Met Police: Men in Tights is the name of a comedy film that won’t be produced anytime soon at the famous Ealing Studios in London, owing to the Metropolitan Police’s decision that if you are a TERF, i.e., a woman who holds gender-critical views, this entitles anyone (even an attempted murderer out on licence) to incite a crowd to violence against you. In doing so, they seem to have suddenly become converts to a brand of free speech activism more radical and absolutist than that espoused by almost any free speech advocate I know – at least, when it comes to the speech of trans activists.
The case is that of Sarah Jane Baker, a biological male and trans woman, who was a speaker at this Saturday’s London Trans Pride event, and who said while on stage: “If you see a TERF, punch them in the f—ing face!” This produced a cheer from the assembled throng, which must have warmed the heart of Baker, out on licence (i.e., parole) after serving a 30-year sentence for kidnap, torture and attempted murder. Baker’s comments were made in the context of his targeting of noted gender critic Sarah Phillimore and his attempt to demand access to the launch for her book Transpositions in Manchester later this month. In many people’s eyes, Baker is a violent thug who is a clear threat to public safety, and whose licence should immediately be revoked. But what are the moral and legal issues, and is that view correct?
I should firstly note that I’m not a lawyer, but I’ve never let that stop me – and it certainly hasn’t stopped Acting Police Sergeant Daniel Warner, whose ridiculous dismissal of a complaint by a member of the public about Baker’s comments has already been eviscerated by the barrister Dennis Noel Kavanagh. But with Warner now on the floor, I want to put the metaphorical boot in. Sgt. Warner’s response went as follows:
I am emailing from the met police [sic]. I have reviewed the matter you reported to us which relates to a Sarah Jane BAKER stating if you see a TERF you should punch them in the face.
TERF: trans-exclusionary radical feminism. This is not a hate crime. A TERF [sic] is not a protected characteristic under the legislation.
A TERF would be a person’s opinion [sic!], whether this opinion is viewed as discriminatory itself or not.
The female is suggesting (inciting) members of the crowd to punch individuals who act on this belief. This is not targeted at an individual, this is in a hypothetical situation.
The crowd that were being spoken to were there for PRIDE [sic] day in London and were there for the purposes of expressing their support for LGBTQ+ members.
I believe the most appropriate offence may potentially be a PO s5 [Public Order Act 1986 s.5].
I do not believe that this is proportionate to progress any further. We need to take into account article 10 of the ECHR – freedom of expression:
Part 1 of Schedule 1 to the Human Rights Act 1998 reproduces article 10 of the European Convention on Human Rights and Fundamental Freedoms, which provides for the freedom of expression.
10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
I am closing this report without further investigation given the circumstances described above.
If you wish to speak with me further about this please do contact me.
Many thanks,
Daniel Warner
A/PS 263802
1141AW
Metropolitan Police
Charing Cross Police station [sic]
ERPT-B
I’ll leave aside Sgt. Warner’s questionable grasp of the English language – that could be unfair, since woke-ish may be his first language. He repeats Baker’s derogatory term “TERF”, which is used to insult gender-critical feminists, and while it might not be quite the same as repeating the term “n—” back to a black person complaining about someone’s use of that term to incite violence against black people, it looks like a sign of prejudice. Sgt. Warner then claims that gender-critical views are not a protected characteristic, despite the fact that (as Maya Forstater’s victory has established), gender-critical views are a protected philosophical belief under the Equality Act 2010.
However, Kavanagh rightly points out that this is completely irrelevant in assessing whether Baker has committed a criminal offence. Simply put, it doesn’t matter what the views of a person are, or their prior actions – even the worst kind of murderer or paedophile is entitled to protection under the law from criminal acts committed against them, or (in this case, as Kavanagh suggests is appropriate) the inchoate offence of “encouraging or assisting the commission of an offence” (Serious Crime Act 2007 s.44). And of course there’s no sense in which the targets of Baker’s criminal incitement are in any way blameworthy – although one might question whether Sgt. Warner has been trained (perhaps following unlawful Stonewall guidance?) to think that they are. (Sgt. Warner, do we need to “check your thinking”?)
Sgt. Warner then goes into full defence counsel mode and suggests, without any basis, that Baker was merely inciting the crowd to attack people “who act on this [gender-critical] belief”, which he suggests could be a “discriminatory” belief. This, I think, reveals Sgt. Warner’s thinking, which seems to be that a person acting on (i.e., expressing) gender-critical views may be acting unlawfully, and probably has it coming (despite the Miller and Forstater cases). He doesn’t use the term “provocation”, but this nevertheless leads me to wonder whether Sgt. Warner would go so far as to dismiss a complaint of assault against a gender-critical person if that person had expressed their gender-critical views loudly outside a pub at closing time, or even in a more neutral setting.
We’ve all seen the absurd CPS guidance saying that misgendering a family member can be domestic abuse, so it’s reasonable to ask whether, for example, misgendering a person in public could mean the CPS might decline to charge an assailant because “provocation” could be a successful defence. There are also reasonable questions to be asked of Manchester Police in relation to Sarah Phillimore’s upcoming event. We know these kinds of threats from trans activists are real, and we know how deeply Stonewall and Pride have infiltrated the police force – leading Sarah Phillimore to be sufficiently concerned about her event that she is now paying for security. After all, if the Met Police (who attended the London Trans Pride event) did nothing in response to Baker’s incitement to violence at the time, and are now finding excuses for Baker, how can gender-critical people rely on the police to protect them? This represents a potentially rather serious breakdown in public trust in the police, given that (probably) the vast majority of people do not, in fact, believe that a biological man can be a woman.
But Sgt. Warner’s excuses for Baker’s comments go even further, almost turning the law on its head, when he cites article 10 of the ECHR as a reason not to charge Baker of even the minor Public Order Act 1986 s.5 offence of causing “harassment, alarm or distress”. This section of the 1986 Act has been used to attack lawful free speech (including gender-critical views) in the past, and I am not defending or advocating its use. However, as Kavanagh notes, article 10 is not a defence against threats of violence – and in fact it is the lawful speech and views of Sarah Phillimore, J.K. Rowling, Maya Forstater and many others that are under threat. Allowing criminals to incite violence against people for their protected beliefs in this manner could even, perhaps, be an article 10 violation on the part of the Met Police by implicating them in any resulting offences. But I wonder whether it’s the knowledge that if Baker were found liable even under s.5 that this now-famous trans person would have to be sent back to prison, or the fact that London Mayor Sadiq Khan offered unreserved support for the London Trans Pride event, that has given rise to Sgt. Warner’s remarkable zeal for the free speech cause.
It’s a zeal so strong that perhaps an overwhelming majority of informed free speech advocates couldn’t claim to possess it, because (taking, as I do, the highest standards of U.S. First Amendment jurisprudence as a guide), Baker’s comments arguably meet the very strict Brandenburg v. Ohio test, which only prohibits speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. The Brandenburg test is a very narrow one with scant refining case law (further information can be found here and here), but I believe the lawless action in question (a) could be regarded as “imminent”, since Baker specified when to commit such unlawful acts (when meeting a “TERF”), (b) could be regarded as Baker’s subjective intention or purpose to incite or produce, and (c) is likely to occur, given the fact that such lawless action has occurred in very similar contexts, and thus there is evidence of people of similar mind to Baker’s audience being willing to commit such acts (and I note also the reaction of the crowd), and (d) that – speculatively – a police investigation into Baker’s communications might also reveal evidence of Baker encouraging other trans-activists to put themselves in a position where they would meet “TERFs” and potentially carry out Baker’s apparent wishes (noting that Baker has allegedly attempted to bully his way into Sarah Phillimore’s event, and may have encouraged others to gain entry too). But I’m no lawyer, and I could be wrong – anyone disagreeing is welcome to DM me or post their views in the comments.
Of course, while I advocate for free speech law in the U.K. to match the shining example set by the U.S. Supreme Court (despite having some differences here and there), in the U.K. our standards are so contemptibly low that even teaching a dog to do a joke Nazi salute can lead to a criminal conviction, meaning the Met Police could very easily arrest Baker – or at least call him in for one of those sinister interviews to explain his views – if they had any desire to do so. But we all know what they wear on their uniforms and which parades they’ve marched in for years, don’t we?
Stop Press: Thankfully, Greater Manchester Police seem to have realised the potential for danger, and are taking this seriously. Whatever one might say about that constabulary, they should be applauded for this.
Stop Press 2: The MailOnline is reporting that the Met Police have re-opened the investigation into Baker’s remarks, and that “enquiries remain ongoing”.
Stop Press 3: The Home Secretary Suella Braverman has weighed in, expressing her support for the re-opening of the Met Police investigation.
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