The Blog

2020-

2020-12-18 g
THE RIGHT TO OFFEND
“free speech encompasses the right to offend, and indeed to abuse another”
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“Women fighting for their rights against an aggressive LGBT lobby have been silenced for the past three years. I hope this judgment gives them hope.”

Exclusive: People must have the 'right to offend' without facing a police investigation

The judgment could have far-reaching implications for officers seeking to bring charges over people’s opinions

Two judges have struck a blow to enemies of free speech after ruling people should have the right to offend and even abuse each other without facing a police investigation.

Presiding over a Court of Appeal case concerning the misgendering of a trans woman on Twitter, Lord Justice Bean and Mr Justice Warby ruled that “free speech encompasses the right to offend, and indeed to abuse another”, adding: “Freedom only to speak inoffensively is not worth having”.

They said it would be a “serious interference” with the right of free speech if “those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted”.

The judgment could have far-reaching implications for officers seeking to bring charges over people’s opinions - a move that has seen them branded the “thought police” by campaigners for free speech.

It comes after a Freedom of Information request by The Telegraph in February found police in England and Wales had recorded 120,000 “non-crime hate incidents” in the past five years, an average of 66 a day.

The figures emerged after the High Court ruled a police probe into “transphobic” tweets was unlawful after former policeman Harry Miller was contacted by an officer from Humberside Police to “check his thinking”.

In October, police closed an investigation into an interview with David Starkey in which the historian told podcaster Darren Grimes “slavery was not genocide” because “so many damn blacks" survived. Both were questioned by police but the probe was reviewed by a senior Metropolitan Police officer and the case was dropped after further legal advice from the Crown Prosecution Service (CPS).

Thought police cases

Although the latest judgment does not change the law, such an unequivocal ruling from two senior and highly respected members of the judiciary is likely to influence wayward judges in lower courts that freedom of expression must be protected.

It will also limit the vexatious use of legislation to inhibit freedom of speech in a bid to “police” Twitter spats.

Lord Justice Bean is no stranger to controversial and high profile cases having presided over the trial of James Bulger killer Jon Venables in 2010, while leading media judge Mr Justice Warby is presiding over the Duchess of Sussex’s privacy case against the Mail on Sunday, which has been adjourned until next year.

It came after mother of two Kate Scottow, 40, from Hitchin in Herts, was found guilty in February under an obscure part of the Communications Act 2003 following Twitter exchanges with a trans woman who reported her to police when Mrs Scottow called her a “racist”, a “pig in a wig” and referred to her as a man.

Stephanie Hayden, 47, a lawyer from Wembley, London, obtained a gender recognition certificate in 2017 that recognises her as a woman in law.

Ms Hayden reported Mrs Scottow to police in December 2018, with Mrs Scottow consequently being arrested and kept in police custody for 11 hours, away from her then 20-month-old son who was still being breastfed. She also has a daughter who is on the autism spectrum and was aged 10 at the time of her mother’s arrest.

The case attracted worldwide attention, including from Boris Johnson, who said of the case in February 2019: “You can’t police properly if officers are endlessly filling custody suites with mums whose crime is to have caused needless offence on Twitter. Whatever the rights and wrongs of this internet feud, we are wasting too much time and resource on cases like this.”

... "Twitter spats are just not the kind of conduct regulated by the provision the prosecution tried to rely on – that section is directed against heavy-breathers and persistent hoax callers and the like.

"Those who, for whatever reason, are uncomfortable with free speech will still have other legal provisions to resort to. But this judgment removed one particular weapon from their armoury. This is progress, and further good news in light of the Harry Miller judgment."

The Police Federation's Simon Kempton said of investigating Twitter spats: “It’s an area where we would like to avoid having any involvement but there are always cases where individuals cross the line and cause some significant harm to others.” (read more)

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