From Wolf Whistles to debates at Speakers Corner – Why we must fight against the ‘right not to be offended’
In the year 2000, during an interview for a job I was asked the question “What reasons are there for arguing against the implementation of the Human Rights Act?” I assume this was a question intended to be a curve ball to make candidates think on their feet as at that time the Human Rights Act was the Golden Child of New Labour. My answer was simple.
“It will water down the European Convention on Human Rights, and will place non lawyers in the everyday position of interpreting the basic human rights enshrined in the European Convention on Human Rights, which in turn will cause all sorts of weird and wonderful rights to be created while the basic rights will slowly disappear.”
Sadly, nearly 20 years later I am seeing exactly that.
The European Court of Human Rights was set up to interpret and apply the European Convention on Human Rights, it was the last place to bring a challenge to State actions which were alleged to have breached the European Convention on Human Rights. Very few cases made it to this final stage, and the cases which were adjudicated upon were those which had particular significance (in the same vein as the Supreme Court of the USA), and the judges were selected for the expertise and experience of dealing with International and human rights cases. With the implementation of the Human Rights Act 1998, we are now in the position where the local police force, council or magistrates court are making their own determination on all sorts of issues which are banded around as being ‘human rights.
I regularly sit in magistrates courts and hear the Magistrates convict a defendant for something they have said or written, with the Magistrates telling the defendant that their ‘victim’ has the “right not to be offended.” Well No, actually there is no ‘right not to be offended’ nor is there a ‘right not to be upset’ or a ‘right not to have someone voice views which are different to yours’. Likewise, there is a right not to be discriminated against because of your sex or sexual orientation, but there is no right to be given special treatment, such as two work ID cards so that a person can choose every day whether they are identifying as male or female that day. However, all of these seem to have been introduced through Council Officials, police officers and Magistrates Courts. Police arresting a person for postings on social media which have upset another, is now not uncommon, and there is now a suggestion that wolf whistling is a hate crime. But what is not considered in all of this is that the person making the comment or wolf whistling, is exercising their right to freedom of expression. A right which has genuinely existed since the ECHR was introduced in 1950, and which should only be restricted as is necessary in a democratic environment.
The Royal Parks website describes Speakers Corner at Hyde Park as a traditional site for public speeches and debates. In 1872, legislation gave people the right to meet and speak freely in Hyde Park. Yet just this weekend UK Border Force detained 2 people from entering the country on the basis that one of them would debate their right wing views at Speakers Corner, and the other was to be interviewed by someone who the Government has determined is a dangerous right wing hate speech extremist (and whose website the Government can’t manipulate and control).
What was actually meant by UK Border Force was that your views are not what the mainstream Government and liberal police forces want to hear at the moment, and hence we are not going to permit you to exercise your right to freedom of expression. This is a very slippery path for public authorities to be treading. While I do not personally agree with right wing views on most matters, I do believe very strongly in the right to freedom of expression, to hold views which are not populist and which do challenge the Government and Public Authorities. I have worked in countries where people are imprisoned and punished for expressing views which are not the same as the Government, where books are banned and burned. With the loss of the right to freedom of expression comes the loss of lots of other rights – if no one can complain about rights being taken away, what is to prevent other rights being taken away?
It is about time we went back to thinking about the basic human rights, which are there to protect us from State control, not being complicit in creating new rights which have the effect of placing us under more Government and Public Authority control than ever before.
Due to the number of requests I have received for clarification of whether there were direct Twitter messages between Tommy Robinson and the defendant in this case, Mr Osborne, I can update on the actions myself and Mr Stephen Lennon (aka Tommy Robinson) carried out yesterday and the outcome so far.
On Monday, it was reported by the press that the Crown Prosecution Service opening statement to the jury included reference to direct contact between Tommy Robinson and Mr Osborne. The Crown Prosecution Service had not made any contact with Mr Lennon to inform him that he was to be used as part of the prosecution case.
Yesterday morning the reporters who were live reporting from court reported that the court had been told that Tommy Robinson had sent direct messages to Mr Osborne and that these were via twitter. Mr Lennon denies that he sent any direct Twitter messages to Mr Osborne, and I made contact with the Crown Prosecution Service and the Attorney General’s Office to express concerns about what has been reported in the press about Mr Lennon’s involvement with Mr Osborne.
Yesterday afternoon, the reporters in court stated that the prosecutor had clarified with the press that there were no direct Twitter messages between Tommy Robinson and Mr Osborne, and at most Mr Osborne received a generic email sent out to all subscribers to a Rebel TV database.
I am now in the process of ascertaining whether the misrepresentation of the situation was made by the prosecution or the press, this will take some time.
In the meantime, I request that any comments made on social media are mindful of the fact that the trial is continuing. Mr Lennon has no intention of interfering with the administration of justice but clearly he is entitled to correct the inaccurate information reported in the press about him.
Today, a Chelsea FC fan was acquitted in court following a trial for using racially aggravated words at Stamford Bridge. The alleged racially aggravated words?
‘Who’s that team they call the Chelsea?
Who’s that team we all adore
We’re the boys in blue and white
And we’re out to show the World the way to score
Bring on Tottenham or the Arsenal
Bring on scoucers by the score
Barcelona, Real Madrid, Tottenham are a load of yids
And we’re out to show the World the way we score’
The fan was charged with causing Racially Aggravated harassment alarm or distress for singing that song in the Matthew Harding Stand when Chelsea scored, and the Crown Prosecution Service continued with the prosecution despite my legal argument and a dossier of evidence about the use of the word Yid in football and in general, the history of that particular Chelsea chant, and the fact it has been sung by thousands of Chelsea fans week after week and Chelsea FC has never raised its use as an issue. We drew parallels with the Morata chant and the fact Chelsea FC had asked fans to change the wording, something Chelsea had never done with this chant.
The complaint was brought by a Chelsea FC fan who said he overheard my client singing the song, and that he took offence to the use of Yid. However on the day if trial it became apparent that this fan had complained to Chelsea FC and Kick It Out previously and he hadn’t received a response, so he again complained to a manager at Chelsea FC and was given directions on when to make a complaint and how. To paraphrase he was told to wait until this particular match and make a complaint. The Club officer said he would sit in the fan’s seat at this match and make a note if he heard the use of Yid. But in reality what happened was the Club officer made no report himself, the Club made no attempt to address the issue themselves, but they did arrange for the fan who made the complaint to contact the police…..
Fast forward 10 months of distress, criminal trial and suspension from Stamford Bridge for my client, to today when my client was found not guilty. A trial which should never have gone ahead, Chelsea FC could have dealt with the use of Yid in the chant as a club, working with its fans. In reality they chose to use one fan against another, in a case where my client could have ended up with a criminal record.
I don’t blame the fan who made the complaint, he felt aggrieved by the use of Yid in the chant. But sadly this is the face of modern football for many clubs, showing their contempt for the fans and using fans to further the Clubs’ hidden agendas. No doubt if my client had been convicted, Chelsea FC would have put out a statement condemning my client and telling fans that the court has said they can no longer use Yid in the chant. Using the court decision to get around the difficult issue that Chelsea FC doesn’t want to have to address with its fans…. whether to ask fans to change the words of a very traditional chant.
I won’t hold my breath for the Chelsea FC statement congratulating my client on the fact the 10 months of stress that the Club created, is now over.
I have been asked to comment on the Football Lads Association march on 7th October 2017 and what I know about the march. I do not have any information about the FLA march as I am not involved with FLA in any way, however I understand that the aim of the march is that it will be a peaceful meeting of football fans from all over the country who are coming together to show their support in fighting extremism. I am also aware that the necessary official protest arrangements have been made with the Metropolitan Police, and that a route has been mapped out and that all those attending should follow that route so that they stay in accordance with the Metropolitan Police protest permission.
However, what does not seem to be discussed on the forums and social media is the likelihood of intelligence that will be gathered by both the Metropolitan Police and other police forces on those who are attending. This will be treated like any other march where there is a risk of violence and lets face it, a march of thousands of football fans, which also has the potential for anti-fascists and other groups to be present will be perceived as having a risk of violence.
If you are attending the march, expect to be filmed as you exit train and tube stations, you may be pulled over to one side and asked to provide your details and be filmed, just as at football matches. A police officer, after one conversation with a superior can ask that anyone with face coverings remove them. This will apply to any scarves wrapped round faces just as much as those who choose to cover their faces with masks.
The police will have details of those fans who are linked to incidents both in the UK and overseas who have not yet been identified. A large gathering of football fans may provide the opportunity to scan the crowds for any wanted persons.
Essentially, if you are attending the march, be alive to the fact that you will be watched!
Statement from Selachii LLP, Daniel Goodwin and Alison Gurden in relation to the Roy Larner Appreciation Night
Today Alison Gurden has been handed £700 in cash by Mr Daniel Goodwin, during a meeting between them and also Mr Goodwin’s solicitor from Selachii LLP. Alison Gurden has accepted the money on behalf of Roy Larner and will be passing it to him in the next couple of days. This means that in total £2700 has been handed over by Mr Goodwin to Roy Larner.
All the parties would like to clarify that the reason that Alison Gurden did not meet with Mr Goodwin earlier is due to the fact that Selachii LLP made contact with Alison Gurden and that it was requested by Selachii LLP that as they were now representing Mr Goodwin, there should be no more contact between Alison Gurden and Mr Goodwin. Due to the contents of the communications of Selachii LLP to Alison Gurden, there were matters which had to be addressed before a meeting could be arranged. These matters were finally addressed at 17:30 on 18th September 2017, and a meeting was arranged by Alison Gurden on Tuesday 19th September 2017 to take place on 14:30 today.
The breakdown of the costs and receipts for the evening were discussed and Mr Goodwin provided photographs of players which were signed and which were not sold during the Appreciation evening. We have calculated that these are still worthy of sale and the proceeds, if they are sold will amount to around £2000, Mr Goodwin has today handed some of them to Alison Gurden so that she can try to arrange the sale of them and any proceeds of the sale will be passed to Mr Larner. Mr Goodwin is going to endeavour to arrange that the unsigned copies are signed within the next two weeks and he will then pass any additional signed photographs to Alison Gurden to be added to the sale.
Mr Goodwin has been advised by Alison Gurden that he should make no more comment on this event in any format, but Mr Goodwin retracts any comments which have been made which suggest that Alison Gurden did not act appropriately in relation to her dealings with this matter.
There has been a lot of discussion on social media the past few days about the Roy Larner Appreciation Night held on 29th July 2017 and organised by Dan from Lions TV. I can confirm that some of the proceeds of that evening, have been paid to someone to be passed on to Roy. Although I have seen a message on social media stating that Roy will be paid £2700, I can’t comment any further on that at the moment as neither Roy or myself have been told this personally, and so far the amount paid is less than £2700.
I can understand that those who attended the evening and also friends of Roy who did not attend the event are concerned that Roy has not yet received the full proceeds or a breakdown of how the £2700 is calculated. I too am concerned, and rest assured I am looking into this and will do my very best to ensure that Roy receives what is rightfully his.
At the moment I would like to hear from anyone who bought tickets for the event, in particular I would like to know what they thought Roy would receive from the evening, and why they bought a ticket. I would also like to hear from anyone who was successful in their auction bids, what they bid for, how much they paid and whether they paid out that evening. Finally anyone who purchased a signed photograph.
I can be contacted at firstname.lastname@example.org or on 07941 212357, or alternatively via direct message on Twitter @gurdena
Alison Gurden, Barrister for Roy Larner.
Imprisoned for Public Protection (IPP) is just life with parole for many prisoners, but knee jerk reactions to a few press reports is not the solution.
An IPP prisoner is one who the court decided needed to be imprisoned for public protection. Basically a person was given a set prison sentence, for example 3 years, but then on top of that the judge designated them as a danger to the public and that means they can’t be released until it has been decided by the parole board that the prisoner is no longer a risk of harm if released.
The IPP scheme was abolished in 2012, and replaced with a scheme where a prisoner is now given a set sentence, say 3 years, and then (for certain offences) if the judge considers them dangerous, an extended sentence can be imposed, such as another 3 years. Hence, extended term prisoners now have a release date.
Recent press reports about a young man with mental health issues who was given a sentence of less than a year but designated an IPP, and has served many additional years has resulted in mud slinging between the Parole Board, Ministry of Justice, Prisons and prisoners’ families. Whereas on social media, suddenly prison experts seem to have come out of the woodwork..
The reality is that some of the IPP prisoners still incarcerated would be able to walk away from prison if released and live a normal life. Most wouldn’t, the years of incarceration and lack of support from within the prison system means that some who were not really dangerous when they were imprisoned may well have been made dangerous by the state. Many of the current courses offered in prison are run by private companies for profit, they don’t actually benefit the prisoner, there aren’t enough places on the courses, and they often are cancelled or replaced by another bright idea course part way through,
Many IPP prisoners downgraded to open conditions of released on licence are recalled due to minor breaches of their licence as the test for recall is not whether a person is becoming a risk of harm to the public, but rather whether they breach their licence conditions, such as by going to the pub for a pint, getting back late to the hostel. The recall system is part of the IPP problem.
I am a lawyer working in prison law and representing IPP prisoners. Almost all of those I have represented have been released, those who haven’t been released have (with the exception of 2) been downgraded in category. The 2 who have not been downgraded are preparing for a further hearing to determine whether they can be released.
I’d like to say my clients have been released due to me having fantastic advocacy skills, but that’s simply not true. The secret to release for an IPP prisoner is preparation for the parole hearing. Not just taking the courses etc which the Ministry of Justice seems to think will all of a sudden make someone no longer dangerous. A full package of information on the prisoner, an independent psychiatric report, evidence from family and friends about how they will support the prisoner on release, evidence the prisoner has thought realistically about their future such as the type of work they are going to be able to undertake and where they will live. These have to be realistic, for example, it is pointless for a sex offender to suggest they are going to set up their own tattoo business – no parole board is going to release a prisoner sentenced for serious sex offences, so that they can spend their days touching the skin of semi clad women.
The parole board will provide a package for the prisoner prior to their hearing, but it’s very one sided, reports from the prison, reports from probation (often from a probation office who doesn’t know the prisoner and has spent no more than an hour interviewing them over a video link). For some reason the parole board members often seem to take more notice of the views of this probation officer who doesn’t know the prisoner, than a prison officer who has observed them on a daily basis.
In the USA I work with youths who were given life without parole but who now have a chance of a rehearing. I also prepare for clemency hearings for death row prisoners, the last ditch attempt to persuade a State Governor not to execute a prisoner. For both of these types of case I work with a mitigation expert who is appointed for the prisoner. We prepare a package of information which is not state biased and which gives another angle or perspective to the prisoners life.
Just as in my criminal defence work when I question why anyone suspected or charged with an offence would rely on the police to investigate their defence, I question why any prisoner will just rely on the reports prepared by the prison & probation (both Government underfunded and controlled by targets which the prisoner knows nothing about).
A few weeks ago I read an email from a lawyer to a young defendant’s mother in which the lawyer told the mother that probation had prepared a pre sentence report, they felt there was no need for an expert report so the lawyer wasn’t going to ask for one. The probation officer had spent 30 minutes on a video link with the defendant to prepare the presentence report, had not identified the youth’s mental health issues or learning difficulties. The youth was given an extended sentence on the say so of a private company employed probation officer who had no experience of dealing with youth defendants, and had only been a probation officer for less than a year, and on their own admission was told by their bosses they could spend no more than an hour on each pre sentence report they prepared.
As lawyers we can do more to assist our IPP clients. As always, funding is an issue for many lawyers acting for prisoners, only a few law firms now have a prison law contract as the LAA actively encouraged firms not to apply for a prison law contract. Just travel costs alone to visit a prisoner can be extremely expensive, most IPP prisoners are housed in prisons in the middle of nowhere with no public transport links. A return train to the closest station and taxi from the station can often amount to more than £100 from London so it is very difficult to take on IPP cases pro bono. However in all of my cases I have found a solution, a solicitor who has hounded the LAA until they agree to fund an expert report, a family which manages to fund my travel to prison, a PhD candidate who is funded by their university and is prepared to assist with assessing my client, a charity which has gained access to a prison to offer a particular course.
Just arguing the IPP prisoners should be released is not the answer, each prisoner is different, and each case should be taken on its merits. I question whether the Parole Board should be left with responsibility for trying to resolve the mess the Ministry of Justice has created by its dithering. If the parole board focuses on IPP prisoners, this will create a backlog of other prisoners awaiting a parole board hearing. The current backlogs of over 2 years in many cases is already unacceptable. Although it should be said, a lot of the backlog is not only due to the parole board, but often due to the prison or probation not providing reports on time or not turning up to hearings.
A solution would be to have a panel of High Court judges with criminal law experience, conducting a release hearing. The judge could sit with a parole board member and hear evidence much like in a parole hearing, but unlike a parole board, they could have power to replace the IPP with an extended term (if release was not deemed appropriate). All IPP prisoners should get the equivalent of a pre trial review court hearing automatically, this hearing in front of the judge could be used to set a timetable for reports and other evidence, list the evidence etc which the judge requires, and set a date for the full hearing. Judges should have the authority to approve funding for lawyers and experts. In essence a court appointed lawyer & court appointed expert.
We could learn a lot from the USA. Within months of the Supreme Court ruling that Life Without Parole for youths was unconstitutional, the first cases were back in court, unlike the Ministry of Justice dithering while dishing out sound bites, which does nothing more than show that it is out of its depth in dealing with this issue.