Home > Law > Why Labour should support the CPS, not Nick Cohen, on hate speech

Why Labour should support the CPS, not Nick Cohen, on hate speech

In the Spectator Nick Cohen has joined the liberal condemnation of the Liam Stacey prosecution:

This morning Swansea magistrates jailed a 21-year-old student called Liam Stacey for eight weeks for posting racially offensive comments on Twitter about Fabrice Muamba…….. I’ve no doubt that he’s a vile man, who by the sound of it was drunk at the time he posted, but what remains disturbing about the case is that the Crown offered no evidence that Stacey had incited racial violence or any other crime. That his speech was racist was enough to send him down. This verdict, like so many others, shows how little confidence the judiciary has in wider society.

This is poor stuff. 

Cohen doesn’t seem to realise that when someone pleads guilty to a charge, the Crown Prosecution Service doesn’t even get the opportunity to offer evidence (except in the case of a Newton hearing).  Nor does he seem to have noticed that the Stacey case was head by a District Judge, not by magistrates.

The main failure, though, is Cohen’s inability to distinguish between the bringing of the charge and the hearing of the charge. 

The judiciary is bound to hear whatever case is brought before it, and while the sentence was certainly on the stiff side, it certainly wasn’t outside sentencing parameters.

But, as I set out here, the main issue with this case was not how it was heard, but why the CPS brought it.  In particular, I questioned why the public interest test now seemed to include consideration of the media profile of the case. rather than on the actual content of the offence. 

As it happens, the CPS appear to asking the same question of itself.  On Wednesday, the CPS’s issued what looks like a carefully considered press release about the views of its lead sports prosecutor, who appears to be making a clear reference to the Stacey case:

Harassment through social media is covered by existing legislation, such as the Misuse of Communications Act, and we have already seen successful prosecutions in this area. Where the abuse is racist, we can bring that to the attention of the court as an aggravating feature.

This is an area where I would suggest education, both of what not to do and of how easy it is to detect and prosecute these offences, might prevent the criminalisation of otherwise decent people, but I should stress I would never condone the misuse of social media to commit what would be a hate crime if said face to face.

He goes on to say that such matters might be better dealt with by the “sports authorities”, though here he is referring more to racist chanting at game, for example.  Even so, the general tenor of the press release suggests that the CPS is open to hate speech, whether in person or through social media, being tackled by civil society rather than through the courts.

This appears to be a step in the right direction, and it fits neatly with one of the “factors tending against prosecution” set out in the CPS’s Public Interest Test Code, in cases where:

The seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies.

More importantly, it fits with the overriding principle, set out by the Attorney General in 1951 and highlighted in the Code , that:

 It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution.

The left, and Labour in particular, should show some maturity by welcoming this intervention from the CPS, rather than simply indulging in Cohen-style “The law is an ass” rants.  That won’t get us very far, whereas actually taking time to understand the legal process, the best point to apply pressure to it, might.

Labour has a poor track record and reputation on civil liberties and free speech, precisely because it failed during its last term of office to look at what the consequences of its legislation might be for the legal process as a whole.  This is one way to display a new maturity when it comes to law and order.

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Categories: Law
  1. March 31, 2012 at 6:23 pm

    Cohen’s example, from JS MIll, as regard what is a viable constriction of freedom of speech, is particularly enlightening, and I feel compelled to reply with Lenin’s oft quoted maxim, “Freedom for whom, to do what?” It seems that Mill, Cohen and liberals generally are happy that things can be said only if the saying can be deprived of its effects – whether criminal or revolutionary (which in their eyes are the same, as the latter can be reduced to the former).

    Thinking things through, however, what does it matter that this guy was prosecuted? Cohen is pandering to the preconceived tropes of the Right – nanny state etc. It is the sort of narrative which we shouldn’t get involved in at all. What is the need for debate? Who is the debate to be with? Defending Labour on civil rights? That won’t matter so long as the Right control the Party, which they do for the foreseeable future; they can cock things up even if they are whiter-than-white there.

    Your last article had me scratching my head; the call to “mature debate” struck me as being a little too close to the COML and its luvvy-orientated gathering of media folks, higher ranking (or at least Westminster-focused) politicos and other worthies. We- socialists – have no allies amongst that crowd. Our allies are the people we seek to speak to – and the only freedom of speech that matters is surely our freedom to convey our message to them, that now is the time to fight back. We have that for now, no credit to the CPS.

  2. paulinlancs
    April 1, 2012 at 10:53 am

    Interesting note on Cohen’s use of JS Mill. tbh I didn’t take much notice of it – it just looked like another example of a mainstream media type doing a join-the-dots article, quoting someone famous in order to look knowledgeable, but unconnected to the matter at hand.

    You say: “Your last article [I'm guessing you mean "paragraph" here] had me scratching my head; the call to “mature debate” struck me as being a little too close to the COML and its luvvy-orientated gathering of media folks, higher ranking (or at least Westminster-focused) politicos and other worthies.”

    Hah, I had to scratch my head for a minute on COML, then remembered what it meant. It is a bit in the mists of time. Yes though, it’s a fair point, and I should/could really have filled out a bit what I had in mind here (always the problem with trying to make thinjs short enough for people to want to read). In my mind’s eye, though, the kind of mature debate I had in mind was something along the lines of the monthly LRC resolution, which LRC members put into their branch/CLP meeting for discussion resolution.

    Such a resolution might look something like: “That this branch deplores the way in which the CPS Public Interest Test is currently implemented in ways which are weighted against those without power and resources.” The exact wording matters less than the fostering of grassroots debate about how the legal system operates, such that (to take a recent example), a 21 year old gets 56 days for racist abuse, while the CPS (to date, nothwithstanding Paul Lewis’s efforts) declines to prosecute a police officer for a racist attack on a “suspect” during the riots; this is, of course, outwith the Public Interest Test code, which lays particular emphasis in favour of prosecution in instances where the offender is someone in authority and abusing their power. This shows up the way in which the legal system is weighted towards power while supposedly being weighted against it.

    Does this mean that the right will no longer control the Labour party, which is your pre-requisite for proper change? Of course not in itself, but political education of this sort is surely a step towards that control, especially as it’s an area in which the discourse is totally dominated by the right (the left tend to shy away from the principles of law and order). Of course, I accept that opening up this kind of debate at grassroots is only valid if there is a real chance of taking control at a wider level, but that is where we differ more generally.

  3. April 1, 2012 at 12:41 pm

    If the legal system is weighted towards power, behind what it tells us about itself, then surely that is a more important debate that limiting any such resolution specifically about the CPS Public Interest Test? The reason being, the conclusions that flow from such a debate are enormous, because you have to ask why the system is weighted in that way, and you’d have to adduce a great deal more evidence than the test to prove your case (which I agree with). It is my view that revolutionary conclusions ultimately flow from this wider discussion, which can be obscured by the more limited discussion.

    When I hear words like “mature” it triggers alarm bells in my head, as the maturity of statesmen is a liberal trope often compared to the demagoguery of revolutionaries, and in reality it is simple code for siding against the “immature” (substitute also “uneducated, ill-informed”) rabble. The Decent Left against the anti-war Left. And so on. If we present our conclusions most openly – that we believe in equal access to justice – the practical measures needed to ensure that are not going to sound mature. They are going to sound extreme. They are going to be castigated by the Hang ‘em and Flog ‘em brigade.

    So my personal preference is that I would rather not bother competing for terms like mature. The people we aim to convince don’t care if we seem mature, they simply care if we’re on their side. Which we – you and I – are. So my issue here is more of style than substance – but it’s with one eye on the style influencing the substance somewhere down the road.

    On a wider note, as my hands-on involvement with socialist and union activism has increased, my acceptance of some abstract right to freedom of speech has diminished (which partly explains why I’m so blasé about this guy). Do I want our state, as it stands, enforcing limits to what can be said? No – but the only people I’m prepared to defend on the subject are people arrested for saying things I agree with. The liberal commentariat are just as selective; there was a much more muted hue and cry when those Muslims were arrested for burning poppies etc.

    I also don’t buy the argument that if we don’t defend all infractions of the right to speak as one will, we risk an ever more confident state coming after us, having dealt with everyone else already. That’s nonsense, firstly because, as noted in the JS Mill quotation and my example of the protesting Muslims, the potential allies in that scenario are tendentious and not allies at all, or allies when it suits them. The recent attempt by the Labour bureaucracy of UNISON to keep Glenn Kelly and the others out of the union are such an example. So long as we look after our own, and put down our socialist roots, we having nothing to fear.

    I don’t agree with racism, and do not want to be associated with defending racists. On the other hand, Edward Woollard’s ridiculous sentence because of throwing that fire extinguisher off the roof was preposterous and became the symbol for the police crackdown on protests – e.g. the two hundred people arrested as a result of that protest, or before that, the people arrest for daring to damage the car carrying Charles and Camilla and so on. There are clear differences here, which revolve around political principle and not abstract rights.

    This is not aimed at your post, I had just been mulling such thoughts for a while and thought this an opportune place to share.

  1. June 26, 2012 at 10:54 am
  2. October 16, 2012 at 11:47 pm

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