Woke police: Bad judgement—or bad law?

This article is about the repercussions of the arrest in Hampshire filmed by Laurence Fox in late summer, but it commences with a brief podcast by the author about two arrests in early October that caused similar scandal: one in Cheshire and one in Surrey.

On Thursday 28 July 2022, Laurence Fox produced some wobbly-camera, grainy-resolution footage of Hampshire police officers detaining a man outside his house. A 30-second clip of his coverage of the arrest of Darren Brady has been viewed several million times (shown on UK Column News of 5 August 2022 at 27:10), and this has caused a thin slice of the new media to jump up and down and a rather thicker slice of the population to spit feathers, for one reason or another.

Fox is the founder and frontman of the new Reclaim Party, and he cites his own efforts at ‘challenging the woke orthodoxy’ as the touchpaper that lit the Reclaim fire. If you have not seen the video, it is anchored around the moment when a police constable explains to Brady that he has been arrested because ‘someone has been caused anxiety based upon your social media post’. At first—and second—glance, this appears to be the result of a world gone bananas; a politicised police force; and a smothering under the increasingly dense blanket of woke.

In a way, each of these conclusions may be right; but what happened, how on earth did we get to this point, why does it matter and what can be done about it? These are each whopping topics in their own right and this article is not to be a defence of the actions taken by police, but rather an explanation and analysis of the backdrop to a situation that satisfies none. Due to its filming and promulgation, there has been a sensational reaction to the arrest of Darren Brady; and this makes it a useful vehicle in which to explore the bizarre confluence of legislation, policy, culture, media and spinelessness.


Him today, you tomorrow

The public should be empowered by understanding how this can happen, because the reality is that laws exist that almost anyone may fall foul of. There are, first, a few things to set straight. Arrests of this nature are not new, they are not exclusive to Hampshire, and to suggest that a bunch of woke coppers purposely pounced on a salt-of-the-earth, well-meaning Army veteran is to obscure the truth.

The fact that Brady was a soldier should be neither here nor there, though I will come back to that later. Any suggestion that he should be afforded treatment different from that given to anyone else because he has put himself in harm’s way is a dangerous one. The big questions are, when considering the options open to Hampshire Police, why was Darren Brady arrested, and how is this reconciled with the notion of policing by consent?

Rainbow swastika as posted by Laurence Fox
Rainbow swastika: the reason for Darren Brady's arrest

The social media post which is reported as having caused anxiety is the above image. It is a collage, made up of four identical reproductions, each with a quarter-turn from the last, of the ironically-named Progress Pride Flag. London’s Victoria and Albert Museum, which hangs one such flag in its Design 1900 – Now gallery, quotes its designer, Daniel Quasar, as saying:

This new design forces the viewer to reflect on their own feelings towards the original Pride flag and its meaning, as well as the differing opinions on who that flag really represents, while also bringing into clear focus the current needs within our community.

Quasar is a non-binary individual who demands to be addressed by letters that are not pronouns, so it should be notable that he wants his design to ‘force’ people to do certain things in their own minds.

Amusingly, in light of this most recent explosion of indignation, he had also said:

I love seeing anyone using the flag in a way that makes them happy and proud to be themselves.

I cannot know the minds of Laurence Fox or Darren Brady, but I am fairly confident that that is precisely how they have used it. Nonetheless, the point here is that the involvement of the flag itself, the various political agendas it represents, and the shapes it has been made to create, are only part of the reason that what has been alleged can amount to an offence.


Guilt in English law

Hampshire Police stated that they arrested Brady under Section 127 of the Communications Act 2003, and this is where the muddle begins. At the time of drawing up that legislation, a social media platform—being a fairly new-fangled monster—was referred to by parliamentary clerks as a ‘public electronic communications network’. To be considered guilty of an offence under this section of the Act, a person must have done one of two things. He must either have sent a message ‘that is grossly offensive, or of an indecent, obscene or menacing character’, or must, ‘for the purpose of causing annoyance, inconvenience or needless anxiety to another’, have sent a message that ‘he knows to be false’ or ‘persistently make use of a public electronic communications network’.

There is a key distinction between the two separate actions criminalised by Section 127. In the first, the potential offender must post a message, though there will not be a specific or identifiable recipient. (In old money, this is akin to some of the daft provisions in the Public Order Act 1986, where a poster placed in a window facing the street may offend a viewer in that street, but the same poster placed on a side window and viewed by a neighbour from inside their home may not cause offence.) In the second action, there must be an intended victim, or victims, as there is reference in the second offence created by Section 127 to the intent to cause a particular reaction from ‘another’. (One does wonder which wag at Westminster inserted the word ‘needless’ before ‘anxiety’, as this is one of those rare situations which does not absolutely require that adjective.)

If you have leapt ahead of this 2003 legalese, and you as a person in 2022 understand how ‘public electronic communications networks’ function, you are probably wondering what the policeman was talking about. If Brady simply posted the colourful picture—which means it is despatched into the social-media ether, but to no specific recipient—then, in effect, nobody has any business being caused anxiety by it, as nobody meets the description of ‘another’ within the meaning of Section 127.

On the other hand, if the picture is being considered ‘offensive, indecent, obscene or menacing’ in a general sense, but not by any specific individual, then any related anxiety is merely incidental (which would also entail that Fox himself would qualify as an immediate suspect, though the police officers studiedly ignore him in the arrest scene).

These distinctions matter. For a criminal offence to have been committed, all parts of the relevant legislation must be met (the elements are cumulative). These are referred to in the enforcement of English law as ‘points to prove’ and, if they are not satisfied, then the offence is not complete and charges must not be pressed. In technical terms, a complete offence (in all but a tighter category known as ‘strict liability offences’) requires the offender to have demonstrated both actus reus (a guilty act) and mens rea (a guilty mind). This means the person who conducted the apparently guilty act must also have had a determination to hurt, which is not as straightforward as it sounds to argue in court. A person shoved by another through a shop window, smashing it to smithereens, will have broken it, undoubtedly; but he will not have demonstrated the requisite mens rea to prove criminal damage.


Weighing hurt in the balance

Proving the intent of the suspect, as you would imagine, is nearly impossible in very many situations. Suspects and their legal representatives are more adroit than ever when it comes to gaming the system; just another nail in the coffin of the criminal justice system. The search for intent is managed by an examination of the considerations that the suspect will have made about the likely consequences of his actions.

Therefore, Darren Brady may well say that he posted this image with no specific intent to harm anyone and that he does not consider it to be offensive; yet, when asked at interview what the effect may be on other people, he would be hard pressed to make out convincingly that he hadn’t noticed the prominent ancient Eurasian geometric shape in the middle of it, the same one used by the Third Reich nearly a century ago.

If he had spotted the swastika and the post was intended as a point of socio-political critique, then he is still done for—by the legal nicety of the distinction between tangible and intangible harm. Namely, if you try to break someone’s leg, and succeed, you will be treated differently than you would if you broke someone’s leg accidentally. When it comes to hurting someone’s feelings, the law does not afford you such privilege, because the harm is intangible (you cannot touch or see it).

Why, then, was Hampshire Police involved in the first place? In our day, almost all police activity is reactive, rather than proactive; that is, police deal with incidents that have already happened, as opposed to preventing them from taking place. Broadly speaking, there are two ways in which the reactive policing of incidents takes place. Either—and this is what happens most commonly—a member of the public will get in touch with police with a particular concern, or a police officer will already be in a location as a situation develops (which happens more regularly than you might imagine). It is worth pointing out here that only about a quarter of police time is spent dealing with criminal activity.


Police obliged by policy to be credulous

As soon as such an event presents itself, an incident log is opened, with a unique incident number. This is managed by a Force Control Room, typically operated by civilian police staff and managed by a small number of police officers. For Darren Brady to have received any attention from the police, someone will have had to get in touch and express the anxiety that they had been caused. (If they used the actual noun ‘anxiety’ in the report, which is a possibility given that the word was used by the police attending, then the complainant will have been well up on the system.)

At this stage, even if the caller himself does not know whether an offence has been constituted, the incident or victim will have to be attended by officers, whose job it is to determine what has happened. It is, then, central to this débâcle that this is an age of reactive policing, and it illustrates well how the agitating sectors of the public can fashion their police forces into great big woke brooms, sweeping away the undesirables. A truth magnified by social media, in particular, is that those who shout the loudest will receive the most attention.

At the next stop—that of evaluating what the officers attending have determined—the Home Office and Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS) have joined forces to make the world a worse place. Neither of these executive departments may constitutionally command English constabularies, but both contrive to set policy for them.

A very generous helping of the benefit of the doubt would make us the Home Office Counting Rules (HOCR) seem well-intentioned but astonishingly naïve. A more frank appraisal would rate them as diabolically stupid and almost purpose-built to waste police time and to give malevolent agents a free hit.

This is because, in aiming to be ‘victim-oriented’, the rules, which give that nowadays ubiquitous thing, guidance, on the recording of crime, ‘oblige the police to accept what the victim says’—even if they refuse to give personal details, even if they are certain they do not want the matter taken any further, and even if there is no chance of proving the allegation. I do not mean to dismiss these mitigating criteria out of hand; there are offences reported to police by people who would compromise their own safety by moving along that route to press charges, and many who have taken the police into their confidence have been left disappointed and worse off than before.

In an age when few people are far from a communications device of some sort for more than a matter of minutes at a time, encouraging the public to bring entirely subjective concerns to the attention of police is asking for trouble. The sheer volume of live incidents that Force Control Rooms manage now, compared with twenty or thirty years ago, is vast. This is not because of outright lawlessness or the inevitable consequence of an epidemic of mental health crises. It is the combined result of arming everyone with a mobile telephone, isolating the lonely and vulnerable, and removing police from the communities they used to know.

The sorts of neighbourly, domestic or family disputes that were previously resolved with time, tea and temperance are now immediately called in to 999, mostly inflaming the situation. Officers dealing with these incidents are increasingly unlikely to know the participants even by social reputation, thus reducing their chances of being seen as anything other than an aggressive interference brigade clad in hi-vis. Now, it is not just the police that do not know the alleged victims and suspects; often, the alleged victims and suspects will even be strangers to one another.


When to nick

The process of arrest is a much more serious matter than its frequency would suggest. It involves the suspension of liberty and it really should be a last resort. There are situations in which arrest most certainly is the appropriate and correct course of action; but these are where genuine concerns about physical safety and loss of evidence are undeniably present. If the situation does not merit arrest, a suspect should be invited to a police station for a voluntary-attendance interview. The nature of the offence should be commensurate with the treatment of the suspect at the point of arrest.

From what is known of the Brady affair, he presented no physical threat to the victim or to the attending officers, nor to any passers-by. A reference was made to ‘anxiety’, but there does not appear to have been any suggestion that Brady made any threats of a violent nature. Yet Hampshire Police show him to Fox and the world in handcuffs.

Hollywood and its British dramatic counterparts may suggest that handcuffs always follow arrest, but this is certainly not the case. Not only is Brady in handcuffs, but he wears them to the front. Unless it is physically impossible to handcuff a suspect to the rear, there is no justification whatsoever to handcuff to the front.

There are two very good reasons for this. Firstly, the handcuffed individual may continue to use his hands to discard or conceal evidence, or to make the sort of mischief which would be impossible with his hands in the small of his back. The other reason is that he may easily pick up a weapon or simply attack the police officers in a double-handed fashion, and there are too many body-worn video clips of exactly this happening for this poor practice to persist. Either there is a risk of violence, or there is not.

The Police and Criminal Evidence Act 1984 (PACE) sets out, very clearly, the two elements which must satisfy a lawful arrest. The suspect must have been involved in, attempted to be involved in or suspected of being involved in the commission of a criminal offence; the reasonable suspicion threshold. On top of this—and most pertinent to the actions of Hampshire Police—there must exist the belief that the arrest is necessary.

What follows is woefully dry material, but there is a limited and prescribed number of necessities for arrest. Which one of these PACE criteria do you think would apply to Darren Brady’s arrest?

  1. Ascertain a person’s name
  2. Ascertain a person’s address
  3. Prevent injury, damage, indecency or obstruction
  4. Protect a vulnerable person
  5. Ensure a prompt investigation
  6. Prevent a suspect from disappearing

If none of these jumps out at you, then you are halfway to becoming a sound Custody Sergeant. Thus, based on what Fox has produced, there is no way that custody of Darren Brady should have been authorised, as there really was no necessity for arrest. It must be noted that there is no paperwork or delay to the process of de-arresting a person. You simply tell them they are no longer under arrest, and you let them go.


Sir Robert yet lives

Now, it is time to take a look at the Peelian Principles from 1829. Dusty, but by no means obsolete, these should still form the cornerstone of police legitimacy in England and Wales. Without a souped-up DeLorean on hand, it is hard to compare the 1820s with the 2020s; as immortalised by L.P. Hartley, ‘The past is a foreign country; they do things differently there’.

Yet the dividing lines across British society today make the second of the principles a tough line to walk. ‘The ability of the police to perform their duties is dependent upon public approval of police existence, actions, behaviour and the ability of the police to secure and maintain public respect’, is how it reads, and the rest of Peel’s principles are shown below. That respect should come into it seems anachronistic, as there is slim to none now, even from those that appear to support the police.

Peel's Principles

Now, back to the concerns that those that shout the loudest get their way, and to Brady’s politically emotive status as a veteran. Regular viewers of UK Column News will remember Katy-Jo Murfin’s video report (2 May 2022, from 35:15) and subsequent article on the arrest of another veteran, Danny Glass. In amplifying Katy-Jo’s analysis, I commented that one could scarcely imagine a climate change activist being treated in this manner.

This is the nub of it. It is explicitly set out that not all incidents or even offences need to be investigated. Then, by extension, not all people need to be followed up on. The police may pick and choose; and, before you turn your nose up in disgust at the thought that crime may be ignored, consider the policing of the Coronavirus Act 2020.

When the legislation was created, it was made very clear to the Chief Constables of all English and Welsh police forces, by means of a House of Commons Library publication, that how to deal with it remained an operational decision. This meant that a Chief Constable may decide whether or not to police it at all and, if he so chose, how to police it. At the time, all 43 forces were overstretched, under-resourced and falling short of basic performance targets.

Nonetheless, all 43 Chief Constables decided to police the Coronavirus Act and to attempt to criminalise those that fell foul of it. Quite apart from this being an operational decision that was—and remains—almost impossible to justify, there remains absolutely no evidence that such policing made any (positive) difference to the health of the nation.

I would go so far as to say that, in policing it, those Chief Constables add their names to the long list of people who caused an enormous spike in the lockdown deaths of the elderly and infirm in the spring of 2020. It might make sense that it is the police who decide what to police and what not to police, but the influences on this decision-making process are what one must be wary of. Like the upper echelons of most organisations, the top brass of all police forces are terrified of being struck by the extendable baton of Woke. The very force in question here, Hampshire, admitted as much in the training policy reversal implemented just weeks after Brady’s arrest.

Put simply, police will get more grief for letting memes sit on the internet, from more indefatigable and verbose echelons of society, than they will for consistently failing to prevent and solve burglary. Undeniably, this is because of the nature, the tendencies and the allegiances of the victims, not of the offences.


The bar room of society

With this in mind, take a look at the fifth Peelian principle above. It does not really need any comment. Another fail by Hampshire Police in this case.

As I noted at the outset, the content of the image posted by Laurence Fox and Darren Brady is only a part of how an offence can be contrived from the response. As far as the legislation is concerned, I consider the internet to have the characteristics of the world’s largest pub. The trouble is, in this pub, you can overhear anyone’s conversation—should you so choose. In some situations, it might be a bit hard to ignore, as though there was a party bawling at the next table; but in others, it could be hushed dialogue behind a bookcase and a few rusty brewing implements.

Though the analogy may seem flippant, the point is that you have to go out of your way to be offended on the internet. Looking at an arrangement of colourful flags on a screen will never be the same as someone marching up to your table with the offending items under their arm, knocking your pint over and unfurling them in your face. Despite the direction in which traffic on electronic devices is going these algorithmic days, it is still the viewer that chooses what to look at, most especially on these ‘public electronic communications networks’. Had Darren Brady sent this image directly to a person or persons online, in order to elicit a particular response, it would be a different matter; but it does not seem that he did. It’s called a retweet.

Remarkable as it may seem, English law does allow for a person to choose to look at something online—when there was no obligation to do so; then to decide that they have been harmed by it; and then to expect the full support of the police once they report the effect it has had on them. Ensuring that genuine victims of crime are looked after appropriately is right and proper. Rolling out the hurt carpet for them is not. To return to sticks and stones for a moment, the Public Order Act 1986 refers to a ‘person of reasonable firmness’ in its description of the physical offences of riot, violent disorder and affray (older English criminal charges which the 1986 Act was reviewing).

The reason for creating this hypothetical bystander is to establish a benchmark with regard to what may cause someone to ‘fear for his personal safety’ (not a pronominal clause that Daniel Quasar is likely to approve of). In other words, when it comes to harm or the threat of harm, the law may say, ‘Pull yourself together’, or perhaps even, ‘Pull yourself together, man’. You do not have to be particularly aged to recall police saying this to members of the public on occasion.

Unfortunately, that is where the pump that formerly dispensed good sense broke. Now, we are left in this chaotic state where people may self-victimise. What may have once been called an argument may now be cast as harassment, what may once have been called a flyer may now be prosecuted as malicious communications; offences under their own respective Acts of Parliament.


Law to fit feelings

The churning-out of legislation which must be interpreted so terribly subjectively is just part of the problem. Police are duty-bound to make at least an initial investigation of reported harm from communications. The so-called ‘victim-oriented’ approach means that any knee-jerk and hysterical reporting of a potential crime is likely to result in the ‘victim’ being given the impression that something will actually happen. In reality, the outcome for this histrionic type of ‘victim’ is usually terrifically disappointing.

The so-called investigation of such an offence can drag on for months, because it can never be treated as a priority. It will almost always involve an intrusive trail through all the mobile telephone data of both suspect and victim, which frequently reveals that they have both thrown electronic punches of a sort.

Often, if a suspect has been arrested, restrictive bail conditions may be imposed, which will increase the likelihood of further problems in the communications sphere, or even violence. If ever the offender is charged and does actually have his day in court, sentencing is probably meaningless, and certainly incapable of improving the lot of the victim, the offender or society.

Bearing in mind the tendency towards negative outcomes, it might seem better if the victim were shown another path, regardless of whether the initial allegation was genuine or cynical (and there really are a lot of the latter). This is where the aforementioned HOCR leaps out of the bushes, assailant-like. Since the allegation is to be believed, it is almost guaranteed that the supposed offence can be made to fit some particular piece of legislation.

So, if it is a recordable offence, then a crime report will be raised. This needs victims, suspects, witnesses, a modus operandi, endless letters to victims with QR codes on them—and, most importantly, a risk assessment. For, without the constant appraisal of risk, nine-tenths of a police officer’s workload would evaporate. This is hyperbole (just), but it is the element of risk that jams the gears.


Police’s future in our hands

For a criminal case to proceed to court, there must be a realistic chance of prosecution, because the threshold is so high. Yet the scales which should balance ‘risk’ with the countervailing condition ‘beyond all reasonable doubt’ need calibrating, which takes a cool head. So averse to risk have police become that simply closing a crime report which it is already obvious can never result in a positive outcome for the ‘victim’ can prove to be a considerable undertaking. A police constable—the rank of policeman who will typically be investigating the crime—will need the report closed by his senior, a sergeant.

Sergeants have become very particular about making sure their posteriors are covered before they take anything resembling a decision. This is not so much because there is any current risk, but more to do with the possibility that something could happen which police appear to have failed to address. This causes stagnation and poor treatment of victims, who tend to believe that police time spent equals progress when, in reality, it means dithering and the inability to shoulder responsibility.

It is a very wide combination of factors and influences that have positioned the police as an apparent guardian of the forces of woke, though it has certainly not happened by chance. Moral cowardice and self-preservation in the hierarchy accounts for a lot of it. Ultimately, though, society gets the police force it deserves, or it deserves the police force it gets. If what you have read so far strikes a chord, have you remained silent on the matter—or have you taken it up with your local force, your Police and Crime Commissioner, your MP or the Minister of State for Crime and Policing?

Naturally, the majority of police officers believe they are doing the right thing; that is how conditioning works. It is the decision-makers set above them who need to see their grand desks creaking under the weight of overflowing in-trays. It may sound trite, but the constables who attend the public are our police, and it is for us to decide upon what is, and what is not, a legitimate use for them.