The nominal President of the United States has had quite a week. My personal highlight was his absent-mindedly tweeting a confession to obstruction of justice, and then wildly thrashing around looking for someone else to blame for penning a tweet which was written both under his own name and in his own, inimitable, grammar-hazing style. His personal lawyer, John Dowd, was designated as the fall-guy, and dutifully announced to the press as he stepped in front of the bus that he, a practising lawyer with no prior reported involvement with any of Trump’s Twitter activity, had decided to commandeer Trump’s account and tweet something both staggeringly incriminating and legally illiterate (“pled” receiving as many raised eyebrows the other side of the pond as over here), seemingly apropos of nothing. As acts of self-sacrifice go, it was very Dark Knight. John Dowd is very much the hero Trump desperately needs right now, albeit not one he deserves.
But that debacle has taken a back seat on these shores to the diplomatic cake-smash caused by Trump retweeting a racist British far-right group’s anti-Muslim videos and doubling down when lightly ticked off by the Prime Minister. The response has been vigorous. Calls for Trump’s State Visit invitation to be rescinded have reverberated throughout newspapers and in the Houses of Parliament. And some Members of Parliament have gone as far as to call for Trump to be arrested in the event he sets foot on British soil.
Which is where I come in. Because, while the image of Trump being wrestled to the ground CNN/WWE-Gif-Style and handcuffed on the Mall has an undeniable, gorgeous aesthetic, legally it doesn’t appear as plausible as some politicians assume it to be.
Is Trump guilty of inciting racial or religious hatred?
Possibly. For the uninitiated, Trump retweeted to his 44 million followers three videos posted on Twitter by Jayda Fransen, the deputy leader of “Britain First”, bearing the titles: “Islamist mob pushes teenage boy off roof and beats him to death!”; a “Muslim Destroys a Statue of Virgin Mary!” and “Muslim migrant beats up Dutch boy on crutches!” [They are not embedded here for obvious reasons.]
Parts III and IIIA of the Public Order Act 1986 provide for various offences of racial and religious hatred. Although popularly referred to as “racist”, Trump’s various denouncements of Muslims would not, under English law, amount to an act of racial hatred, the definition under the Act providing for:
hatred against a group of persons […] defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins
Muslims are not presently recognised as a racial group (unlike Sikhs and Jews); however they would qualify as a religious group (section 29A), namely:
a group of persons defined by reference to religious belief or lack of religious belief
and so would be protected by the corresponding provisions of the Public Order Act prohibiting acts of religious hatred.
Right, so what such “acts” are covered?
Firstly, there’s an offence contrary to section 29C of the Act of publishing or distributing written material intending thereby to stir up religious hatred. It is well-established that posting content online amounts for these purposes to publishing and/or distributing. Secondly, and perhaps more fittingly, we can see an alternative in section 29E – distributing, showing or playing a recording intending thereby to stir up religious hatred. Each of these offences carries a maximum sentence of 7 years’ imprisonment.
The next issue for resolution is whether in retweeting the videos Trump intended to stir up hatred towards a group of persons defined by reference to religious belief or lack of religious belief. “Hatred” is a term of fact, not law, and has its ordinary meaning. It usually requires an element of hostility. There is also an inbuilt statutory protection for legitimate free speech as follows:
Nothing in this part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
So is Trump intending to stir up hatred?
The first observation is that the videos were posted by a woman with a conviction for religiously aggravated harassment, in her capacity as deputy leader of a group committed to resisting the supposed “Islamification of the UK“. Her purpose in posting them is plain. Trump has said and done nothing to suggest that he disavows or disapproves of that purpose.
Furthermore, were I prosecuting this imaginary trial, I would be making a lengthy “bad character application” to adduce Trump’s proud and extensive record of anti-Muslim comments and policy initiatives. The Muslim ban; his equation of Muslim refugees with ISIS fighters; his baseless claims about watching “thousands and thousands” of Muslims celebrate in New York as the Twin Towers fell; his proposals to shut down mosques; obsessive and spiteful attacks on London Mayor and Muslim Sadiq Khan in the aftermath of London terror attacks; his refusal to distinguish between Islamists and Muslims; the fact that he has, a week on, not deleted the re-tweets despite being informed, by the Prime Minister of Great Britain and Northern Ireland, no less, that Britain First is a far-right, Muslim-hating flock of lobotomites, and, particularly pertinently, that the videos do not even show what is alleged. Against this background, what possible other intention could Trump have, members of the jury, in disseminating these videos? It can only be to stir up hatred, in what one presumes is the satisfaction of the urges of his base of deplorables. If I were defending someone with Trump’s public record, I would be advising him in the strongest terms that this is an argument he is not going to win.
So the offence is made out, right?
Not quite. “Hatred”, if proved, is not the end of the matter. There is a final requirement with religiously aggravated offences, as opposed to racially aggravated offences, that the material in question be threatening, not merely abusive or insulting. Again, “threatening” carries an ordinary meaning. Were Trump’s tweets threatening? I’m struggling with this. They may have been designed to incite hatred, they no doubt play to the gallery of people who would seize upon the videos as justification for threats (or worse), but without more, I think that this threshold is difficult to meet.
What about the fact the alleged offence was committed abroad?
Cases involving internet communications, particularly where a party lives or a website is hosted outside of England and Wales, can be tricky. Put simply, the test for whether our courts have jurisdiction over an alleged criminal offence is whether a substantial measure of the alleged activity involved took place within the jurisdiction. The leading case is R v Sheppard and Whittle  EWCA Crim 65, in which a defendant based in the UK used a remote Californian server to host a website publishing antisemitic material. “Almost everything in the instant case related to the UK, which was where the material was generated, edited, uploaded and controlled. The material was aimed primarily at the British public. The only foreign element was that the website was hosted by a server in California, but the use of the server was merely a stage in the transmission of the material”, held the Court of Appeal in finding that the “substantial measure” test was easily satisfied.
Trump’s position is slightly more complicated. Looking at the core of his tweets, there is certainly an argument in favour of a substantial measure of the activity having taken place here:
- The video was initially shared and distributed by Jayda Fransen, a British citizen;
- Fransen was, presumably, based in the UK at the time that she sent the tweet;
- It was originally intended for a British audience, being tweeted in her capacity as Britain First member;
- Trump’s subsequent tweet to Theresa May, refusing to apologise and impliedly standing by the videos, could perhaps suggest that this particular theme was aimed at a British, and not just an American, audience. (I’m not convinced on this point)
- Twitter’s servers for the USA are based in the US;
- Trump is based in the US and appears to have been in the US when the tweets were sent;
- He would no doubt contend that his retweets were intended for a domestic audience.
This would be a hurdle that I am not confident the prosecution would clear.
But apart from that, there are no other obstacles, right?
There’s the small matter of section 29L(1) of the 1986 Act: No prosecution for religious hatred may be initiated without the consent of the Attorney General. This is a concession won during the Act’s controversial passage through Parliament in 2005, designed to ensure that the legislation is not abused to stymie criticism of religion. What this means in practice is that even if the Crown Prosecution Service formed the view that there was sufficient evidence to prosecute and that a prosecution was in the public interest (the two-part test applied to all prospective prosecutions), political considerations could override that assessment. The Attorney General is a member of the cabinet, and thus unavoidably vulnerable to political persuasion. The Prime Minister’s views on the desirability of attempting to prosecute the head of a friendly state moments after rolling out the red carpet for a State Visit I can only guess at. But I would surmise that consent may not be rapidly forthcoming.
But if the Attorney General says yes, we’ve got him right?
Absolutely. Apart from the fact that, as a Head of State, Trump has immunity from criminal prosecution in England and Wales pursuant to section 20 of the State Immunity Act 1978.
This provision confers upon Heads of State, members of their families in their household and their private servants the same diplomatic immunity as is extended to embassy staff under the Diplomatic Privileges Act 1964, which itself incorporates the Vienna Convention on Diplomatic Relations. This is what allows diplomats to park illegally anywhere, run up thousands in parking tickets and hop on a plane with no risk of ever being pursued.
As Head of State, Trump enjoys immunity from criminal prosecution for acts committed both as part of his official function and in private. The only exceptions would be if Trump had committed something akin to torture or a war crime, in which case technical arguments arise as to whether immunity is overridden by international law, as the House of Lords considered in the late 1990s when General Pinochet attempted to avoid extradition for authorising torture in his homeland. In 2003, the Attorney General told the House of Lords that no action could be taken against Saddam Hussain in UK criminal courts as long as he was Head of State of Iraq. And the principle of state immunity was further confirmed during an unsuccessful attempt to arrest Robert Mugabe for torture in 2004.
So why, if we couldn’t arrest Mugabe on charges of torture, do some MPs think we can arrest Trump for sending some tweets?
That is a good question. It’s possibly something those MPs may have wished to ask themselves before their tubthumping hollers in the House of Commons for Trump to be arrested and prosecuted. Sort of a basic, one might think. But, sighing heavily as the credits roll and I smile wearily to camera, who has time these days for something as minor as checking the facts before speaking?