific form of overreach, now a FOI request from the Times has unearthed episodes where police recorded NCHIs against a nine-year-old schoolchild who called someone a ‘retard’ and against two secondary school girls who accused another pupil of smelling ‘like fish’.
Neither should have happened. Last year the previous government promulgated a code of practice that forbids recording an NCHI against someone’s name, unless there is a real risk of significant harm or future crime and evidence of intentional hostility towards people with a given characteristic. It also mandates a careful regard for the right of free speech. The idea that either of these incidents qualified under these criteria is laughable.
Free speech is gradually being strangled by events like this. Moreover, in the short term there’s not much that we can do. Codes of practice are all very well, but in the absence of someone bringing judicial review proceedings, breach of them carries few consequences. And this government, to its discredit, has made it fairly clear that even if there may have been technical overreach it is not enormously concerned. Questioned about the Allison Pearson incident, Keir Starmer paid lip service to free speech and promised a review, but pointedly backed the police’s practice of recording NCHIs as a crime prevention measure. We also know that his Home Secretary Yvette Cooper is instinctively impatient with free speech concerns in such matters. Indeed last August she reportedly suggested that the present rules on NCHIs were if anything too protective of speech and restrictive of what could appear in police records, and probably needed relaxing.
But if we take a long view things may be different. Outside an increasingly beleaguered liberal and academic elite, police involvement in journalists’ tweets and playground tittle-tattle, fuels despair and exasperation for most people. This can be harnessed. Given a UK electorate that values liberty, competence and effectiveness more than you might think, conservatives now have a useful base to attack a government already historically inept and unpopular. Here’s a policy that they can adopt if they want to regain the moral and libertarian high ground.
First, they need to press for the NCHI guidelines to be enshrined in law. At present the rules preventing NCHIs from being reported are quite simply unenforceable. Every instinct of the senior police establishment, which has a vested interest in promoting identity politics and placating interest groups, is to ignore them. Conservatives need to make it clear that this must stop.
Secondly, they need to go on to the offensive on the free speech front. There may be a way to do this, too. The reason why you need to be frightened about a visit from the police about something you said on social media, or on the radio, weeks or months ago is this. In theory you can decline to talk or to go voluntarily to be grilled at the local nick by the police. But your choice is a specious one. The standard practice, which is at present entirely lawful, is for the police to warn you that if you do not cooperate you will later be arrested, your home searched and your computers, phones and papers taken away, probably for months, as evidence. For most people, especially home workers and even more journalists or writers, this makes the police offer one you can’t refuse.
This needs to be stopped. Suppose we changed the law and said that arrest for any speech crime, such as grossly offensive communications or matter likely to cause racial hatred or distress, required a warrant from a magistrate unless taking place at the actual time of the alleged offence. This would be easily defensible as a protection for free speech, leaving the police free to deal with inflammatory speeches at demonstrations and the like, but allowing people faced with complaints about what they had said in the past, if they wished, to stand by their views and resist pressure to give in.
The right of a person accused of speaking out of turn to say to the state, or the police, ‘Prosecute me if you dare; I’ll see you in court’ is an immensely valuable one. Properly put together as a protection for the small man’s right to speak his mind within the law, and to insist that the state prove its case if it wishes to sanction him, this could be an electoral winner, not to mention difficult to oppose convincingly. Kemi, Nigel and others: are you listening? What’s to lose?
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