The ‘Crime’ Allison Pearson is Being Investigated For is Blasphemy Against the Official State Religion

The shocking police doorstepping of Telegraph columnist Allison Pearson last week has rightly sparked grave concern about the parlous state of freedom of speech in Britain. For a tweet she posted last year, Pearson is under investigation for “stirring up racial hatred” under the Public Order Act 1986, which regular readers will know can carry penalties of years behind bars. In a period when pro-Gaza marches were flooding the capital every Saturday, Pearson reposted a video showing two south Asian-looking men holding a green and red flag on a British street next to a group of police officers. “How dare they,” she wrote. “Invited to pose for a photo with lovely peaceful British Friends of Israel on Saturday police refused. Look at this lot smiling with the Jew haters.”

It has struck me that many of the free speech advocates to criticise the authoritarian investigation into Pearson this week have done so on what one might call empirically minded lines. Where is the evidence, for instance, that any disorder did actually result from Pearson’s post? One prominent human rights lawyer, arguing in the Telegraph that Pearson did not deserve a visit from the police, has said that an investigation should only have proceeded “if damage has demonstrably been done during the time [the tweet] was up”. Assessing whether or not the tweet ought to have merited such a heavy-handed response, Pearson and her lawyers have looked carefully at the wording and concluded that it does not meet the “threshold” for criminality.

Others have pointed to the ridiculous extravagance of the investigation itself, which involved three separate police forces and is now being run by a Gold Command unit – usually reserved for the most serious offences. Aren’t such investigations an enormous waste of police time, especially for a force, Essex Police, which has a parlous record when it comes to solving actual crime? Then there is the wider chilling effect such investigations have on people’s speech. And why is Pearson being doorstepped by the Old Bill now when the post is a year old – shouldn’t there be some kind of statute of limitations on these things? The overall idea is roughly that the police should take a more sensible and reasonable approach when it comes to allegedly inflammatory speech.

I understand and sympathise with all these arguments – they all make sense. But I fear it would be naïve to imagine that such concerns will play much of a role in this investigation. That’s because with the way alleged criminal speech is viewed by the authorities today, concerns of reasonableness, proportion and evidence scarcely matter at all (although they might matter to a jury).

As Ian Rons has demonstrated here before, British law has long since departed from viewing potentially inciting speech through the old common law standard of a breach of the peace. Once upon a time, for speech to be deemed criminal, there was a “clear necessity of the connection between the words spoken and the likelihood of physical harm”. Today, however, a direct link with actual disorder is no longer necessary. 

Such an outcome was already foreseen back in 1965 in the debate over Harold Wilson’s Race Relations Act. It was its Clause 6 that first introduced the concept of incitement to racial hatred – under which Pearson is now being investigated – into British law. In the Commons debate, Conservative MP Howard Bell objected to the newly created incitement to hatred offence. He argued: “[T]he material difference here is that, whereas in the past we have always looked to the question whether a breach of the peace was likely to result [from a given speech act], now for the first time, if this Clause is passed, we shall no longer be looking to that test.” Instead, he said, “we shall be looking to the content of the words which are uttered, to the opinion, and it is the opinion, the view itself, which will be outlawed”.

While this may not have been immediately obvious at the time, this is undoubtedly what we are now experiencing. For one thing, as Rons explains, it was the Race Relations Act that started us down “the slippery slope toward our current free speech crisis” by making the criminal law take an interest in people’s supposed emotions. The notional link it makes with public order is that where there is hatred, violence will soon follow, but as critics noted at the time, no evidence of this sociological hypothesis was ever brought forward. Nevertheless, for this and for subsequent laws, the supposed link between alleged criminal speech and material violence was now to rest on this tenuous and speculative hypothesis (depending, as Freddie Attenborough explains, on a flawed psychological theory).

Six decades on and the distance between speech and material harm is very great indeed. Take Section 127 (1) (a) of the Communications Act 2003. Originally, this specified an offence that was material – if highly subjective – namely causing “offence” to some specific individual.

In a landmark case last year, however, six police officers were convicted under the Communications Act of sending grossly offensive racist messages in a private WhatsApp group in the absence of any identifiable victim. How? While the “racist, sexist and homophobic” messages had only been seen in a private group, the judge said, they were “offensive to many good people in this country and not only people who might be directly offended”. Which is to say: the cops had not caused even any psychological “harm” or “distress” to any specific individual. Rather, they were guilty of making private jokes that offended progressive sensibilities. Or as Bell might have put it: the view itself was outlawed.

In that case, no individual needed to have been harmed by the offence. Meanwhile, during the civil unrest this summer, no evidence was needed that social media posts for which people went to prison had had any effect on the riots. Indeed, as I wrote here recently, when Sir Keir Starmer asserted, just days into the riots, that the violence had been “whipped up online”, he did so purely as an article of faith. 

The courts convicted people of having contributed to the riots while freely admitting they would “never be able to quantify what level of disruption” a given post had caused. The lack of concern for material causality became something disturbingly pre-modern, like medieval monks, not yet understanding germ theory, blaming sinfulness for the plague. In one particularly stark example, Julie Sweeney, a grandmother and sole carer to her husband, was sentenced to 15 months behind bars for a Facebook post relating to a riot that had happened the previous night. And only this week, Cameron Bell, a 23 year-old care worker, was sentenced to nine months for live streaming the aftermath of a riot on TikTok, during which she made comments the judge called “abhorrent”.

Other rulings showed that there was an explicit political rationale to why these speech transgressions were being taken so seriously. When Lucy Connolly was sentenced to 31 months for stirring up racial hatred, the judge felt moved to admonish her that: “It is strength [sic] of our society that it is both diverse and inclusive.” He went on: “There is always a very small minority of people who will seek an excuse to use violence and disorder causing injury, damage, loss and fear to wholly innocent members of the public and sentences for those who incite racial hatred and disharmony in our society are intended to both punish and deter.”

Why did he feel moved to say this? What was its material relevance to case at hand? Pearson herself has remarked how strange and disquieting it is that “a judge thinks it’s his business to parrot Left-wing platitudes” from the bench. But there is in fact a clear rationale to what he was doing here. His was an orthodox statement of contemporary multicultural ideology – the thing that everyone in modern Britain is officially supposed to believe (even if fewer and fewer actually do). And by inciting “racial hatred and disharmony”, Connolly had thumbed her nose at this sacred value of our ruling regime – so she must therefore be punished accordingly. It’s a bit like if she had exposed herself as “counter-revolutionary” in Soviet Russia by wondering aloud about the length of the bread lines, or been found a heretic by the medieval Inquisition. I submit that Connolly, and many like her, were not being sentenced for having fomented disorder in any direct sense. Her crime, in the eyes of the authorities, was that she had committed blasphemy against the state religion.

This is why, for all the practical, fair-minded reasons why the investigation into Pearson ought not to go any further, it still has me worried. It’s clear that in our present society, after the radical constitutional changes of Tony Blair, after the creation of the College of Policing, after the successful infiltration of woke ideology into every nook and cranny of our institutions, the authoritarian possibilities always latent in the Race Relations Act 1965, the Public Order Act 1986 and the Communications Act 2003 are coming fully into view. They are being used not to keep order, but to punish ideological dissent. If there is to be any silver lining to this disgraceful targeting of a first-rate journalist, it should be to show that the campaign to repeal all three is more urgent than ever.