In a recent article, I mentioned the arrest of Thomas Moffit, the activist known as “Young bob” on the 24th October. Moffit was reportedly arrested for using a racial slur P*k*.[1] Reports suggest that the police office involved stated that Moffit was arrested under Section 19 of the Public Order Act, 1986.
The arrest has proved controversial. I’ve noted that some commentators have argued that the term should not in and of itself be treated as offensive. However the wider debate includes the following three questions. First was an actual offence committed? Second, should an arrest have taken place in the first place, third should the specific offence covered be a criminal offence in the first place.
Let’s take them in turn.
- Did an offence take place
This is not easy to answer. We should not assume that an offence was committed because there was an arrest nor that it was not because no further action was taken. Police and the CPS may choose not to pursue a case if there isn’t a public interest or if there remains a lack of sufficient evidence to proceed/ Meanwhile arrest is based on legitimate suspicion, it does not amount to confirmation that the offence has taken place.
There are further complications. First, identifying what the perceived offence was. Section 19 says:
“19 Publishing or distributing written material
(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if—
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby
Note that this relates to written communication. It is possible that if the incident was videoed and uploaded to the internet by Moffit, this might count as publishing and if the video included captions or a transcript that this became “written. However, note that Section 21 might provide a better fit as it specifically related to the production and display of visual images. So, it is possible that the police officer cited the wrong section of the Act, an easy mistake to make on the spot.
However, there are further questions to consider. Did Moffit intend to “stir up racial hatred” and was that likely to happen. So I’ve seen some social media arguments to the affect that Moffit was not seeking to insult the woman involved but rather engaged in a debate (reported by some as “heated”) over use of racist language and he was seeking to debate whether or not the term was racist or just a shortened form of Pakistani. We lack information on what the build up was to the use of the word. Did he introduce it as an example, did she suggest it, or whas he being accused of previously using it himself?
Then there is the question as to how a court might interpret all of the evidence in the light of what the law says. It is arguable that he was engaging in debate, using the word as an example. Context matters though. First of all, a heated debate is different to a more formal exchange. Another consideration would be whether use of the language might form part of a pattern whereby language and stereotypes are being normalised in public discourse. Within a context where people from ethnic groups are being described as “an invasion” and presented as a threat and where a word might itself be used in contexts such as “P*k^ rape gangs”, then I can envisage a situation where a court might interpret the overall intent and potential impact as liable to incite racial hatred and potential violence. However, to be sure, I think we would need to see such an interpretation tested in court.
- Should the police have arrested Moffit?
This is a further potential area of dispute. An arrest needs to be justified as necessary either to enable investigation, prevent removal of evidence or reduce the risk of oingoing and repeat offending. It is arguable that the online evidence could have been examined an dpeople interviewed without the police needing to affect an arrest. However, there are two clues as to why the police may have determined that it was necessary. First, that it seems to have happened whilst the specific demonstration was continuing. Secondly, that Moffit reports that his bail terms included a ban on his further involvement in Gen Z demonstrations whilst under bail. This may point to concerns that there was a risk that he might continue to offend or re-offend. That the police may have believed those risks does not mean that the arrest was automatically justified and it still could be challenged, however I can see a case for the arrest being made.
- Should the offence(s) exist in the first place?
This gets to the heart of the wider debate framed as “so you can get arrested for just using a word these days”. That clearly is not the case, context and usage matters. However, there is a free speech debate here. To what extent can and should language be controlled.
I note first that the legislation explicitly dealing with incitement to racism is not some recent example of “woke progressivism” but dates back 40 years and was introduced under Margaret Thatcher’s government.
Further, whilst there is a strong tradition of freedom of speech in the UK, I don’t think we should assume that this is a general permission to say and do whatever we want. There have always been reasonable constraints on free speech. I cannot conspire, incite, threaten or defame. There are of course different levels of burden of proof and unlawfulness with the latter example being a matter of civil law under a balance of probabilities rather than criminal law requiring “beyond reasonable doubt”.
In my opinion, the provisions provided within the Act are reasonable but require care in their implementation.
Conclusion
Whatever our opinions on this specific case and on the extent to which particular forms of speech should or should not be criminalised, I believe we can remain clear on one crucial point. As Christians we should have a clear position on the morality of specific racial slurs. We might be concerned for specific people and their rights but that does not justify either the use or defence of racial slurs.
[1] I’m suing the convention of asterixis replacing letters to indicate what the word is whilst recognising the potential offensive nature of the word.
