Legislating in a public panic makes for dangerous laws
Widespread anger is sometimes explicable. The murder of Sarah Everard caught a great number of people on the raw, and who can blame them? The lockdown was a dual factor. There is a good old Scots word, “scunnered.” Though not quite onomatopoeic, the sound conveys the meaning: far more forceful than ‘fed up’ or ‘pissed off.’ A great number of people are now well and truly scunnered over lockdown, As a result, black moods descend. There are losses of temper over life’s petty frustrations and a widespread volatility. This found an outlet over Sarah Everard.
The second Covid-related factor is city life. Cities promote freedom: Max Weber’s panegyric is still relevant. But that freedom can only be enjoyed in certain parts of most big cities. In London, one can find modern equivalents of Fagin’s kitchen and the darkened streets where Jack the Ripper perpetrated his horrors. One antidote to all that is crowds. To be sure, not all crowds are benevolent, but on the whole, the presence of lots of people enhances security. Their absence diminishes it. So streets that are normally safe suddenly cease to be. A walk home suddenly becomes a walk into danger. Empty streets enlarge the scope of evil.
Widespread anger also encourages exaggeration. After reading some of the more lurid coverage, one might conclude that no female in the Kingdom can safely leave her house. In fact, despite lockdown, the murder rate for female victims has not increased in ten years and murder by strangers is exceedingly rare. Road traffic accidents claim far more lives. Equally, those who wish to express their commitment to female safety ought not to congregate in large groups. Covid has, and still could, cause far more fatalities than murder.
But anger spurns the actuary and the statistician. There has been a tragedy. This is intolerable. But me no buts. Something must be done. Someone is to blame. Let them be hounded and shamed. Of course, someone is to blame: the murderer. He must be tried and punished. That said, he – almost all such murderers are male – is entitled to the presumption of innocence and a fair trial as opposed to headline justice. This is not inspired by an excess of humanitarianism. In the current case, it may prove easy to establish the facts, but we should remember the Bristol schoolmaster a few years back whom the press and the local police had already convicted. A double miscarriage of justice was narrowly averted. An innocent man would have suffered a terrible fate, while a murderer and potential serial killer went free.
Beyond catching the real killer, little can be done. Some men, and a much smaller number of women – Myra Hindley, Rosemary West, although they were accomplices, not principals – seem to have been born warped. Or was their upbringing to blame? Now that such murderers are no longer hanged, it might be worth scrutinising the ones in prison to see if any lessons can be learned. Even then, what could be done? The neighbours always suspected that murderer X would come to no good: as a child, he enjoyed torturing pussy cats. Little Jack X, currently toe-ragging his way around the juvenile justice system, is also known to be cruel to cats. Can we therefore sentence him to life-long preventive detention? Not really, even if this means disappointing any neighbouring cat-lovers.
We have to accept the fact that every year, a small number of females will be murdered. A tiny number of men are wild beasts with a taste for blood. Fortunately, the numbers are small, but few will find consolation in that.
Anger also demands thoughtless law-making. In this country, we already have plenty of laws. In the Blair era, our politicians developed a bad habit, which has not yet been cured. Every time a lurid crime was committed and the tabloids demanded action, the politicians would promise a new law, blithely ignoring the point that there already were laws which dealt with the offence. A few years ago, in the three-hour essay part of the Cambridge history finals, one question read: ‘The Middle Ages were good at law but not so hot on order. Discuss.’ (“Quite so” would not have been an acceptable answer.) For the Middle Ages, substitute modern Britain. Of making of laws there is no end. We have more than enough already. The need now is more order.
Covid has brought the criminal courts to the verge of chaos, and even before that, there were problems. Solving those ought to be the priority, not unnecessary legislation. There has been one recent obvious example of superfluous law-making; up-skirting. It already was illegal. The man who did it could be charged with assault. Equally, if women were complaining that such and such a tube line was over-run by up-skirters, send in a few plain-clothes coppers to restore order: a much better idea than sending them into night-clubs.
But the law on up-skirting will do no harm. That is not true of another proposal: to criminalise so-called hate speech. This is dangerous nonsense. The best criminal laws are those which will lead to trial on the basis of facts. A murder has been committed, or a burglary, or perhaps a motorist drove at 37 mph in a 30-mile zone. With hate speech, how can the facts be securely established? One man’s hate speech is another man’s free speech.
Freedom of speech cannot be an absolute right. In the words of that great Common Law jurist, Oliver Wendell Holmes, no-one is allowed to shout “fire” in a crowded theatre. But interference with free speech is a grave intrusion into the liberties of the subject, which should not be permitted merely because someone might take offence.
Moreover, there are already laws which would cover egregious examples of hate speech. If you went into Brixton market and called for the reintroduction of slavery, you would almost certainly have committed a breach of the peace. The same would be true if you stood outside a synagogue calling for another Holocaust. In each of those cases, the miscreant would be bound over to keep the peace and if he persistently refused to do so, he could end up in gaol. Moving up the scale, there is incitement to violence. Let us suppose you were to declare that all Scotsmen are scum and that on seeing one of them, any decent person ought to give him a thorough kicking; forget about A&E, you should want him to end up in intensive care. If you were to say that, and there were the least likelihood that someone might take your advice, you would always certainly be sentenced to imprisonment (though there should be good grounds for a plea of insanity).
If those in favour of banning so-called hate speech had their way, they would undoubtedly move on to humour speech. There again, one man will laugh while another takes offence. So what?
Occasionally taking offence is a price well worth paying for the right to live in a free society. Even in such a society, there will be tragedies, such as Miss Everard. Those in authority cannot abolish tragedy. But they should concentrate on protecting the law-abiding and their freedoms, rather than wasting time on dangerous silliness.