The airwaves were buzzing in the last day or so, with the revelation that a prominent Catholic journalist and conservative social commentator, Caroline Farrow, was reported to the police for allegedly “misgendering” the adult child of a woman who is an ardent campaigner on transgender issues.
The adult child is named Jackie. The name “Jackie” is one which, like “Lesley”, could apply to either a man or a woman.
The accuser is Susie Green, CEO and founder of controversial charity Mermaids, which has attracted some critical scrutiny for its aggressive campaigning on transgender issues.
Green put her child Jackie into the public domain herself, notably by participating in a documentary some ten years ago about Jackie’s intended transgender operation in Thailand aged 16 (two years before Jackie attained the age of majority under United Kingdom law). She also took Jackie to US for hormone treatment.
At the time, neither set of procedures was lawfully available in the United Kingdom to minors of Jackie’s age. The UK’s state broadcaster, the BBC, described Jackie as “the world’s youngest transsexual”. Therefore, Green’s decisions to act as she did could fairly be described as controversial.
Jackie has given a number of media interviews. As far as one can judge, Jackie has no regrets and does not court controversy. Jackie is an adult but does not appear to have made any complaint to the police. Green cannot bring a complaint on behalf of another adult.
So how on earth did a social media spat become a police matter? It seems that Farrow and Green crossed swords on a TV discussion show in October last year. Farrow then issued a number of tweets that were critical of Green. Farrow has some 14, 900 followers on twitter.
It is clear that Farrow passionately disagrees with minors being given life-changing sex-change operations, hormone treatments, or being encouraged to change sex prematurely. These are sincerely-held views about major medical procedures, that she is entitled to hold and to express.
It is clear from sample tweets re-published by the influential Victoria Derbyshire Show on BBC2 today that Farrow does not mince her words. Her published sentiments last October included the following (which the BBC republished):
Susie Green is in breech [sic] of Samaritan policy on how suicide should be discussed and broached in media. What she did to her own son is illegal. She mutilated him by having him castrated and rendered sterile while still a child.
Susie Green may feel that giving her son off-label illegal medication aged 11 and drastic surgery was the path of least harm in her circumstances, but she shouldn’t project and impose it on other vulnerable kids as best practice.
I think it’s time everyone called out Susie Green and Mermaids policy out for what it is. Child abuse.
Both Victoria Derbyshire and the BBC were happy to fan the flames of controversy, which raises questions about what is really going on here. Derbyshire has some 90, 000 Twitter followers, and tweeted a link to her interview of Green:
In that interview, Green admits that her motive for the police report was because she viewed Farrow’s tweets as “really damaging” i.e. defamatory.
Farrow’s attacks were, on the face of them, unpleasant and arguably defamatory of Green. By way of antidote to the bane, Green would no doubt have said, had she been offered an opportunity to comment in advance of of those tweets, that Jackie was competent to accept medical treatment, and that in any event any treatment provided was lawfully available in those countries where treatment was obtained. As for the suggestion that Green and her charity’s “policy” amounted to “child abuse”, no doubt Green would have said that this was grotesque and wholly unfounded.
The only potentially relevant provision in criminal law would appear to be section 127 Communications Act 2003. This provides:
(1) A person is guilty of an offence if he –
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he –
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
The issue from a criminal law perspective therefore would appear to be whether Farrow’s tweets were “grossly offensive”, or whether she knew them to be “false” when engaging in a heated debate on matters of public controversy. According to Farrow’s statement to the BBC, she vehemently denies being malicious or intentionally inaccurate.
Farrow also hit back at Green’s appearance on the Victoria Derbyshire show to ventilate her differences with Farrow, arguing with some justification that this was inappropriate in the context of an ongoing police investigation. MailOnline reported Farrow as saying:
I am very concerned about Mrs Green disclosing what the police will not tell me about my tweets on this programme and making allegations I cannot counter…..This is a public witch-hunt.
Being upset, even at being libelled, is clearly not a police matter however. Libel is a civil cause of action – a tort – which is exclusively a matter for the High Court. Parliament abolished the offence of criminal libel in 2010.
Green’s route to the lawful vindication of her good name lies in a defamation action in the High Court, therefore, not via the police.
I have argued before that people should not seek to reintroduce the criminal offence of libel through the back door, by going to the police alleging “hate crime”, harassment or malicious communications. That is deeply regressive.
There are reams of reported cases upholding the European Court of Human Rights’ influential ruling in Handyside v UK in 1976 that freedom of speech includes the right to express views that shock, offend, or disturb others. Freedom of speech includes the right to say offensive things, and to hurt others’ feelings.
This cannot be emphasised too strongly, especially in the current febrile climate. As Lord Justice Sedley observed in the case of Redmond-Bate v DPP in 1999:
Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. [bold emphasis added]
And in the famous Twitter joke trial of Paul Chambers v DPP in 2012, the Lord Chief Justice emphasised that freedom of speech, especially on Twitter, is protected:
Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. …. for those who have the inclination to use “Twitter” for the purpose….they are free to speak not what they ought to say, but what they feel. [bold emphasis added]
It is also worth recalling that in days gone by, a Catholic mother of nine, Victoria Gillick, was very outspoken about whether children should be given contraception on the NHS without their parents’ knowledge, and whether minors should have ready access to abortions.
Those were more liberal times, when a Catholic mother of a large family was not summoned to a police station because she voiced conservative views. Gillick didn’t hold back; in a test case brought against the Department of Health, she argued that GPs who dispensed the contraceptive pill to underage girls were aiding and abetting the crime of statutory rape.
Judges were deeply divided by the Gillick case, but in 1985 the House of Lords by a majority ruled that a child under 16 who had sufficient maturity and understanding to appreciate the consequences of a course of medical treatment could accept such treatment, regardless of their parents’ views or wishes. This is known as “Gillick competence”.
Lord Templeman, one of the dissenting Law Lords, took a dim view of the majority’s approach, arguing that parents should have the right to decide what medical treatment their children should have, subject to the jurisdiction of the family courts to take decisions about children’s welfare:
But subject to the discretion of the court to differ from the views of the parent, the court will, in my opinion, uphold the right of the parent having custody of the infant to decide on behalf of the infant all matters which the infant is not competent to decide. The prudent parent will pay attention to the wishes of the infant and will normally accept them as the infant approaches adulthood. The parent is not bound by the infant’s wishes but an infant approaching adulthood may be able to flout the wishes of the parent with ease.
And he went on:
I doubt whether a girl under the age of 16 is capable of a balanced judgment to embark on frequent, regular or casual sexual intercourse fortified by the illusion that medical science can protect her in mind and body and ignoring the danger of leaping from childhood to adulthood without the difficult formative transitional experiences of adolescence. There are many things which a girl under 16 needs to practise but sex is not one of them. Parliament could declare this view to be out of date.
Based on these observations, one cannot see Lord Templeman readily approving a minor’s decision to have a sex-change operation, even if a parent agreed to it.
Farrow’s controversial tweets, though she expressed herself very provocatively, reveal a conviction that a sex-change operation renders people sterile, and that such a life-changing procedure should not lawfully be available to minors, whatever their parents may think is in their best interests.
Implicit in her argument is a further contention, that parents should not seek to evade UK laws by taking their children aboard for procedures not available in the UK.
These are important issues and worthy of public debate.
Events took a surprising turn today, when Green announced that she was withdrawing her police complaint. According to MailOnline, Green said:
If I had continued my complaint then Caroline Farrow would have continued to have a platform to spread misinformation about what actually happened. Being involved in an investigation would have meant that I couldn’t talk
This rather gives the game away. It suggests that Green initially resorted to the police as part of a calculated media strategy in order to silence a prominent critic, only to back off when this tactic rebounded on her.
In my opinion, the police should be astute to prevent themselves from being used as attack dogs by outspoken public campaigners, who seek to use their children as a sword in order to shut down or to curtail legitimate debate on matters of public importance.