Might the BBC's Tim Davie Soon Find Himself Replacing Lucy Connolly in Jail?

According to a report in the Telegraph, Tim Davie, the Director General of the BBC, while himself attending Glastonbury, personally made the decision not to pull the live broadcast of Bob Vylan’s antisemitic festival antics from iPlayer. In response to the broadcast, Sharren Haskel, Israel’s Deputy Foreign Minister, has demanded Davie’s resignation.

I think Ms Heskel is pulling her punches. In the light of the Lucy Connolly case, it seems hard to escape the conclusion that Tim Davie, and possibly other BBC executives, ought to find themselves in front of a jury. Should they employ the same solicitor as Lucy Connolly, however, they may find themselves being advised to plead guilty and so avoid all the bother and expense of a court case, and as the Court of Appeal observed of Ms Connolly’s 31-month sentence, count themselves lucky they got off so lightly.

Let’s just remind ourselves why Lucy Connolly finished up in clink.

Lucy was prosecuted under Section 19 (1) of The Public Order Act 1986. She wrote:

Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care. While you’re at it, take the treacherous government and politicians with them. I feel physically sick knowing what these families will now have to endure. If that makes me racist, so be it.

Before it was deleted later the same day it was seen about 310,000 times and reposted some 940 times.

The BBC’s Glastonbury broadcast was reportedly seen by 20 million people with countless millions having seen it since on social media. It’s been reposted around the world and translated into multiple languages.

The offence Lucy pleaded guilty to carries a maximum sentence of seven years; Lucy received a 31 month sentence.

Whether you think she was guilty of the offence is neither here nor there, she pleaded guilty, consequently, the only task for the judge was to decide on the appropriate penalty. Again, you may have views on the harshness of the sentence, but that too is beside the point for our purposes here. What’s sauce for the goose is also sauce for the gander.

Is writing that you don’t care if all the hotels full of asylum seekers are set on fire materially different from calling for “death to the IDF”? Or, proclaiming “from the river to the sea, Palestine will be free”, the accepted inference being that Israel and the Israelis will have been ‘disappeared’.

Section 19 of the 1986 Public Order Act states:

19 Publishing or distributing written material.

(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if —

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

(3) References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public.

Of course, the ‘artists’ themselves, the duo that make up Bob Vylan, are guilty of initiating the chants, and the audience is guilty of repeating them, but it was the BBC which amplified them to millions more than Lucy Connolly’s lone tweet could ever have reached.

The BBC in general and Tim Davie in particular understood the sensitivities around broadcasting a chant of ‘from the river to the sea’. While quite possibly Bob Vylan, and undoubtedly many in the audience wouldn’t know which river or which sea, Tim Davie assuredly did.

Consequently, the question that interests me is whether Tim Davie or anyone else at the BBC will be charged with the same offence as Lucy Connolly? If they are, will their plea be a ‘guilty’ one? And if they plead ‘not guilty’ and go to trial, will a jury go on to find them guilty? If they aren’t treated similarly then surely this is just another case of two-tier justice.

Section 19 of the Public Order Act covers ‘written material’. Unlike Lucy Connolly, neither Bob Vylan nor the BBC wrote anything. However, Section 21 of the 1986 Act extends the offence to the broadcasting and recording of material.

Section 21 reads:

21 Distributing, showing or playing a recording.

(1) A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening, abusive or insulting is guilty of an offence if —

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

(2) In this Part “recording” means any record from which visual images or sounds may, by any means, be reproduced; and references to the distribution, showing or playing of a recording are to its distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public.

(3) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the recording and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

(4) This section does not apply to the showing or playing of a recording solely for the purpose of enabling the recording to be [included in a programme service].

Clearly, subsequent to the Connolly offence, violence ensued. However, no evidence has been presented that links Connolly’s tweet to that violence. The violence happened regardless of the tweet. The violence following the Southport killings was stirred up by the Southport killings. The murderer bears responsibility for stirring up rioting. In addition, the failure of the authorities to release information on the identity of the murderer left an information vacuum that fuelled the anger and race hatred displayed by rioters on both sides. Lucy may have stirred up hatred but there’s no evidence that she stirred up acts of violence.

To date no violence, to my knowledge, has followed the BBC’s decision to broadcast, uninterrupted, the Bob Vylan performance. But undoubtedly the performance did stir up racial hatred, sufficient hatred for the thousands in the audience to shout “death to the IDF”. However, neither Section 19 nor 21 of the act requires violence to be a consequence of the racial hatred stirred up. To be guilty under the act it’s sufficient to stir up racial hatred or to do something that’s likely to stir up racial hatred.

Intention is also important. In proceeding with the broadcast did the BBC intend to stir up racial hatred? It seems apparent that it did. The BBC could at any time have stopped the broadcast. I understand that there was a delay between recording of the performance and its broadcast, thus it was an editorial decision to broadcast the performance despite the very obvious incitement to racial hatred being played out on the stage. The broadcast of the performance could have been halted by the editorial team before the chanting or at anytime during the chanting. As we now know, Tim Davie was at Glastonbury and, apparently, took the decision to leave the streamed performance up on iPlayer. This is a clear breach of the Public Order Act.

Let’s suppose that Tim Davie finds himself in court having pleaded not guilty to stirring up racial hatred. Would a jury convict him? In London maybe not. But put himin front of a jury outside of London (or Oxford or Cambridge) and I think Shabana Mahmood might find she has to release Lucy Connolly early from her 31-month sentence to free up a bit more space in the prison estate for the BBC’s DG.