Claims that the UK is in the midst of a free speech crisis and suffers from a “two-tier” justice system are unfounded, but the recent arrest of comedian/writer Graham Linehan at Heathrow Airport by armed police officers has provided ammunition for those intent on pushing this agenda.
Linehan is a highly successful Irish comedy writer, known amongst other things for Father Ted and the IT Crowd. In recent years he has become well known for his gender critical views. On 1 September he was arrested at Heathrow Airport in relation to three tweets he had posted on X earlier in the year that were said to “incite violence”. The tweets in question are understood to be:
- “If a trans-identified male is in a female-only space, he is committing a violent, abusive act. Make a scene, call the cops and if all else fails, punch him in the balls.”
- A photograph of trans-rights protest with the comment “a photo you can smell“; and
- A follow-up post, “I hate them. Misogynists and homophobes. F*** em.”
Many would agree with Linehan’s views. Many would disagree and/or find them offensive. Many would find them unnecessarily provocative. Many would have no interest.
Understandably the arrest attracted considerable criticism.
On 3 September, Health Secretary Wes Streeting came to the defence of the police saying that they were only enforcing online speech laws, and that those laws needed reviewing. This was echoed by Metropolitan Police Commissioner Sir Mark Rowley:
“…officers involved in the arrest had reasonable grounds to believe an offence had been committed….
I don’t believe we should be policing toxic culture wars debates and officers are currently in an impossible position…
…Greater clarity and common sense would enable us to limit the resources we dedicate to tackling online statements to those cases creating real threats in the real world.”
It is difficult to understand whether Mr Streeting and Sir Mark were being naïve or opportunistic, but they both have it the wrong way round. Communication offences are generally clearly worded and strike the right balance between protecting freedom of expression and public order.
Free speech has a high degree of protection. It is not a criminal offence to express controversial or even offensive opinions in the UK. Linehan’s arrest was a result of poor policing, not bad law.
When faced with allegations of this nature, it is incumbent on the police to understand what might constitute a serious incitement to violence and what is clearly not meant literally. This means police need sufficient training and/or the Crown Prosecution Service’s lawyers need to be consulted at an early stage – ideally before a suspect is accused of a crime.
Even without training, the common sense that Sir Mark refers to could and should have been exercised by his officers. It is correct that they are not expected to police culture wars: they are expected to identify serious incitements of violence.
None of this is new; it should not be challenging. The legislation was introduced by the Thatcher government in the 1980s. People have been tweeting since 2006. The temperature of the culture wars may have risen recently, but incitement to violence is not a novel concept.
In 2010 Paul Chambers published a joke tweet in response to cold weather forcing the closure of his local airport: “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”. A poor policing decision led to Chambers being arrested by anti-terror police. In Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin) the Lord Chief Justice was said to have laughed when Chambers’ barrister asked whether Shakespeare would have been prosecuted if he had tweeted his line “The first thing we do, let’s kill all the lawyers“. The common-sense decision in Chambers has provided a high charging standard ever since and in practice, prosecutions concerning tweets have been rare.
Whatever one thinks about his views or methodology, Linehan was obviously not inciting violence. His case can be contrasted to that of Lucy Connolly. At the height of anti-immigration riots in 2024, Connolly tweeted, “Mass deportation now. Set fire to all the fucking hotels full of the bastards for all I care. While you are 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”. It is important to stress that Connolly pleaded guilty on the understanding that she intended to incite serious violence. Further, the Crown argued – and Connolly did not dispute – that her case fell within the ‘high culpability’ sentencing bracket because what she had written encouraged activity which threatened or endangered life. Despite all this, certain people (many of whom should know better) have sought to portray Connolly as a political prisoner and a victim of North Korean style censorship. Ironically much of this criticism has come from the US, which is witnessing arguably the most serious suppression of free speech in its constitutional history.
A civilised country permits offensive speech, but must condemn incitements of violence to avoid civil disorder. Just in the same way that serious incitements of violence should be prosecuted, communications that are merely offensive or provocative must not be. It is incumbent on those across the political spectrum and cultural divides to recognise this clear distinction, regardless of which side of any particular debate the missive was fired from.
Linehan’s arrest, and the irresponsible comments of Mr Streeting and Sir Mark, are a PR disaster for those seeking to defend the UK’s record of free speech. Putting aside whether there should have been any investigation at all, it is not clear why anyone needs to be arrested for an allegation of this nature, let alone by armed police officers, where there does not seem to be any doubt that the suspect sent the communication in question. An arrest should only take place where it is necessary, typically to secure evidence, where a suspect is not cooperating and/or to prevent harm to themselves or others. Ordinarily, a suspect should be invited to attend an interview under caution voluntarily, in the first instance. This is before one considers whether any suspicion an offence had been committed could be said to be reasonable – also a requirement for an arrest. It is not surprising to hear that Linehan intends to sue the Metropolitan Police.
The arrest of Linehan gives bad actors something concrete to point to, but the law does not need changing – it just needs to be sensibly enforced.
This post originally appeared on the Brett Wilson Media and Communications Law Blog and is reproduced with permission and thanks