Prosecuting the Lowery photo football ‘fan’ sets a dangerous precedent

Football fans across the country were rightly appalled by pictures of two Sheffield Wednesday fans appearing to use the image of a young cancer victim to mock their opponents. One imagines that if, as seems likely, they both receive lengthy bans from all football grounds in the country, few tears will be shed. Certainly not from the Lowery family, who have acted with dignity throughout.

However, the ramifications have gone further than this. The pair were both arrested, and the man holding up the image has been charged with a public order offence and sentenced to 12 weeks in prison, suspended for 18 months, in addition to 200 hours of community service.

It’s not the first time that football fans have been prosecuted for similarly vile behaviour. Earlier this year, a Man United fan was fined £1000 for wearing a shirt mocking victims of the Hillsborough disaster, while a Plymouth fan was fined £750 for claiming on Twitter that their striker was “on fire like Mick Philpott’s house”.

Behaviour such as these examples are clearly unacceptable, and banning orders are a reasonable response, but the involvement of the police in these matters should worry us. Are all of these incidents really worthy of criminal proceedings?

When it comes to what should and shouldn’t be legally permissible to say, I would argue that there are three spectrums. The first, and perhaps the most clear cut, is any speech that is inciting violence. Even so-called ‘free speech absolutists’ (a rather meaningless phrase) would surely concede that anything falling on this spectrum runs the risk of falling foul of the law. Then we have the spectrum of hateful speech. This is probably the most contested, and very much the hotbed of various ‘culture wars’ arguments. The third is the spectrum of insensitivity, which is arguably where all these incidents fall. I don’t use this word lightly, and it’s undeniable that displaying a picture of Bradley Lowery as a tool to mock opposition fans falls pretty far along that spectrum. But I can’t think of any example of insensitive speech that I believe should be illegal.

Public order offences are vaguely defined, and as such open to misuse. We may be tempted to turn a blind eye to these prosecutions on the basis that we find the individuals involved to be nasty and unpleasant, but that would be wrong. In the case of the Mick Philpott tweet – the most innocuous of the three incidents – the accused party has argued, reasonably enough, that you could hear worse jokes at any edgy comedy club, or indeed if one were to go to see comedians such as Ricky Gervais or Jimmy Carr. However you feel about jokes that are intended to shock, it should never be illegal to make them (or worse, laugh at them – the second Sheffield Wednesday fan was also arrested, merely for laughing along with his friend holding the phone).

It is very easy to lend vocal support to those wronged by the law whom we find an affinity with. It is much more difficult, but no less necessary, to point out where justice has been badly served to those whom we dislike. But that shouldn’t stop us doing it.

* David Gray is a musician, actor and writer based in Birmingham. He is a a co-director of Keep Streets Live

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  • I agree totally with David Gray. Defending free speech has to involve defending the right to say objectionable things. Interesting that at the moment we have the Right complaining about cancel culture in our universities whilst wanting to ban street protests whilst some on the Left would “no platform” many views whilst supporting “acceptable” views being expressed on marches for “appropriate” issues.

  • No.Ranting and raving is not a reasoned argument. Treating such people with kid gloves just encourages them that such actions are permissable

  • Spot on Richard.

    I found the rhetoric around the marches infuriating – it must be possible to find protesting on Armistice Day disrespectful (an argument that I don’t really understand, but there we go), while also acknowledging that such protests must remain legal.

    I always think of this not so much as cancel culture, but as ‘Something Must be Done’ culture. For which I’m sure social media plays a big role. When something objectionable is said or done, these things can be whipped up into such a fury that no punishment is enough for the online mob

  • Ruth Bright 19th Nov '23 - 8:05pm

    24 carat Liberalism from David as always. A custodial sentence for being crass and rude – a terrifying misuse of state power.

  • My apologies Tim Rogers, I don’t fully understand the comment. Who was ranting and raving?

    I don’t believe that the actions of this fan were morally permissible. But it shouldn’t be a criminal offence to hold up a picture.

    What do you think the punishment should be? I think a stadium ban is fair, enforced by footballing authorities rather than the police. Do you believe the outcome was about right? Or does the fact that the sentence was suspended mean it was too lenient, and therefore implicitly suggesting that their actions were ‘permissible’?

  • Peter Watson 21st Nov '23 - 1:05am

    Whilst I agree with the sentiments about the right to cause offence (though I have to wonder how tolerant any of us would feel if it were our dead child’s photo), it seems to me that provoking rival fans in a football stadium is closer to the “shouting fire in a crowded theatre” end of the spectrum when it comes to free speech than it is to merely being insensitive. It goes far beyond banter and could trigger emotional outbursts and violence, possibly with victims who had nothing to do with the outrageous behaviour of the [insert preferred insult here] who inspired this article, and I think it could be considered fair game for police action.

  • Nonconformistradical 21st Nov '23 - 8:28am

    “it seems to me that provoking rival fans in a football stadium is closer to the “shouting fire in a crowded theatre” end of the spectrum when it comes to free speech than it is to merely being insensitive”
    I’m inclined to agree with this. And while I have no interest in football – it is obvious from the media that some of this behaviour is quite routine e.g. offensive chants about the Munich air crash (which I’m old enough to remember) and Hillsborough.

    From what I read it seems a number of so-called football supporters have been banned over the years for such behaviour. But bans don’t appear to be stopping it happening.

  • I think intent is important: If I express my honest opinions politely without ill intent, and you feel hurt or offended because you disagree with them or because my opinions imply criticism of you, then I have not done anything wrong – and the ‘liberal’ response should be to defend my right to express myself. On the other hand, if I say or do something specifically in order to cause hurt or offence, then I have done something wrong and gone beyond the normal right to free speech. And depending in what manner or how publicly I made those comments, and how much hurt they are likely to cause to a reasonable person, it might on occasions be appropriate for the police to intervene – but that should probably only be in the most extreme cases. The problem is it can be a subjective judgement call about what comments fall into what category – and I think that’s a problem we just have to accept and deal with as best we can.

  • Hi Peter – these are reasonable points.

    I think most of us would be utterly furious if it were on of our own children, but I’ve never felt that to be particularly relevant in regard to prosecution or sentencing.

    I don’t think I agree with the ‘fire’ comparison (is it actually illegal to do so? Genuinely don’t know). Yes, it has the potential to cause disruption among opposition fans, but so does all manner of chants at a football match. This behaviour is obviously beyond the limits of acceptable ‘banter’, but to criminalise something in the basis of a reaction that it might provoke is not right in my view.

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