15 JUNE 2023 | OPINION

From the backs of football shirts to the front door of the Foreign Office, we have seen speech becoming criminalised. But have those who write laws that make stupidity a crime considered that it could one day be them wearing their own handcuffs?

At the FA Cup final, a man was arrested for wearing a top which read ‘Not Enough – 97’; a reference to the number of people who died in the Hillsborough Disaster.

A few days later, the Conservative MP Bob Stewart was charged with racially-aggravated abuse for an incident which occurred on 14 December 2022. He is alleged to have told an activist to “get stuffed” and “go back to Bahrain”.

It has never been a crime in Britain to have bad taste. If it were, then we would have been relieved of Big Brother years ago. It is also legally permissible to say things rashly and in frustration, provided that what was said is not a specific threat.

Given this, why have the police become involved in these instances?

There is an authoritarian trend emerging from the establishment ‘blob’. It can be seen in the top brass of many police forces, as well as the Government itself. The notion of laissez-faire social regulation seems to have slowly given way to a more paternalistic bent.

This is to say that those creating and enforcing laws feel justified in acting in the promotion of a perceived ‘good’ rather than merely the prevention of the ‘bad’. The wearing of a tasteless football shirt cannot bring any tangible harm to another person. Telling someone to go back to their home country is not the same as the threat of violence of deportation. The police are therefore not preventing harm, but vetting social interactions.

Another recent attempt at this kind of vetting is the notorious Online Safety Bill. The Government feels it necessary to protect the general public from content that is ‘legal, but harmful’. What it fails to appreciate is that the Internet is not a one-way content streaming service, but a real-time facility for communication – the constituent elements of which are the public.

It can be surmised that their intention is to prevent members of the public from communicating with each other in particular ways if it is over the Internet.

Or in a football stadium.

Or a stone’s throw from the home of British democracy.

It is not clear who would genuinely support the notion that more people should have died at Hillsborough. Indeed, it is easily imaginable that walking around wearing such a sentiment on one’s back in the presence of a flock of the Liverpool faithful might attract the physical expression of some ire.

However, the mission statement of the police is not to help people make better choices. That is the job of parents and life coaches. The stated aim of the police is to prevent crimes and apprehend those who do commit them.

Herein lies the issue. In dealing with nebulous terms such as ‘offence’ and ’emotional distress’ without proper definition, the police have, wittingly or not, written themselves a blank cheque to interfere in social matters while their remit is in criminal matters.

Neither Britain nor its Parliament has ever formally decided which legal decisions are a bad idea, or hurtful. Given the plurality of opinion and variety of individual cases, how could it?

Therefore, by some fairly unsubtle semantic footwork, any combination of two scenarios might emerge:

  1. The police themselves decide what is offensive and intervene accordingly;
  2. Formal or informal pressure groups form to force the police to intervene.

One is a police state – the other is mob rule.

It seems that an effective way to ensure neither of these become the case would be for the Government to remove ambiguous terminology from public order laws. The next Prime Minister who wants to ‘get tough on crime’ might be well-served to lessen the scope for interpretation from these laws in relation to seemingly social offences.

The Public Order Act 1986 (POA) makes it illegal for a person to use “threatening, abusive or insulting words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress”.

It has since been broadened to include “racial and religious hatred”, as well as “hatred on the grounds of sexual orientation”.

The individual at the FA cup final was arrested under this law, though it is hard to see which criteria he met. Any distress caused by his distasteful attempt to shock would have been of a general variety – a visceral reaction to a callous approach to a sensitive historical event. It was not, however, directed at any particular person.

So perhaps, then, the issue is not the law, but the culture surrounding its enforcement. Since the deliberately ‘offensive’ 2000s heyday of South Park, Eminem, Little Britain and Frankie Boyle (before he chose mock piety) we seem to have collectively abandoned the argument of ‘if you don’t like it, don’t watch it’.

Maybe this is because things are harder to ignore due to the increase in blaring screens. But maybe it represents a more organic authoritarian shift. It is no longer enough that one does not consume a certain piece of content; no-one else should have to or be able to watch it either.

There are never simple solutions to culture change. The ‘teach them X value in school’ argument rarely forms as much of the antidote as its proponents hope. Instructive and unpragmatic articles demanding we normalise Y’ or ‘stop stigmatising Z’ are even less effective.

One way change could be enacted is through the institutional culture of the police. Guidelines could be given by the Government, through Police Commissioners, to reassess the criteria for arrest. In the cases of Bob Stewart and the individual at the FA Cup, language could be included to ask what real harm has been done.

Hurt feelings cannot be sufficient. Was there a specific victim of what was said, and was the effect it had on them so marked and obvious that the perpetrator must be (at least temporarily) removed from society?

If the fan at the FA Cup found a group of grieving Hillsborough widows and shouted his sentiment in their faces, it is sensible to arrest him. That is clearly harassment.

Wandering around a stadium hoping to get a rise from passers-by, though, does not seem to have the same materiality.

In the latter scenario, those people can exercise their individual right to simply turn away. They equally have the right to peacefully remonstrate with him. One doubts there was any lack of informal recrimination anyway.

Such social forces will always be more effective in shaping action than the snapping of handcuffs.

Enough crimes are committed already in this country; it would be stupid to add stupidity to the mix.

Rory Welsh
Rory founded TDW Consulting Group, a political and communications advisory firm. He previously worked for the Conservative Party, most recently as Jeremy Hunt’s Campaign Manager.


Please enter your comment!
Please enter your name here