Empty Threats to Prosecute Katie Hopkins are not a threat to Western Civilisation

Bloggers usually get readers by being outraged. To suggest that something really doesn’t matter very much is the way to lose readers.

On the other hand to suggest that Western Civilisation is at stake can grab the attention.

So I ought really to be getting outraged over former Apprentice contestant and Sun columnist Katie Hopkins and either denouncing her, or the alleged threat to prosecute her, in the strongest possible terms.

Until the New Year I had managed never to have heard of her but, as all readers will now know, she is famous for being very rude and apparently quite thin. She is being investigated by the Scottish Police for tweeting about the amazingly brave nurse Paula Cafferkey who caught Ebola after returning to Glasgow after treating sufferers in Sierra Leone, and is now in a critical condition in the Royal Free Hospital in Belsize Park.

On December 30th she tweeted:

Little sweaty jocks, sending us Ebola bombs in the form of sweaty Glaswegians just isn’t cricket. Scottish NHS sucks.”

Ebola Bombs tweet

Calling Cafferkey an “Ebola bomb” was unpleasant, but chippy Scottish nationalists were seemingly less bothered by that than by her jibes at Scottish nationalism in her next tweet.

“Glaswegian ebola patient moved to London’s Royal Free Hospital. Not so independent when it matters are we jocksville?”

jocksville tweet

A brief look at the Hopkins timeline shows that rudeness is what marketing people and Apprentice candidates would call her “unique selling point.”

In November, for example, in a reference to Hamas tunnels, she described Palestinians as “filthy rodents burrowing beneath Israel,” prompting George Galloway – one of the few people in the country habitually as rude as she is – to describe her as “rat-faced” and, “the lowest of the the low, even among Sun columnists.” Characteristically Galloway chose to denounce Hopkins from the platform provided to him by the Iranian propaganda outlet Press TV.

Galloway was himself investigated by the West Yorkshire Police and the Special Crime and Counter-Terrorism Division of the Crown Prosecution Service last year, after a speech in August in which he declared the that Bradford should be an “Israeli-free zone.” Indeed, I suggested at the time that his words might constitute the crime of inciting racial hatred under S.18 of the Public Order Act 1986. However, after a 3 month investigation CPS spokeswoman Deborah Walsh explained that Galloway would not face charges:

Given the context and setting in which the speech was made, including its overall content and the audience discussion which followed, we have determined that the speech did not indicate a desire to encourage others to hate a racial group.

There is also insufficient evidence to show, in all the circumstances of this case, that it was likely that people would have been motivated to hate people of Israeli origin as a result.”

The comments … were not made in a threatening manner, nor could they be considered abusive, to which case law has attached a high criminal threshold by defining as ‘extremely offensive and insulting’.

Furthermore, case law is clear that any offending behaviour must actually have occurred within the sight or hearing of someone likely to be caused harassment, alarm and distress, and that it is insufficient that someone might or could have seen or heard the offending behaviour.”

I don’t know much about Scottish criminal law (but I think it is not very different from English in this area) and I suppose it is theoretically possible that some ambitious Procurator Fiscal will try to make his name by taking on the blonde rentagob but given that Ms Hopkins appears to have been in England when the tweet was posted, this would seem to be primarily a matter for investigation by the English police.

Lawyers are generally most comfortable when sitting on the fence. Instinctively we want to say “on the one hand she could have committed a crime, on the other hand perhaps not and could you send me some more information, and perhaps pay for me to cogitate for an hour or two longer over this tricky legal issue before I come up with an ambiguous nonclusion.”

However, in this instance I will put my reputation on the line and guarantee that Ms Hopkins will not be arrested, let alone charged with any offence. It is not a crime to be rude, not a crime to be offensive and not a crime to express racist views. So even if her tweets were all 3 of these things she is in the clear.

The CPS have had their fingers burned in the past when prosecuting foolish tweeters, most notoriously in their prosecution of Paul Chambers for tweeting:

Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”

Threatening to blow up an airport is, on the face of it, more serious than being rude about Jocks and Chambers was prosecuted under Section 127 of the Communications Act 2003 which makes it an offence to send:

by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.”

It was suggested that the tweet was “menacing” in character, despite the fact that the Prosecution were unable to produce anyone who had found it remotely threatening, and despite the fact that when it eventually came to the attention of the Airport authorities (several days after it had been tweeted) they had classified it as “non-threatening.” Although Mr Chambers was successfully prosecuted in the Magistrates and the Crown Court, the CPS thought then thought better of it and even wrote to his solicitors indicating that they would not oppose an appeal. Unfortunately this sensible view was over-ruled by the then DPP, Keir Starmer (now the Labour Party Prospective Candidate for Holborn and St Pancras) who personally ruled that the appeal should be opposed.

In the event a rare three judge High Court presided over by the Lord Chief Justice ruled that the tweet could not be considered “menacing” and Mr Chambers’s conviction was quashed.

(As an aside, the case is also worth reading for the Lord Chief Justice’s wonderfully judicial explanation of Twitter:

In very brief terms “Twitter” enables its users to post messages (of no more than 140 characters) on the “Twitter” interne and other sites. Such messages are called “tweets”. “Tweets” include expressions of opinion, assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions of what the user is or has been doing, or where he has been, or intends to go. Effectively it may communicate any information at all that the user wishes to send, and for some users, at any rate, it represents no more and no less than conversation without speech.”)

As a result of the Chambers case the CPS has now issued sensible guidelines on prosecuting cases involving communications sent via social media which stress that prosecutions for even grossly offensive, indecent, obscene or false” tweets should be rare where they are not targeted at specific individuals, do not constitute credible threats of violence or damage to property and do not amount to breach of a court order.

Under these guidelines it would seem inconceivable that Miss Hopkins’s tweets could be prosecuted.

It is true that a Scottish policeman called DI Glyn Roberts has said:

“We have received a number of complaints regarding remarks made on Twitter.

“Inquiries are ongoing into the nature of these tweets and to establish any potential criminality.

“Police Scotland will thoroughly investigate any reports of offensive or criminal behaviour online and anyone found to be responsible will be robustly dealt with.”

The policeman’s cautious and moderate words have sent some commentators into a frenzy of excitement.

James Delingpole, for example, has denounced DI Roberts’s remarks as an existential threat to Western Civilisation.

Either you’re on the side of Katie Hopkins – in which case you’re one of the good guys who, seventy-five years ago would have been fighting the Nazis, and two and a half thousand years ago would assuredly have been with the Greek city states at Salamis.

Or you’re not, in which case you’re with Xerxes, Genghis Khan, Attila the Hun, and Stalin, Hitler, Mao, Pol Pot and the rest.

In any sane world, the people this Roberts person would be seeking to be arrest would not be Hopkins but all those nameless complainants for having wasted police time with such a wet, fatuous, self-pitying, professional-offence-taking gripe.”

Even Nigel Farage has got in on the act, albeit in a more restrained way than Delingpole, denouncing the police investigation as “a waste of time.”

But the threat that Hopkins will be prosecuted for her tweets is actually non-existent. Nothing will come of it. Western Civilisation is not at stake. She has committed no crime, even if she had committed a crime she would not be prosecuted for it and if, incredibly, some obscure Scottish fanatic tried to prosecute her she would be acquitted. The whole unseemly saga seems to have been manipulated by those who would see “political correctness gone mad” at any possible opportunity.

Obviously if complaints are received – whether about Katie Hopkins or Prince Andrew for that matter – the police are bound to investigate, and if asked they may well say that they are investigating. It does not mean that anything will come of those investigations.

I rather suspect that Delingpole knows this perfectly well, so here is my offer to back his judgement with his cash. If Ms Hopkins is charged I will pay £100 to a charity of his choice (we might even agree that it should go to Nigel Lawson’s excellent Global Warming Policy Foundation). If she is not charged Mr Delingpole can pay £100 to the Criminal Law Solicitors’ Association who are appealing for funds to fight a Judicial Review action against Chris Grayling’s appalling plans for the criminal justice system.

So come on Mr Delingpole, if you actually believe what you say, how about it?

(Note April 20th 2015: Mr Delingpole declined to take up my bet, which is a shame because he would have lost.

This ghastly woman is again in trouble for some nasty (Delingpole called them “trenchant”) remarks about how refugees were cockroaches who should be machine gunned. I bet she won’t be prosecuted for those remarks either (even though she has apparently been reported to the police), and nor should she be, much though she would probably like it if she was).

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

4 thoughts on “Empty Threats to Prosecute Katie Hopkins are not a threat to Western Civilisation”

  1. You say “Nothing will come of it. Western Civilisation is not at stake.” But I have to disagree.
    Civilisation is at risk when people get harassed by police for things they have said merely because someone else regards it as offensive.
    This is happening routinely in our country, and people are getting menacing, intimidating and insulting visits from police all the time to tell them to shut up. Why? Because someone else, some professional offence-taker, is using the rubbish laws about hate-speech” and censoring what they subjectively consider to be offensive.
    The victims of this do suffer. They suffer stress, indignity, misery and possible ill effects to their health. When two burly policemen turn up without appointment on your doorstep and tell you they are there to give you a “warning”, because somebody, anonymously, has complained, yes we are in the realms of Stalin and Pol Pot. It should never happen and it is happening all the time.
    Some people have been targeted like this repeatedly, merely because of what they write in a private blog or on Facebook which is visible only to their friends!
    The worst of it is that the offensive-takers are often the most offensive people e.g. Palestinians who circulate fake footage of supposed Israeli atrocities, and the Gaystapo who spend all day issuing abuse and death-threats on the internet themselves. These types have got into a habit of using the police as their “enforcers”. They ring up the police with their complaints and send them round to do some professional, uniformed BULLYING.
    Unless somebody has written a death-threat they should be left alone. At present, the people who issue the death-threats are also the people who use the police to be their bully-boys. The police do NOTHING about the death-threats issued by the complainers. That is a fact, and when challenged the police in my experience have lied about it categorically.
    Yes Farage is right that this is a waste of the time of our much-depleted police force who should be out there protecting the public from real criminals. But with [EDITED] police chiefs like Cahill and Fahy what can you expect?
    If people don’t like what Katie Hopkins says they don’t have to read it. That should be the end of the matter.
    So – yes, we need a change in the law and a change in the way the police behave.

  2. Lets hope that the same whingers made complaints to the police about the radical hate crime preachers we see regularly on our streets. Somehow I doubt it !

    1. Not a joke at all. It’s one area on which I agree wholeheartedly with Delingpole.

      It’s not a climate change “denial” organisation. Nobody could be stupid enough to deny that climate changes & Lawson does no such thing. The general drift of what he says is that trying to stop the climate changing is an expensive folly and the money would be far better spent on adapting to climate change.

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