The Case for Prosecuting Bob Vylan for Hate Speech

I have already written how the chant of “Death to the IDF” said by Bob Vylan (real name Pascal Robinson-Foster) at Glastonbury could be prosecuted under section 18 of the Public Order Act 1986.

I also believe that the other controversial words of the band, “I hear you want your country back, STFU, you can’t have that” could also be prosecuted under the same Act.

Section 18 of the Public Order Act 1986 prohibits the use of words or behaviour intending to stir up racial hatred. It states:

(1) A person who uses threatening, abusive or insulting words or behaviour… 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.

I am a lawyer but you do not have to be a lawyer to understand the offence. The words have their ordinary meaning. If you use threatening, abusive or insulting words and either intend racial hatred to be stirred up or having regard to all the circumstances racial hatred is likely to be stirred up, you commit an offence.

Section 17 defines “racial hatred” as hatred against a group of persons – defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

In very simple terms, if you use insulting words (or behaviour) in circumstances where racial hatred is likely to be stirred up you commit an offence.

You do not have to incite violence. You do not have to name the group of people you intend to stir up racial against. In fact, you do not even have to intend to stir up racial hatred, just that objectively speaking, racial hatred is likely to be stirred up.

If this sounds like a low bar, that’s because it is.

For a criminal offence (and this is a bit technical) what really sets the bar low is that the CPS (the Crown) does not have to prove that the person saying the words intends to stir up racial hatred. This is known as subjective intention.

In fact not even recklessness is required (a term of legal art), which would mean the defendant must be aware that racial hatred could be stirred up in the circumstances, even if he doesn’t intend it.

In fact, all that must be proved is that, in the circumstances in which the defendant said the insulting words, racial hatred is likely to be stirred up. This is very unusual in criminal law. But this offence has been on the books for years and I don’t remember anyone complaining about it.

So this rapper gets on stage and raps “I hear you want your country back, STFU, you can’t have that.” These are insulting words. He said them. Therefore the actus rea is proved.

In the current circumstances of immigration, open border, the Southport riots etc. it could well be argued that these words were likely to stir up racial hatred against white people.

Now Mr Robinson-Foster might say that was not his intention. That doesn’t matter. As I said before the bar is low for this offence, merely showing that racial hatred against white people was likely to be stirred up in the circumstances is enough for the offence once the words are deemed insulting.

That’s how broad Part 5 of the Public Order Act 1986 is. Now, if you think all of this is ridiculous, that you do not like these rapper people but you do not think they should be prosecuted, then you need to put together a campaign for the repeal of Part 5 of the Public Order Act 1986.

Understand however, that it will be too late for Lucy Connolly, who is still serving her 31 month sentence after pleading guilty to a very similar offence under section 19 of the Act.

The other key issue is that the Attorney General Lord Hermer KC must consent to a prosecution under part 5 (section 27). I suspect this was put in there as a limiting power.

However it is a huge discretionary power that directly undermines the rule of law. The rule of law (which AG Lord Hermer KC never stops banging on about) means that the law must be applied equally and in an unbiased way. Therefore if Lucy Connolly was prosecuted, pleaded guilty and sentenced to a significant custodial sentence then a charge or charges should be laid in the Glastonbury case.

In addition, the Attorney General is a political appointment. So the decision whether to prosecute under Part 5 of the act is by definition a political decision. These are political decisions to prosecute speech. The AG, who is appointed by the government of the day, has the final word on which “insulting words” should be prosecuted and what not to prosecute.

Can you imagine in the US if the Attorney General just got to pick and choose which prosecutions of speech to make? That is the English legal system at the moment. It’s ridiculous and I am a lot less liberal on speech than others on the Right.

Laura Perrins is a conservative commentator and former barrister. Subscribe to her Substack.