I am going to break my cardinal rule and offer comment on a legal case without having read the judgment or sentencing remarks. My excuse is that the case in question was a guilty plea at Dudley Magistrates’ Court, and my exhaustive research suggests that the District Judge has not followed the modern fashion of making his sentencing remarks publicly available. Therefore it is armed only with what I accept at the outset are (inevitably) incomplete media reports that I step up to bat for Paul Gascoigne.


Gazza yesterday, on the day of trial, pleaded guilty to what was widely reported as “racially aggravated threatening or abusive words or behaviour”, which I assume to be a reference to an offence contrary to section 31(1)(c) of the Crime and Disorder Act 1998. This law provides for a racially aggravated version of the offence of using threatening or abusive words or behaviour, or disorderly behaviour, within the hearing or sight of a person likely to thereby be caused harassment, alarm or distress (section 5 of the Public Order Act 1986).

The facts, as reported, are that Gascoigne, while presenting “An Evening With Gazza” at a venue in Wolverhampton, said to a black security guard working at the show and standing in a dimly lit part of the auditorium, words to the effect of, “Can you smile please, because I can’t see you.” The audience were understandably unimpressed at this unwitting spontaneous tribute to Bernard Manning, and several walked out. The guard, for his part, felt sufficiently upset by what he perceived to be an attempt to humiliate him in front of a large audience to contact the police. A remorseful Gazza told the rozzers that he didn’t mean to upset the target of his quip, but it was too late – cue a decision to charge Wolverhampton’s newest failed comic under the legislation above, and, ultimately, his guilty plea, criminal conviction and sentence.

It is undeniable that what Gascoigne said was offensive. It is wholly understandable that his manifestly unfunny joke based on the race of the blameless security guard would have caused the man significant embarrassment (although, for context, the £1,000 compensation he was awarded by the court for his hurt feelings is the maximum that a victim of a moderate sexual assault could hope to receive from the Criminal Injuries Compensation Authority). One cannot ignore the cultural and historical context of such remarks, redolent of an era when marking the otherness of minority racial groups was not merely a source of ribaldry but a necessary precursor to normalised discrimination and violence.  As the District Judge said in terms when passing sentence, Gascoigne’s comments – and the suggestion advanced on his behalf in mitigation that such bantz are standard fare in football dressing rooms – betray an attitude ill-fitting with the progressive 21st century.

But – but but but but – it is not a criminal offence to hold or display attitudes ill-fitting with the progressive 21st century. It is not a criminal offence to give offence. It is not a criminal offence to tell bad jokes. Even racist jokes. And the application of the law in this case causes me some concern. Not least as the Judge, if his comments have been reported accurately, appears to himself have misunderstood the scope of the legislation. “As a society, it is important that we challenge racially aggravated behaviour in all its forms,” he observed. Which as a meme, is fine. But as an authoritative statement of law is simply wrong. “All forms” of “racially aggravated behaviour” are not prohibited by law. By social codes and contemporary standards of decency, yes, but the particular sanction of the criminal law is reserved for contraventions of accepted norms that Parliament deems sufficiently serious for the state to mark through impinging upon individual liberty.

The legislation sets out the conduct that carries the unique stigma of a criminal conviction. An offence under section 5 of the POA 1986 is itself a dubiously-deployed law, often the tool of first resort of police officers faced with low level disorder, but even its broad scope is limited as follows. To commit an offence, a person has to do two things:

  1. Use threatening or abusive words or behaviour, or disorderly behaviour
  2. Within the sight or hearing of someone likely to be caused harassment, alarm or distress.

After much effort by free speech campaigners, this law was modified in 2014 so as to remove the reference to “insulting” words or behaviour. Insulting someone is no longer a crime. To trigger section 5, your words or behaviour must be abusive or threatening, or your conduct disorderly. On the available information, we can discount that Gascoigne’s words amounted to threats or “disorderly behaviour”. Which leaves us with abuse. It is ultimately a matter of fact for a court whether words are abusive, but given that there is an explicit distinction between abusive and insulting, the former must amount to more than the latter. You can insult someone without being abusive. You can offend someone without being abusive. You can be unpleasant, without being abusive. You can, as the legislation provides, threaten someone without being abusive. And you can display racist views, without being abusive. You can, for example, posit in a lecture theatre that a certain race is genetically inferior, and politely or jovially back this up with cod science and debunked theories off the internet, causing all manner of offence, without being abusive. I labour the point, but it is important, because as offensive, insulting, demeaning, humiliating and upsetting as Gascoigne’s off-the-cuff remark may have been, categorising it as “abusive” does not, in my mind, work. There are words for what this was, but “abuse” isn’t one of them. “Abuse” contemplates a measure of ill-will; or as Merriam-Webster has it:

“language that condemns or vilifies usually unjustly, intemperately, and angrily”.

It is difficult to see how this applies to the reported conduct. And this leads into a second issue arising from the legal definition of “racially aggravated”, as provided by section 29(1) CDA 1998. Prohibited conduct is “racially aggravated” if:

(a)at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial […] group; or

(b)the offence is motivated (wholly or partly) by hostility towards members of a racial […] group based on their membership of that group.

In other words, there must be either objectively demonstrated hostility, or a subjective hostile motivation behind the offence. And again, I accept that something may have been lost in reporting or translation, but an offensive joke from a performer towards a person in an auditorium, based on race or otherwise, would not ordinarily be an automatic indicator of hostility. It can be, and much depends on delivery. But hostility is difficult to infer from what we have been told. Again, I emphasise, there is a distinction between expressing racist views and doing so with hostility. Both are socially unacceptable. Both are ripe for mockery, condemnation, shunning and re-educating. But only the latter brings the might of the state to bear upon an individual.

Gascoigne, by pleading guilty on the day of his trial, is deemed to have admitted that his conduct was both hostile and abusive, and he will no doubt have been fully and competently advised by his lawyers that he should not plead guilty unless he accepts those elements of the Crown’s case. But people do plead guilty for various reasons, not least the desire to avoid the stress or public exposure of a trial, notwithstanding whether the evidence truly supports the prosecution charge (and it is noted that his solicitor, when mitigating, still maintained that there was “no malice” behind the comments). Given that this is a man with a well-documented history of personal, medical and psychological difficulties, it is difficult not to wonder whether his vulnerabilities played a part in his decision not to mount a defence. At the very least, those vulnerabilities, and the apparent borderline criminality of his conduct, raise questions over whether the public interest was truly satisfied by dragging this damaged man through the criminal courts.

thesecretbarrister Bad Law, Lawsplaining , , ,

14 Replies

  1. I entirely agree. It seems an unwarranted prosecution for a charge which was simply not made out. However, it is not Gazza’s job to hold the CPS to account and I could quite understand if he made a more pragmatic decision not to defend the case. Couple of questions if I may:

    1. To what extent can a lawyer acknowledge practicalities in advising on plea? Does he have to simply repeat “if you are not guilty, you must plead not guilty” or can he offer a view on pragmatic points such as whether D’s unrecoverable legal fees for successfully defending a case are likely to exceed the sentence after a plea?

    2. What options did the judge have if he had believed the charge was not made out? I am guessing he could have given a discharge but could he have refused to take a plea or something like that?

    1. Thanks for your comment. In response to your query:

      1. Yes, the defendant would (or should) be advised on all aspects of the case, including not only the strength of the evidence but the practicalities and ancillary risks of running a trial (such as increased costs), although always with the standard caveat that they should not plead guilty unless they are.

      2. In his sentencing remarks, the Judge (wrongly, in my view) praised the CPS for bringing this prosecution, so he clearly thought the case was made out. If he disapproved of the proceedings, he could mark that by passing an absolute discharge, or, if he felt that the proceedings were an abuse of the court’s process, he could stay them (which has the practical effect of terminating the prosecution).

    2. 1. To what extent can a lawyer acknowledge practicalities in advising on plea? Does he have to simply repeat “if you are not guilty, you must plead not guilty” or can he offer a view on pragmatic points such as whether D’s unrecoverable legal fees for successfully defending a case are likely to exceed the sentence after a plea?

      I’d hope his legal advice was more detailed than that. There’s no dispute that he said the words – there was 100s of witnesses. The issue is are the words threatening or abusive. Different people have different views.

  2. I’d like to know why he has a bodyguard; is he an assassination risk, besides, I thought he was supposed to be broke.

    This prosecution is absurd beyond all meaning of the word. Did our fathers and grandfathers fight two world wars for this? Along with such prosecutions as Mark Pearson for a sexual assault that clearly didn’t happen, the CPS is turning this country into a sick joke.

  3. The award of compensation was beyond the court’s powers. There was no personal injury loss or damage. See s.130 PCC(S) Act 2000.

  4. Funny how “racism” only ever works one way. I’m not buying the official MSM story here that an audience member grassed him to the cops. Gazza was set up. For who pays into a Gazza show expecting to hear Noel Coward? The security guard could have chosen not to make a statement whether the original complainant or otherwise; he didn’t. As a lawyer myself, I must admit I’m growing very tired of the back breaking adherence rational, reasonable commentators and professionals display towards modern modes of thinking completely detached from harsh reality.

  5. Although the article is more nuanced than many on the subject, I differ with the conclusions.
    It’s not a comfortable case, advocating a type of of free speech versus, which became, as the DJ described it, “nasty low level racism”
    Firstly, presumably competently advised (as he has some experience of the criminal system, I assume he chose someone experienced) he chose to plead guilty. Gascoine knew more than the author or commentators (including this one) of the context of the remarks. I think to gauge effect, sometimes you “have to be there” as he, and the prosecution witnesses were, and everyone commenting wasn’t.
    Secondly, using a perceived racial characteristic of someone to expose them to mockery of crowd (even if they’re not rising to the bait) bearing in mind particularly the difference in status – invited celebrity speaker and employee with little choice but to take the derision – falls, to my mind, within definition of “abusive”.
    As to the penalty, this seems to me to be transferring the whole or part of the speakers’ fee to the butt of the “joke” and is a rare example of the punishment fitting the crime and acting as a reasonable deterrent to others on the past glories circuit. A cheap shot returned.

  6. “moderate sexual assault?” I realise that the law has to have demarcations but I doubt that anyone on the receiving end of any form of sexual assault would regard it as moderate. I’m reminded of a comment I once heard on the populist’s favourite station Five Live by a retired judge who claimed the offence under discussion was only a “minor rape”. Just really unfortunate language and does nothing for the way that the system is viewed.

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