The Law shouldn’t trouble itself with trifling things
DOMINIC ADLER
De Minimis – A legal term meaning too small to be meaningful or taken into consideration; immaterial.
I try not to bang on too much about police misadventures involving freedom of speech, social media and censorship. For example, this week I was going to do a piece on Russia, or organised crime (is there a difference?). Then this story sashayed across the room, fixing me with its big blue eyes. ‘Write about me,’ it whispered breathily in my ear. ‘You know you want to.’
‘Oh, go on then,’ I replied. ‘If you insist.’
For those of you who weren’t aware, or are from outside of the UK (hola / bonjour / howdy), this is what happened; a Labour MP was recently sacked as a minister for saying nasty things about his constituents in a private WhatsApp group (disclaimer; I happen to think comments made in a private WhatsApp group, unless obviously criminal, are no one else’s business. MPs, even po-faced Labour MPs, are entitled to let off steam).
Anyway, Helen Jones, A 54-year old from the MP’s constituency, posted some harmless criticism of both the MP and her local councillors on Facebook. Personally, I see this as a civic duty rather than an infraction. A couple of days later, two officers from Greater Manchester Police knocked on her door. Ms Jones, said;
‘I asked the police officer, ‘Have I committed any sort of crime? Why did you call at my door? They (the police) said, ‘Someone has spoken to us about your social media posts.’ I then said, ‘If I don’t take your advice and continue doing what I am doing, will I be committing a crime?’ He said no. I then asked. ‘What will you do about it?’ He said, ‘There’s not a lot we can do, we are just giving you advice’.’
Huh? ‘Advice’? Ms Jones was simply critical of a politician. No threats. No abuse. Nothing. It was, apparently, being investigated as a case of ‘harassment.’ It was, unambiguously, not a matter of police concern. And so I considered opining on the wider role of policing in a liberal (ha ha ha) democracy. I’d muse on freedom of speech. Maybe, I add a little jurisprudence for context.
Then, I thought, bollocks to all that.
It doesn’t matter if what happened to Helen Jones was an isolated incident, or a mistake, or a brain fart. It’s indicative of a wider problem, one steadily eroding whatever trust British people have left in the police. So he’s my (less prosaic) take on the subject.
I’ll mention my bona fides; I’ve accumulated quite a few newer subscribers who might not know. During my time as a police officer, I spent a decade in Special Branch at New Scotland Yard. Our work included investigating race hate material and political extremism. Then, later in my career, I worked monitoring online extremism and terrorist-related material. I was a covert internet and SOCMINT / OSINT (social media and open-source intelligence) investigator. So I’m familiar with UK public order and terrorism legislation both on and offline. Oh, and I’ve also investigated humdrum, workaday crimes, both as a uniformed officer and a detective.
So, to business: how on earth do police end up concerning themselves with stuff like this?
I’ll explain the technical side of things, not least to dispel a common misconception; that police stations have dedicated units scouring the internet for this kind of thing (they don’t, although the civil service appears to be heading in that direction). I’ll also mention how the Home Office Counting Rules and performance metrics led to the death of police discretion, making situations like this possible. Don’t think, however, I’m making excuses. I’m simply providing context. The biggest problem, as ever, is a failure of leadership. For Chief Constables (in this case the allegedly ‘no-nonsense’ boss of Greater Manchester Police, Stephen Watson), to say ‘get a grip.’
Okay, it’s Monday morning in a typical British CID office. A detective sergeant logs onto his computer to triage a mountain of fresh crime reports. He doles them out to his officers. Remember, during the past fifteen years, the UK police service has been decimated by cuts. Many cops have less than four or five years service, including detectives. They’re inexperienced and require mentoring / spoon-feeding. Furthermore, its not unusual for a detective to be juggling upwards of thirty-odd investigations at any given time. I knew of one dealing with fifty.
In cases like Helen Jones’s, the allegation was made by a member of the public. The vast majority of these bullshit cases are the result of people complaining to police about being ‘offended’. Bless their cotton socks. Now, back in the day, the crime desk sergeant (or indeed, the reporting officer), could declare a vindictive, vexatious or time-wasting allegation LOB (a load of bollocks). Then they’d ‘No Crime’ it, meaning no further action to be taken. Yes, there were guidelines, but there was discretion too.
This system was obviously open to abuse; crime stats were ruthlessly gamed for performance reasons. They still are! All performance regimes will be, and are, gamed. This is Adler’s Law of Policing No. 2 (No. 1 is all politicians lie about police numbers). The problem being current recording systems are so onerous, police now take much longer running around and closing LOB investigations. Investigations which, once upon a time, would be simply written off.
The fact is this; if an allegation is made, whatever it is, the allegation has to go through the system. It’s a classic case of ‘computer says no.’ Commonsense? You’re joking, right? Ethics and propriety? Ha ha ha. No political ‘third rails’ were hit in Ms. Jones’s case.
The allegation of ‘harassment’ made against Helen Jones would have gone through this gloomy, Soviet-style process. The days when a gnarly old DS might say to a complainant ‘look, snowflake, man up. I’ve got robberies to solve,’ (or words to that effect) are long gone. Instead, the public is now required to complete a passive-aggressive online questionnaire to be told no, the police can’t investigate your stolen car because there’s no named suspect.
Aha!
But someone calling with a named suspect? Like Mrs. Helen Jones, aged 54, accused of online harassment? Hey, that’s an investigative hook. You WILL deal with it (because the Home Office, nationally-mandated rules say so and they are carved in stone). Somewhere, a box is ticked.
How the mighty have fallen. You join the Old Bill to lock up burglars, robbers, bullies and rapists. Not deal with utter, utter bullshit like this. I also remember being taught the principle of de minimis – which I chose as the title of this piece – during my police training; ‘The Law does not concern itself with trifling things.’
Someone urgently needs to remind Greater Manchester Police.
I also suspect there’s something else at play – the recent concern over the safety of UK Members of Parliament. This is justified. MPs routinely receive death threats and abuse. Some have been assaulted or even murdered by extremists, for simply doing their job. Greater Manchester Police mentioned such concerns in this case, so I wouldn’t be surprised if this was a factor; a knee-jerk, ‘let’s be seen to be doing something’ response. A senior officer can report, ‘we investigated ‘X’ number of cases, spoke to ‘Y’ number of people and made ‘Z’ amount of prosecutions.’ This how they think. I’ve seen it for myself. What looks like action at a Gold Group is, in reality, a bloke knocking at a door.
Helen Jones’s door.
Which brings me onto my next point. Police officers, for a variety of reasons, sometimes fail to understand how the process is the punishment – especially for otherwise law-abiding people like Helen Jones. Most coppers, because most investigations are mundane, seldom give this enough thought.
I’ve been guilty of this myself. For example, I worked on the News International case in 2012/2013. I saw how journalists, against whom no action was ultimately taken, kicked their heels on bail-induced purgatory. Essex Police’s investigation into the journalist Allison Pearson was instructive too – I will admit to underestimating how deeply affected she’d be by the spurious allegations made against her. Even an ex-copper like Harry Miller admitted he was seriously troubled by the process. And he won a resounding victory in his case.
The police, at senior levels, need to take a long, hard look at this issue. Such investigations should be a carefully considered exception, not the rule. Chief officers have spent too long pandering to fashionable politics and ignoring the wider public. They’re victims of institutional Stockholm syndrome, in thrall to activist hostage-takers who despise them.
Which, I think, is the story of 21st Century politics in general.
Of course, police officers are obliged to follow lawful orders even if they strongly disagree with them. I know I have – for example, I found the law around low-level cannabis possession pointless, ditto more than a few chickenshit traffic offences. I enforced them anyway, because that was the deal and I was a street-level grunt. You can’t have law a la carte. You can have discretion, though. This is subtly different and probably deserves an article of its own.
Nonetheless, what happens when a police officer is ordered to carry out duties he or she finds utterly ridiculous or morally abhorrent? The answer? Tough shit. It’s a lawful order.
The copper who spoke to Ms. Jones sounded embarrassed. I’m fairly confident he didn’t sign up for this nonsense when he joined.
It’s a clear case of de minimis.
There’s no mechanism for officers to object. It’s unlawful for UK Police to be unionised. There’s even a criminal offence of causing disaffection among police. It’s possibly why the ethical dimension around, for example, the dubious legality of Non-Criminal Hate Incidents is ignored by chief officers and the crapulous College of Policing. An officer who refused to investigate a case like Helen Jones’s? They’d be disciplined. Possibly, even, lose their job.
There are examples of officers asking to be excused certain duties for religious and political reasons – religious groups having influential lobbies both inside and outside of the police. I wouldn’t dream of positing an in-house lobbying group staff association for officers who believe in, for example, freedom of speech. That might be causing disaffection and I wouldn’t want my collar felt. Stranger things, clearly, have happened.
I do wonder what would happen if an officer argued the toss about the status of NCHIs, or the proportionality of harassment allegations like those made against Helen Jones? Perhaps one of our many excellent Human Rights lawyers might take a view. I know there only seems to be criminals and terrorists queuing at that cab rank of theirs, but why not try another flavour?
Usually, at this juncture, I offer solutions. In this instance, I’m not sure if there’s much point. You see, I have solutions but not solutions. The answer to the Helen Jones Dilemma (as I have now christened it) seems relatively simple;
- Accept, institutionally, the concept of ‘offence’ has been weaponised into spiteful, everyday lawfare.
- Adjust the threshold – dramatically – for when words and opinions become assaultive. This means overhauling creaking, pre-internet legislation such as the Public Order Act 1986 and awful, post-internet legislation such as the Equalities Act 2010.
- Dramatically restructure performance systems for recording police activity; they’ve resulted in a regime of bureaucratic authoritarianism.
- Reroute a six-lane motorway through the College of Policing and demolish the place. Never, ever, rebuild it. Salt the earth where it stood. Sprinkle the site with holy water. Ditto the Home Office.
Now, that’s all relatively simple, when you think about it (apart from 4, which was self-indulgent but satisfying). After all, we’re about to hastily rewrite our entire national foreign and defence policies. The world changed overnight.
But it simple things are never simple, are they? Look at the pygmies in charge and ask yourself; are they up to the job?
As you’ll know if you read my stuff, I’m hardly a police shill. Nonetheless, I’m compelled to defend the average copper, even those sent to knock on doors with LOB enquiries. Cases like Helen Jones’s betray every act of bravery and decency performed by front-line officers. So, please, send a message to your local chief constable or PCC.
It should be two words only.
They’ll probably not understand, so they’ll have to look it up; De Minimis.
This article (De Minimis) was created and published by Dominic Adler and is republished here under “Fair Use”
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