Lucy Connolly, Bob Vylan and the False Claims of a ‘Two Tier Justice System’

I would wager that most of the people currently hammering on their keyboards about the punishment that should be meted out to, in no particular order, the BBC, Bob Vylan and the organisers of Glastonbury, probably didn’t actually catch the set by the London based punk/rap duo, in which, during the course of their performance they led the crowd in a chant of ‘death, death to the IDF’. 

Nevertheless, Culture Secretary, Lisa Nandy, was so outraged that she was prompted to the despatch box to declare that the comments were ‘appalling and unacceptable,’ and stating that the BBC had questions to answer over its decision to broadcast.  

Head of Ofcom, Baroness Smith, seemed to agree with Nandy, and accused the group of ‘definitely inciting racial hatred.’ Meanwhile, Chris Philp, the Conservative Shadow Home Secretary, decided to wade in by linking the performance of the duo to the case of Lucy Connolly, the wife of Conservative Counsellor who was jailed for 31 months after pleading guilty to the offence of inciting racial hatred.

He also added his inevitable attack on the integrity of the BBC and the Prime Minister, saying about Bob Vylan, that ‘he (sic), should be arrested and prosecuted immediately, ‘ and a failure to do so, would be a clear example of the ‘two tier justice system under Kier Starmer.’ 

Not surprisingly, as a result of these expressions of outrage and opprobrium, Avon and Somerset Police have been inundated with people claiming that they were offended by Bob Vylan, and wished to make a complaint, leading to the appointment of a Detective Constable to investigate the matter with a view to possible criminal charges. 

So, let’s dissect some of these points – first, what crime, if any, have Bob Vylan potentially committed?

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The Allegations

As far as I can see, there can only be three potential avenues open for a prosecution and none of them would be particularly attractive to any would be prosecutor – first, is the possible offence of making a threat to kill contrary to S.16 of the Offences Against the Person Act 1861 – for someone to be guilty of this, they must have made a threat to kill, and I suppose, shouting  ‘death’ to someone, might tick this box. However, they will need to have made the threat with the intention of that person believing that the threat would be carried out. The idea that over in Israel the IDF would have genuinely believed that a not particularly significant punk band and an audience of (I’m told) about 200 new age hippies were going to kill them, is a little far fetched.

The next potential charge might have been inciting a riot, contrary to the Public Order Act 1986. To fall foul of this, it would have to be proved that there was actual encouragement to riot or carry out some kind of public disorder. Again, no one is really going to accept that making a statement in the form of a chant, is an active call to riot.

This therefore only leaves the offence of inciting racial hatred as per the provisions, again, of the Public Order Act. Miss Connolly was convicted under S.19 of the Act, which is publishing or distributing written material likely to stir up racial hatred, which she did by posting a tweet in which she said: 

“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.”

Any similar charge against Bob Vylan would have to be brought under s.18, of the Act which states: 

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

So, was there an intention to stir up racial hatred? 

Bob Vylan, would, I’m sure, say no – indeed their statement today, says that they are not advocating the ‘death of Jews, Arabs or any other group of people.’ But rather their anger was aimed towards the State of Israel and the ‘violent military machine that has destroyed much of Gaza.’  This brings up the political and social grenade that is whether criticising Israel or any arm of the state of Israel is prima-facie an anti-semitic statement and therefore could be deemed racist for the purpose of the Act.

I don’t intend to argue either side of this debate in the course of this piece, save to say, that it is not a trite remark to suggest that as the atrocities in Gaza continue with increasing brutality, it is becoming increasingly difficult to defend the Netanyahu Government by suggesting that any criticism of its actions is anti-semitic.     

As such, a jury might not be particularly inclined to conclude that a statement made by a punk band, designed to attack the IDF, which makes no reference to Jews or Jewish tropes or stereotypes, is a racial statement as opposed to a political one. 

The second limb, however, might prove more difficult for Bob Vylan, which is the more objective test of whether racial hatred was likely to be stirred up by the chant, ‘death to the IDF’.

On this they would probably point out in their defence that the chant was part of a performance where the inclusion of a hyperbolic act of audience participation to make a legitimate political point, not meant to be taken literally, would not be taken seriously by those people who are typically present at their concerts. 

This is different of course, to the situation that Lucy Connolly found herself in, where, in an atmosphere of febrile discontent that was prevalent amongst certain sectors of society following the murder of three young girls in Southport, she urged people to burn down hostels housing asylum seekers. Clearly, that could be taken seriously by those reading it on Twitter and was a direct and unequivocal call to action which could not be passed off as part of a performance.

For what it’s worth, I happen to believe that the decision to prosecute Lucy Connolly was misplaced, and that the sentence, given her previously impeccable record of behaviour, was harsh – but, greater lawyers than me, including the Vice President of the Court of Appeal, Lord Justice Holroyd, heard her appeal and rejected it.

However, comparing her case with the case of Bob Vylan and trying to use it to support the baseless and frankly, offensive, allegation that we have a ‘two tier’ system is unhelpful – because all that will achieve is an increase in political pressure being placed upon the police and prosecuting authorities to take a certain course of action based not upon a proper application of the law, but upon a desire to make a political point and placate hysterical voices on social media.

And when that happens the important separation of the power of the judiciary and the Government becomes blurred, whilst the power of the police to remain impartial and objective is compromised. 

Bob Vylan should be treated as what they are, a punk band with something to say, looking for an audience to hear it; whilst Lucy Connolly should be treated as what she is, a keyboard warrior with racist tendencies who is prepared to spout opinion that is rarely based upon fact.   

Meanwhile, those who enforce the law from the police to the CPS should be left to pursue those who genuinely pose a threat to our society.