It was odious to burn an effigy of the Grenfell Tower – but those responsible should not have been arrested

Taking offence has become a much devalued commodity in recent times. Yet news of genuinely offensive behaviour still has a capacity to shock. Film has emerged of a group of people burning an effigy of the Grenfell Tower complete with the sound of their mocking callous laughter as the cardboard model collapsed in the flames. There may well have been a racist motivation to the grotesque display. All the more disturbing is that the model must have taken some time to make. This action is premeditated. There was not the mitigation of it being a spur of the moment antic fuelled by alcohol.

This odious occasion would once have only been witnessed by the handful of people who attended what I presume was a small gathering in a back garden. But instead, it has become widely known about due to footage being distributed on “social media” – one thoroughly anti-social aspect of which appears to be that the more revolting something is, the more enthusiastically it is passed on. As a result, it is inevitable that some of those still grieving for loved ones who perished a year ago will have seen, or at least heard about, this awful film clip.

So let us accept that such behaviour was hateful. It does not follow that it should be a crime. The modern concept of criminalising hate is flawed. Crime and hate are different. They both must be defeated but this needs to be done in different ways. The force of law must be used to defeat crime. But defeating hatred is a battle that takes place on the terrain of hearts and minds. This is not to say there is no link between hate and crime. The thought can lead to the action.

Indeed a recent piece by Charles Moore asked:

“Can you think of a serious crime which does not involve hate or, at the very least, contempt? You must hate people to murder them, rape them, rob them, beat them up, post excrement through their letterbox or even defraud them. This intense hostility is a good reason for punishing such actions. The concept of ‘hate crime’ ignores this. It fastens on particular hatreds, making it worse for, say, a black person to call a white person a ‘white bastard’ than for him to call a black person a ‘f***ing bastard’ (or vice versa). Why? Racism, religious enmity, anti-gay feeling etc are sources and triggers of hate, so they are often important factors in a crime, but once they are specially categorised they skew the system to downplay all other forms of hate.”

Therefore the news that five men have been arrested in south London over burning the effigy is disturbing. There must be the caveat that the information is limited. It was reported that the police were investigating a hate crime – although the arrests have been made under Section 4A of the 1986 Public Order Act. (Hate crime comes under the Criminal Justice Act 2003.) So the issue would appear to be public order rather than a hate crime. But then the incident occurred in a back garden and if the volume was not excessive what was the breach of public order? Section 4A says:

“A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

(3)It is a defence for the accused to prove—

(a)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling or

(b)that his conduct was reasonable.”

Thus no matter how vile the behaviour was they will be let off if they can establish they had “no reason to believe” that it “would be heard or seen by a person” who was not present. So presumably the police will focus on the filming – the distribution of it and motivation for it.

In a way, it is precisely the pure awfulness of burning the effigy that offers the challenge to those who like to think of themselves as defenders of free speech. To believe in freedom of speech “provided it isn’t offensive” would be more honestly expressed as opposition to free speech. But so often the defence rests on finding some redeeming aspect to whatever is being objected to.

Modern artists go to ever more extreme and desperate efforts to shock – sacrilege and obscenity are embraced and urine and faeces judged suitable materials. In the interests of “artistic freedom”, they are not arrested but given a subsidy.

Then there is the freedom of religion and the freedom to mock religion. Given what the Koran teaches about homosexuality should not Muslims be entitled to say that it is a sin? Is it not also understandable if gays have some pretty robust comments about Islam? Traditionally the police have left them to get on with it, provided they don’t come to blows.

What about the Lewes Bonfire? (Which was described in such vivid and positive terms on this site by Andrew Gimson only this morning.) Is it not offensive to burn an effigy of Jacob Rees-Mogg? But here the defence is tradition – one which surely Rees-Mogg himself would be the most enthusiastic in endorsing.

Or what about the wolf-whistling scaffolders in Nottinghamshire – this gets caught up in the point that while some women take offence, others are amused or flattered.

Or then we have William Sitwell’s email about “killing vegans”. The point was made that the police hadn’t arrested him and if Waitrose chose to dispense with his services that was a decision for them.

Next week it will be something else and another Twitter lynch mob will chaotically charge off.

Another difficulty is the present Alice in Wonderland definition of hate crime as “any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice towards someone based on a personal characteristic”. Perception is the “defining factor” says the police guidance “the victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception.”

Even if all the “hate crime” laws were scrapped then there would still be a law against incitement – which most would regard as a necessary restriction on free expression. There are philosophical matters which are important but not necessarily straightforward. But while libertarians agonise over how many angels can dance on the head of a pin, a more straightforward argument comes over police resources.

Suppose that ideally, the police should arrest people for being offensive, and the philosophers and lawyers can get all the definitions neatly thrashed out, should it be a priority?

Last week Chief Constable Sara Thornton, the chair of the National Police Chiefs’ Council, expressed concern at a proposal that misogyny should be made a hate crime. She said:

“We are asked to provide more and more bespoke services that are all desirable – but the simple fact is there are too many desirable and deserving issues. I want us to solve more burglaries and bear down on violence before we make more records of incidents that are not crimes…Neither investigating gender-based hate crime or investigating allegations against those who have died are necessarily bad things – I just argue that they cannot be priorities for a service that is overstretched.”

Imagine the police budget was doubled or tripled; I would still argue that protecting individual liberty matters. I’m afraid that would have to include being allowing to laboriously construct a cardboard model of the Grenfell Tower on a kitchen table and then setting fire to it in a back garden – despite that being the most warped of pastimes.

In any event, there is no prospect of the police being offered largesse on any such scale. So the practicalities make the duty of politicians clear. They should cease burdening the police with further virtue signalling laws – and get on with repealing some of the ones we already have.