It was my dad who brought the video to my attention, and he could barely contain his disgust at what he had just witnessed. The video in question showed a group of people on Guy Fawkes Night burning a large model marked “Grenfell Tower” over a bonfire in what looked to be someone’s back garden. The creator(s) of this Grenfell Tower model had constructed it in disturbingly and sadistically vivid detail, with cutout figures placed in the windows, some of which appeared to have been coloured brown for supposed racial authenticity. If that wasn’t enough, the onlookers heartlessly mocked the victims of this tragedy, by saying “help me, help me!” and “jump out of the window!” To a fit of hysterical laughter, one person pretended to be a firefighter and said “stay in your flat, we are coming to get you!” Another person, in an apparent racist comment referencing a Muslim woman in a burqa, said “that little ninja’s getting it at the minute!” which provoked an equally abhorrent response from another onlooker, who replied “that’s what happens when you don’t pay your rent!”
The video was originally shared privately between those involved on WhatsApp, but it soon made its way onto mainstream social media where it was destined to become viral, and it was met with a tidal wave of condemnation from all sectors of society. Politicians and celebrities queued up to express their condemnation at what was collectively described as a vile, sickening, disgusting, and unacceptable in any society which calls itself tolerant, but stopping short of labelling the incident as a crime. James Brokenshire, Secretary of State for Communities, in an official government statement, said “the police have been made aware of this video and will work to establish whether any offences have been committed”, and Metropolitan Police Commander James Cundy, who is leading the criminal investigation into the Grenfell Tower fire, issued a statement appealing for anybody with information about the video and the people involved to come forward. So was the burning of a Grenfell Tower effigy a crime?
To disrespect those who lost their lives at Grenfell Tower, as well as their families and loved ones, is utterly unacceptable. https://t.co/i4PeM2cGBd
— Theresa May (@theresa_may) November 5, 2018
The Metropolitan Police seem to think so. Five men in connection with the video handed themselves in and were subsequently arrested on suspicion of a public order offence and taken into custody. The Public Order Act 1986 states that “a person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, they use threatening or abusive words or behaviour, or display any writing, sign or other visible representation which is threatening, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. This raises a number of questions in relation to this specific case. Does the visual representation of a burning Grenfell Tower effigy constitute a threat which would cause harassment, alarm or distress? Was this done with the specific intent to cause harassment, alarm or distress? As reprehensible and morally repugnant as many of us find their actions to be, answering yes to these questions might be considered a stretch. Additionally, according to the Public Order Act 1986, there are two defences that can be made against a charge of a public order offence, both of which are relevant to this case. The first is that the people involved in the burning of the Grenfell Tower effigy had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress by their actions, especially as it took place in the privacy of someone’s back garden. The second is that of reasonable conduct, although this seems more open to interpretation.
I think it sets a dangerous precedent to criminalize offensive speech and expression and impose ever-increasing restrictions on our ability to speak, think, and express ourselves freely. It’s incidents like the burning of a Grenfell Tower effigy which speak to our emotional side, which wants to see people punished and their actions criminalized, but we rarely stop to think about the long-term consequences of taking this course of action, especially given that it might one day be used against us. In common law we already have legitimate and necessary limitations on freedom of speech and expression, like shouting fire in a crowded theatre and incitement to violence, but beyond that we should exercise extreme caution in placing limits and regulations on speech and expression which might be considered offensive or hateful, and to whom we give the responsibility of defining what is offensive and hateful. When it comes to the question of whether something offensive is a crime, perhaps we should leave it to the court of public opinion to decide.