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Artillery Row

War on words

A recent court case could give free speech advocates some serious leverage against the government

Legal judgments don’t make for exciting reading at the best of times, and the reasoning of the European Court of Human Rights in Strasbourg can be drier and more denatured than most. This is probably why no-one bothered to report that the UK lost a rather important free speech case in Strasbourg on Tuesday. This was despite the fact that the loss was by unanimous vote (including the UK judge, the excellent Sir Tim Eicke), the case was quite a big one, and the result could give the Free Speech Union and other free speech organisations some serious leverage against the government.

Since the European Convention on Human Rights is for the most part of doubtful value, and certainly rather a broken reed on free speech (owing to the number of restrictions cautiously ringing it), it is worth going into a bit of detail on the case.

Rita Pal is an ex-NHS psychiatrist, activist and journalist writing mainly on medical matters for the leftish press, such as the Huffington Post; for a time she also ran her own online paper, the World Medical Times. About ten years ago she had an argument with barrister and ex-journalist Andrew Bousfield, a supporter of Patients First (another NHS pressure group) and sometime Private Eye stringer who on occasion questioned her accuracy and objectivity.

Her arrest itself had had a chilling effect on her freedom of speech

The result was a bitter e-mail exchange. Bousfield went to the police alleging harassment, and in 2011 the Met sent Pal a so-called “prevention of harassment letter”, essentially putting her on notice of that complaint. Three years later Pal wrote an article attacking Bousfield’s competence and followed it with a number of vitriolic tweets which, while not naming Bousfield, could be read as referring to him. On this occasion the Met had had enough. It sent two officers to Pal’s house in Sutton Coldfield, arrested and handcuffed her, drove her to London and interviewed her for some hours before charging her with harassment and releasing her on bail on condition she wrote nothing referring to Bousfield. Eight months later the CPS dropped the case, on the grounds that Pal had said nothing not protected under Article 10 (the free speech provision) of the ECHR.

Pal tried suing the Met for wrongful arrest but failed. She then went to Strasbourg, saying that even though the actual charges had been dropped, her arrest itself had had a chilling effect on her freedom of speech. Here she succeeded. In the absence of clear evidence that the Met had thought seriously about protecting Pal’s freedom of speech, they had no business arresting her in such a way as would clearly discourage her from exercising her speech rights.

Law professors will doubtless write reams about this, and we can safely leave them to it. In plain English this case has three vital implications.

First, it allows not only journalists but the rest of us to write more readily and breathe more easily. For a long time it has been too easy for the police to silence almost anyone with awkward views (such as those expressing anything less than compliments about trans activists, gays or Islamist proselytisers) by a simple threat that they can’t be expected to debate high-falutin’ freedom of speech issues, and that unless the offenders shut up, they have the right to arrest them and confiscate their computers. The implicit menace is that this will be punishment enough, even if the detainees are not finally charged or fined, and that there will be nothing they can do about it. This avenue now seems closed off: a simple murmur of “human rights” may well do the trick, since the police are terrified of any charge that they might be infringing on these.

The odds have been stacked against free speech at the police level

Secondly, it may now be difficult for government to resist pressure to issue guidance to police forces on other interferences. We don’t yet know the result of Harry Miller’s claim against the College of Policing, for example, regarding the police’s heavy-handed house visit to “check his thinking” after he liked a supposedly transphobic Tweet; but this may now be overtaken anyway. Although the government has so far taken the line that the police are entitled to note what people have said as part of their general record-keeping activities, and to visit them to warn them that others don’t like what they say, the Treasury Solicitor may well suggest that this now carries too much risk of an adverse human rights finding.

Thirdly, the days of the non-crime hate incident may now be numbered. This, readers may remember, refers to the practice of the police in recording against a person’s name anything said by that person if anyone else perceives it as motivated by hate, without ever asking whether this characterisation is actually plausible. The Free Speech Union and others have campaigned against this for some time, thus far with no noticeable commitment from the government. But since recording such incidents can cause real harms (if it appears on an enhanced CRB check, for example, it may prevent a person gaining employment in a sensitive field), one suspects the government may feel itself on thin legal ice in preserving the system.

Up until now, thanks to repeated mantras against hate speech and diminishing conviction that “words harm less than blows”, the odds have been stacked against free speech at the police level. A noxious combination of government anxious to be seen doing something, and police forces with boxes to tick and with importunate complainants to get off their backs, has seen to that. Now the police have every excuse, and indeed should receive strong encouragement, to treat as they once did in the past importunate complainants demanding action on statements that make people feel uncomfortable. Save in the most egregious cases, the police need simply express sympathy with the victim but politely say they cannot get involved in an argument about words. Let them save their time and energy for real crimes.

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