The performances by punk-rap duo Bob Vylan and incendiary Irish band Kneecap have provoked outrage across the political spectrum and prompted an expression of regret from the BBC.
Avon and Somerset Police announced on Monday that it would now formally investigate the performances to see whether they had crossed the threshold into potential criminal offences, including those relating to “hate crime”.
It is an epochal source of friction which has even crossed the Atlantic, with Trump administration figures led by Vice President JD Vance accusing Britain of perpetuating “infringements on free speech”.
In effect, “hate crime” in the UK is seen by the law as a serious aggravating factor across multiple offences where the perpetrator can be shown to have been motivated by hostilities including race, religion, disability or sexual identity or orientation.
Since 1998, this has been formally incorporated into British law under the Human Rights Act, which states that “everyone has the right to freedom of expression”. Crucially, however, it is not an unrestricted right and is bookmarked in law by a series of caveats allowing restrictions or penalties to be imposed to protect factors or principles including public safety, “health or morals”, national security and “the reputation or rights of others”.
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Every territorial police force in Britain now has a unit or team of officers dedicated to sifting through reports or complaints of unlawful speech, the vast majority of it on social media.
It is here where many, including police officers themselves, say the job becomes increasingly difficult. In order to decide whether an offence has been committed either online or offline, police and prosecutors have to navigate a cat’s cradle of legislation, including but not limited to four overlapping laws.
Steve Kuncewicz, an expert on freedom of expression and head of media law at Manchester law firm Glaisyers, said: “The answer to the question of how police and prosecutors assess offences of this nature is ‘very carefully’. Much of this legislation is old law which is being applied to new tech.
One officer involved in hate speech assessments put it more bluntly: “It really is the stuff of nightmares. Everyone has their own idea of what constitutes something that is offensive or disgusting to say. But that is very different from it being a crime, and we have to navigate that.”
How much time are police spending investigating “hate crime” offences?
According to police custody records, officers across Britain are currently making more than 30 arrests a day for suspected offences under the Communications Act and the Malicious Communications Act – amounting to some 12,000 arrests a year on suspicion of sending messages which cause “annoyance”, “inconvenience” or “anxiety” to others via post, email or social media.
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At the same time, the annual rate of convictions for offences under these laws has fallen dramatically, from just under 2,000 in 2015 to 1,119 in 2023 – a drop of almost half. Under guidance issued by Sir Keir Starmer when he was director of public prosecutions, the CPS can only bring cases concerning freedom of expression on social media in “very limited circumstances”.
Perhaps the most controversial “hate crime” incident of recent times has been the conviction of the former Northampton childminder for a 51-word online post in the wake of the Southport killings last year.
The material was viewed 310,000 times before she deleted the tweet after three and a half hours.
Her case has galvanised, and indeed further polarised, opinion about hate speech and the way in which it is punished. Nigel Farage, the Reform UK leader, has said that while Connolly’s words were wrong, he believes she should not be in prison.
There are key distinctions. Most importantly, the fact that although the Glastonbury incidents are now under formal police investigation, no one has been arrested or charged. Still less has anyone been convicted, and due process is likely to take at least several weeks must now follow.
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Jonathan Hall KC, the independent reviewer of terrorism legislation, said what had happened was a “horrible, horrible thing” but was unlikely to meet the test for prosecution. He said the law would require evidence that the singer either knew someone in his audience was Jewish and had consciously set out to threaten them, or was seeking to spark an attack by the British people on Israel’s armed forces.
Does Britain have a “problem” with defending freedom of speech?
It is perhaps an uncomfortable reality for British liberals that when JD Vance took Keir Starmer to task for freedom of speech being “in retreat” in Britain and Europe, a significant number would have found themselves nodding in agreement.
The term, which opponents say is dangerously vague and allows for over-policing of social media, should be replaced with a more precise phrase, such as causing “serious distress”, according to the commission.
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That is not to say, however, that the UK system is regarded as a beacon of best practice. Some argue that attempts to transpose existing legislation dating back to the 1960s and beyond onto the digital age have created a mismatch where conversations that would be legal – or at least undetectable – in a home or a pub have become liable to criminal investigation online.
He added: “The public discussion of these issues is also complicated by the very term ‘hate speech’, which encompasses a variety of different kinds of hostile acts, some of which are criminal but many of which fall short of any criminally prohibited speech.”
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