Captain Tom and Gross Offense

You may be a little surprised to hear that in Britain, being ‘grossly offensive’ is a crime. Joseph Kelly might feel similarly. On Monday he was convicted for sending a tweet – admittedly a fairly nasty one – about the late charity fundraiser Sir Tom Moore. When he shook his head – in disagreement or disbelief – during proceedings, Sheriff Adrian Cottam threatened to place Kelly in cells.

Kelly’s ‘joke’ was certainly in the poorest of taste. On February 3 of last year, shortly after Sir Tom’s death he tweeted: ‘The only good Brit soldier is a deed one, burn auld fella buuuuurn’. During the trial, the Sheriff found that Kelly’s off-colour remark about a ‘national hero’ who had ‘captured the heart’ of the country during the pandemic was a ‘gratuitous insult’ that was made ‘with only offence in mind’. He concluded that ‘what the accused chose to write, when and how it was said, can only be regarded as grossly offensive’.

Unpleasant though Kelly’s tweet was, I doubt a criminal record and potential imprisonment is either necessary or just. Making crass remarks about famous people, especially after they die, is something of a national pastime. Threatening people who say these things with legal sanction, however distasteful they may be, is wildly disproportionate. That his remark meets some arbitrary standard for offensiveness under the Communications Act shows not that Kelly deserves punishment, but rather how invidious the Act is.

It is a pity for him that the Sheriff must implement such a prissy and censorious law.

It’s not entirely surprising, however, for Scotland has long led the rest of the United Kingdom in this kind of legal censorship. Scots have been arrested for ‘homophobic’ and ‘transphobic’ tweets, and many more each year are visited by the police for a talking to about what they can and cannot say.

Last year, the Scottish Parliament passed a new hate crime law which created a new offence for ‘stirring up hatred’. Not only could this concept easily be overzealously interpreted by the police, before it was amended by MSPs it would have been considered worthy of prosecution even if it was not intentional.

Scots law risks being made foolish and worse by laws like this and convictions like Kelly’s, but the authoritarian tendency is present across the UK.

Take the case of South Londoner Paul Bussetti, who burned a Grenfell Tower effigy on a bonfire in late 2018, an undoubtedly tasteless act for which he has been repeatedly hauled into court. The Court of Appeal recently decided that his acquittal before an earlier court was not reasonable and that he must now face trial again. The irony here is that few would even remember the original stunt if not for the continually fumbled prosecution. Bussetti defends what he did as a ‘joke’ for a few friends on WhatsApp. The legal helter-skelter has proven rather unfunny in the years since.

But our country’s censoriousness extends beyond the Communications and Public Order Acts – both of which give great leeway to prosecutors willing to use their limited resources to try people over things like this.

It is noteworthy also how far police forces and politicians seem prepared to exceed their powers on touchy political subjects. As this Observer essay last year noted, forces across the country prepared to give incorrect legal advice – like Merseyside police stating that ‘being offensive is an offence’ – or to investigate people based on such cheaply given things as Facebook and Twitter likes.

Until recently, it was common practice by police forces to take note of all ‘non-crime hate incidents’ – a contorted phrasing which meant, in practice, keeping detailed lists of things individuals had said that others had found offensive. A profound waste of time and money and, the Court of Appeal later found, an unlawful infringement on freedom of expression.

This practice, at least, has now been curtailed – but that can hardly comfort to Kelly. He has been convicted of sending a vulgar tweet and his exculpation rests on an uncertain appeal. He must be quite surprised too that so few have come to his defence.

Over a decade ago, Paul Chambers made an unfunny joke about terrorism on Twitter for which he was convicted. Back then it was an outrage, people donated to his legal fund and celebrities and comics took turns speaking on his behalf and calling him a funny guy. After three appeals, Chambers’ conviction was overturned. It was a big deal.

Whatever your feelings about Captain Tom, it’s still strange that Kelly has not enjoyed similar support. Where have the defenders of free speech and tasteless jokes gone?

This piece was originally published at CapX.

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