Tommy Robinson has been freed. I have not previously blogged on this subject, despite drafting several paragraphs, largely because it was abundantly clear to me that the facts were far from clear. However, as is often the case with Tommy Robinson,  for many people, their minds were made up long before all the facts were in.

One of the most notable examples of this was The Secret Barrister. This is a blog that I wholeheartedly encourage everyone to follow and read regularly, as it provides excellent insights into many legal issues. However, the author is quite clearly a left-leaning liberal, and on this occasion allowed their prejudice to significantly colour their commentary of the case. To their credit, they admitted as much in their subsequent review of the appeal

To Quote The Secret Barrister:

“So I hold my hands up – imperfect information makes for imperfect predictions. But is there a wider issue here, among me and other legal commentators? Were we too quick to dismiss the case with a “nothing to see here” wave of the hand, blinded by the unappealing nature of Robinson’s supporters and the organised maelstrom of fake news stirred up here and abroad? Maybe we were. Maybe we could have – should have – cleared our ears and browsers of the white (pride) noise and paid greater heed to the arguments of due process. Maybe a little more humility is required in these difficult cases. I am normally conscious in all legal blogging to couch in terms of conditionals – if this report is accurate, then the explanation might be X. Was I too quick to assume, wrongly, that the judge had acted correctly?

I think I may have been.”

I am genuinely heart-warmed at the fullness and frankness of this admission by The Secret Barrister. It is rare, if ever, to see someone comprehensively hold up their hands and say that their own prejudice influenced their thinking. We need more of this.

To cover, what, for me, seems the most notable aspect, it was reported at the time that Robinson had pleaded guilty. This was not the case. In the judgement the shocking (to me at least) revelation is that Robinson was given no opportunity to plead.

“The particulars of the contempt were not put to the appellant and the appellant was not
given the opportunity to admit or deny the contempt.”

Part of the issue with Robinson not pleading was that it was not actually made clear exactly what Robinson would have been pleading guilty to. Exactly what aspect of his actions constituted contempt was not properly defined or argued.

Essentially, the Judge used summary powers to put Robinson behind bars for 13 months.

And not just any 13 months. As Robinson makes clear in this interview following his release, he was held, for the most part, in solitary confinement for his own protection because of his reputation meaning he was so high risk for suffering attack while in prison.

That is, surely, by any measure, an incredibly harsh sentence. Solitary confinement for any significant length of time is something close to a form of psychological torture, and normally used only for the most serious and violent offenders for short stretches of time. For 13 months of solitary confinement to be handed down as a summary sentence by a judge seems quite incredible.

It is true that Judges have summary powers in order to maintain control of a court room, however, that is the reason why the judge has those powers: To maintain the smooth and regular running of the court room. They primarily exist so that judges can administer a quick firm “slap” to those who might otherwise disrupt their courtroom proceedings.

Serious crimes resulting in serious punishment should be appropriately tried by jury. The accused has the right to know exactly what they are being charged with, and the chance to plead. This seems basic stuff does it not?

So the question is why? Why were the mechanisms of state so quick to put Robinson behind bars and trample over some pretty basic aspects of due process along the way?

The real, underpinning reason, it seems to me, is that, at this point, in any political dispute, the fall-back legal position is the “Police And Criminal Evidence Act 1984”. (Commonly known as PACE.) and it’s catch-all term “Breach of the Peace”.

Interestingly, it was on these grounds that Tommy Robinson was originally detained when outside Leeds court.

The powers of arrest granted to a police officer in this scenario are extraordinarily broad. Essentially, they allow for someone’s arrest if their presence puts someone at risk of harm, even if it is themselves.

An example of the flaw in this occurred with Canadian reporter Lauren Southern in Luton earlier this year. Watch the video here. In essence, what occurred was this: Southern had noted that there were numerous articles in the progressive media claiming that Jesus was gay. Southern cited one in particular here. Southern pointed out, quite reasonably, there seemed to be an odd double standard here, because while journalists could speculate about the sexuality of Jesus Christ with nothing more than a murmur of dissent, and quite a lot of approval, it didn’t seem the same would likely be true of other religions, particularly Islam.

To prove her point, Southern set up a stall in Luton (a predominantly Muslim area) with literature asserting a pro-LGBT view of Islam. The conservative Muslims on the street quickly became angry and the police arrived. Southern was threatened with arrest.

While the police officer refrains from being explicit about his concern, it’s pretty obvious from the video what is being implied: Southern’s literature and presence was making the Muslims angry, and the police officer was worried they would turn violent against Southern, or against property in the area, rioting etc.

For that reason, he ask Southern to desist. There was no sense in which Southern was herself being accused of being violent, or inciting violence towards Muslims, but rather her speech may have incited violence towards herself and that was sufficient reason for the police to invoke PACE and threaten her with arrest.

This had a subsequent backlash. Southern was later banned from entering the UK, and, in fact, she was held under the Terrorism Act at Calais, as she relates here. (Go to 4min 40 seconds in the video for her speech).

Notice the subtle shift here? Having been identified as a “troublemaker” in the sense that she might disturb the peace, (because others might react violently to it), the accusation becomes that she is herself violent or inciting violence, even though there was no real evidence to this effect.

Here is the problem: An overworked, under-resourced police officer is only really concerned with one thing: Having a quiet day. If it’s a choice between infringing someone’s free speech rights, and having a quiet shift where no-one get’s stabbed, we can hardly blame the average bobby for choosing the former every time.

In the society that existed in Britain in the 20th century, that was probably quite reasonable. The reality was that there was a wide consensus of what was appropriate, and, frankly, anyone saying anything inflammatory enough on a street to trigger a real threat of riot must have been saying something pretty outlandish.

Unfortunately, that consensus is falling away rapidly. In areas of the country where there are sizable communities with significantly conflicting values and beliefs, what PACE essentially causes police officers to do is to stifle free speech in the public forum. In each individual case, it’s quite understandable why a police officer might choose to do this. I don’t doubt that the police officer  who told Southern to desist was genuinely worried that he might end up with stabbing or riot on his hands. Of course, to defend the freedom of speech he would need A) the bravery to protect Southern from the angry mob and B) the support of several hundred other officers to do so.

In reality, even if he had (A), he certainly didn’t have (B) and had no other real options but to shut Southern down. The problem is that this becomes a habitual response. The result is a cumulative suppression of public free speech, and, if the aim of the police remains primarily the maintenance of “the peace”, they will tend to favour suppressing the more peaceful faction, because that’s the easier option.

In other words, mob-rule wins. The most threatening, most violent group gets their way by virtue of intimidating the police into using “breach of the peace” as a reason to silence anyone who says anything that the angry threatening group don’t like.

As this plays out over and over again at the level of individual street incidents, it starts to become increasingly the culture of the authorities as a whole.

For another example, see this video of street preacher David Lynn. At 1hour 4minutes in the video he makes a few comments about the last days alluding to 2 Timothy 3v1-4 and Romans 1v26 . Some brief references to homosexuality resulted in causing significant amounts of anger towards Lynn which unfolded over the next few minutes.

Subsequently, while Lynn was packing up, the police arrived. You can watch what unfolded here. In the end, Lynn is arrested and taken away in the back of a police van. The sight of a man being pushed into a police van while declaring “Jesus is Lord” should surely be deeply disturbing in a nation with an established Christian church, but seems to raise hardly a ripple of dissent. It’s unclear how anything he said or did constituted a criminal offence, except in so far as it “disturbed the peace” which, it seems, is the key concern of police.

One particularly interesting aspect is that the police were keen to have his details. I suspect the reason why Lynn was reluctant to give them was that as a foreign national, much like Lauren Southern, it would be a very “simple” option for the police to simply ban him from re-entry to the UK.

The pattern repeats over and over again. Prior to his last arrest, Robinson had been due to conduct an interview with Brittany Pettibone, an American reporter. Her boyfriend Martin Sellner had been due to speak in London. Video regarding their story here They were held in custody for 2 days before before ejected from the UK, for the reasons given here:

Pettibonedoc

Now, at best, the reasons would only seem to justify excluding Sellner from the UK, not Pettibone, but the letter is flawed at nearly every turn.

First, the letter references Tommy Robinson as “A far right leader whose materials and speeches incite racial hatred”. Now, the fact is, Robinson has no convictions for this. His charge sheet is long and undistinguished, and includes assault and mortgage fraud, but, actually he has no convictions for “racial hatred”.  Even if you think this to be plausibly true, it’s not a legally proven fact.

The second reference for why they are not allowed into the UK is that Sellner is associated with an organisation Generation Identity. It is interesting that even the letter itself only claims this to be “Right Wing”, not “far Right Wing”. So are we to take it that being even “Right wing” makes you undesirable in the UK? Generation identity is not a proscribed organisation in the UK, and its website repeatedly and explicitly states it is committed to non-violence, so again, it’s unclear why this would be grounds for exclusion anymore than being a member of the boy scouts.

The next reference for why they were not allowed to enter the UK is “”leaflets with scenarios regarding possible violence”. This is very odd wording.  Sounds pretty sinister doesn’t it? Presumably the leaflet laid out battle plans for attacking the opposition or something pretty damning? Weell…not exactly. Are you ready to see the shocking leaflet that got Martin Sellner and Brittany Pettibone banned from the UK? Here it is:

generationidentityleaflet

So there it is: The “scenarios of possible violence” are specifically about not being violent!!

What about the inflammatory interview with Robinson? Well, Pettibone subsequently interviewed Robinson in Austria. Judge for yourself whether it was hateful. Disturbing if what Robinson says is true, but, hate inspiring? Surely not.

What the leaflet possibly does tacitly admit is that others who oppose Sellner may react violently. In other words, the leaflet is mindful that “Antifa” may respond aggressively to them.

And that, is, I think the real reason for Pettibone and Sellner’s exclusion. The authorities simply don’t want to risk the reaction from the other side. The police do not wish to police it, or do not have the resources to do so.

Which takes us back to Robinson. Much of what Robinson says and does is unlikely to be illegal by any reasonable measure but is likely to be inflammatory. What the Southern, Sellner and Pettibone incidents shows us is that, where possible, the police would rather not deal with the grief, and simply not have such people in the country. Of course, as a British citizen, that’s not an option for how to deal with Robinson.

So judge for yourself, if, the way the authorities deal with Robinson is really to do with criminal justice, or more to do with maintaining “The Queen’s Peace” when it is potentially disturbed by a man they can’t just eject from the country and don’t really know how to handle.

You don’t need to like or agree with Tommy Robinson, or Southern or Pettibone to see that what is going on here is a sign of a society which is not at peace with itself. Whether it’s the religious divides, the left/right political divide, or the remain/leave EU divide, the UK is becoming ever more divided.

Are Robinson, Pettibone, Southern et al  causing the division? Or are they merely shining a spotlight on it? Do we think that if we don’t shine the spotlight on it then it will just go away?

Essentially, we are papering over the cracks of ever deepening ideological divide by clamping down on free speech. The fear is that even relatively mildly inflammatory speech may trigger violent reactions which the authorities have neither the will nor the capacity to control. So ever-more mild expressions of “non-mainstream” speech are becoming taboo. Street preachers get taken away in police vans. This is not the Britain I know and love.

While it is understandable why the authorities are dealing with things in this manner, this is not ultimately sustainable. The cracks are getting wider. They cannot be papered over forever. Something will have to give. It looks like what is giving way fastest is freedom of speech. This does not bode well for our future.

 

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