Restoring freedom of speech

How our laws took away our freedom, and how it can be reclaimed

British politicians often claim that the United Kingdom upholds and defends freedom of speech. This even includes the Prime Minister, Keir Starmer, who, perhaps due to criticism of European practices from the Trump Administration, has made several remarks on the subject in the last twelve months alone:

‘Free speech is one of the founding values of the United Kingdom, and we protect it jealously and fiercely and always will.’ (September 2025)

‘We have a long history of free speech in this country. I'm very proud of that and I will always defend it.’ (September 2025)

‘We've had free speech for a very long time, it will last a long time, and we are very proud of that.’ (February 2025)

On some level, perhaps Starmer does genuinely feel that freedom of speech is ‘one of the founding values’ of our country. Yet the problem with ‘values’ is the plural. Unless the things you value are perfectly aligned, you have to prioritise one over another. Value No. 6 may as well be Value No. 606. His words, then, are a hollow comfort, for under no modern understanding of what ‘freedom of speech’ entails can the British state claim to protect it. Many articles have been written on this subject over the years; this article seeks to summarise comprehensively what has largely been discussed, and to describe what a near-total restoration of free speech in Britain would require.

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To understand the scope of the problem, we must go through each of the main Acts responsible for our current state of affairs and examine the provisions that enable restrictions on free expression in Britain. This is not an exhaustive list of every Act or provision that has implications for speech, communication, or expression; however, the Acts named are responsible for the vast majority of prosecutions.

Section 127 of the Communications Act 2003

Section 127 of the Communications Act 2003 states the following:

‘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 to be so sent.’

Section 127, which is probably the most egregious restriction on free expression in this country, has seen people prosecuted for messages sent in private WhatsApp groups; a teenager convicted for posting rap lyrics; and a man jailed for posting ‘offensive’ Facebook memes. Section 127 offences are summary-only offences, meaning they are heard in a magistrates’ court, not a Crown Court, and as such, there is no jury trial. After the Government’s forthcoming courts reforms, there will also be no automatic right of appeal.

If this doesn’t sound bad enough, the intended recipient(s) of said grossly offensive, indecent, obscene, or menacing communication don’t even need to receive the message or find it offensive for it to be a crime. The mere act of sending the message is a criminal offence, as clarified by DPP v Collins in 2006:

‘…I also agree with his conclusion in paragraph 8 that it can make no difference to criminal liability whether a message is ever actually received or whether the persons who do receive it are offended by it. What matters is whether reasonable persons in our society would find it grossly offensive…’

This is also confirmed in Crown Prosecution Service (CPS) guidelines on prosecuting cases involving communications sent via social media and on the CPS website regarding Communications Offences:

‘The offence is committed by sending the message. There is no requirement that any person sees the message or be offended by it.’

‘Section 127 CA 2003 – it is not necessary to show the message was addressed to, or received by, another person. The actus reus of the offence is complete when the message is sent — see DPP v Collins [2006] UKHL 40, and DPP v Kingsley Smith [2017] EWHC 359 (Admin). This will cover the posting of a message, and indeed re-posting or other sharing of a communication.’

You could send a message on WhatsApp, email, Facebook, YouTube — any electronic medium — and even if the recipient doesn’t receive your message (or does receive it, but doesn’t find it offensive), if it were to be seen by police and referred to the CPS, and if they were to deem that a reasonable person would find the message offensive, you could be arrested, prosecuted, and found guilty. Because there are no juries involved — and very soon no right of appeal — only the judgement of agents of the state will ever be considered during your case.

It’s important to also highlight that private group chats are not exempted. Reader, you too have almost certainly fallen foul of this law — and it is only the fact that the state has not yet seen behind WhatsApp’s encryption filters that you have not yet had a knock at your door.

Section 1 of the Malicious Communications Act 1988

Section 1 of the Malicious Communications Act 1988 states the following:

‘Any person who sends to another person—

(a) a letter, electronic communication or article of any description which conveys a message which is indecent or grossly offensive;

(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.’

As with the Communications Act 2003, there is no requirement that said message has to reach the individual, as laid out in guidelines on prosecuting cases involving communications sent via social media.

‘…the offence is one of sending, delivering or transmitting, so there is no legal requirement for the communication to reach the intended recipient…’

This Act is not used as often as the Communications Act 2003, but was responsible for some notable cases, including Joey Barton, a football commentator who was found guilty of sending offensive messages about a football presenter, and Thomas Casserly, a man who was prosecuted for sending offensive emails to a local town councillor.

Arguably, one benefit of being prosecuted under this Act is that you will at least get a jury to decide your fate — but if David Lammy’s reforms come in, who can say whether this will continue to be the case.

According to The Times, the police made over 12,000 arrests under Section 127 of the Communications Act 2003 and Section 1 of the Malicious Communications Act 1988 in 2023 alone, equating to around 30 arrests per day.

Sections 4, 4A, 5, and 19 of the Public Order Act 1986

Prior to 2024, the Public Order Act 1986 was rarely used for prosecuting speech or communication offences, as every case requires the consent of the Attorney General — a sign-off that is designed to ensure a high threshold for prosecution, safeguard free speech, and prevent judicial overreach. However, in 2024, after the murder of three girls in Southport by Axel Rudakubana, which sparked nationwide riots and disorder, the Public Order Act 1986 saw increased use — not just against those engaged in rioting and public disorder, but against those who made videos or posts about the rioting or events at Southport and were seen to be whipping up anger.

Section 4 of the Public Order Act 1986 states:

‘A person is guilty of an offence if he—

(a) uses towards another person threatening, abusive or insulting words or behaviour, or

(b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.’

Section 4A states:

‘A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting

thereby causing that or another person harassment, alarm or distress.’

Section 5 states:

‘A person is guilty of an offence if he—

(a) uses threatening or abusive words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening or abusive

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.’

Section 19 states:

‘A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if—

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.’

There are other sections in the Public Order Act 1986 that deal with plays or physical displays rather than published or written material (social media posts, videos, etc.); however, these are less commonly used and, aside from some minor changes in wording, the gist remains the same: that posting abusive, threatening or insulting material that could stir up racial hatred, or is likely to result in racial hatred being stirred up (note that actual results are immaterial here), can be a crime under the Public Order Act 1986.

For the purposes of the Act, the meaning of racial hatred is defined as:

‘…racial hatred means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins…’

It is as a result of this rather broad language that several high-profile cases have been prosecuted under this Act. The most famous is probably the case of Lucy Connolly, a childminder who was prosecuted for a post she made on X (formerly Twitter) in the immediate aftermath of the Southport killings. Connolly posted the following:

‘Mass deportation now, set fire to all the fucking hotels full of the bastards for all I care, while you’re at it take the treacherous government and politicians with them. I feel physically sick knowing what these families will now have to endure. If that makes me racist so be it.’

Some have pointed out that Connolly’s statement was not direct incitement and was merely an expression of indifference (‘for all I care’), but as Connolly pleaded guilty, this argument was never tested in front of a jury.

Another noteworthy case is that of Jamie Michael, a former Royal Marine who was prosecuted under the Public Order Act 1986 for a 12-minute video he posted on Facebook shortly after the Southport killings. In the video, Michael remarked on the dangers illegal migrants pose to children and how the politicians, police, and councils need to do more to protect people. The prosecution argued that Michael was intending to incite racial hatred and an uprising. Michael was cleared by a unanimous jury verdict in just seventeen minutes.

There is also the case of Mark Heath, a former prison officer who was charged for several ‘anti-immigration’ and ‘anti-Muslim’ social media posts, with the prosecution producing a 48-page dossier of content, including:

‘…Now the truth: Name ALI AL SHAKATI, arrived on a dinghy last year, saying he is 17 so not to be named, multiple witnesses saying he was shouting ALLAHU AKBAR!..’

‘…I will not submit to Islam in my own country…’

‘…it is time we the people took our country back..’

‘…Just think how many ALI AL SHAKATIs are arriving and already here, ready to butcher our kids!!...’

The prosecution argued these posts were trying to incite racial hatred. Heath claimed he simply had strong opinions and was a believer in free speech. Heath was cleared by a majority jury verdict.

Sections 179 and 181 of the Online Safety Act 2023

The Online Safety Act 2023 is a much newer piece of legislation, and while its main flaws are the gatekeeping of services behind age verification checks (or indeed, the outright removal of some sites in Britain, such as Imgur), the Act does also have implications for freedom of speech.

Section 179 of the Online Safety Act 2023 states:

‘A person commits an offence if—

(a) the person sends a message,

(b) the message conveys information that the person knows to be false,

(c) at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience, and

(d) the person has no reasonable excuse for sending the message.’

Though broadcasters and publishers are exempt from this section.

Section 181 states:

‘A person commits an offence if—

(a) the person sends a message,

(b) the message conveys a threat of death or serious harm, and

(c) at the time of sending it, the person—

(i) intended an individual encountering the message to fear that the threat would be carried out (whether or not by the person sending the message),

(ii) or was reckless as to whether an individual encountering the message would fear that the threat would be carried out (whether or not by the person sending the message).’

Despite being a relatively new Act, some prosecutions have already been brought under it. Bernadette Spofforth was arrested in August 2024 after she made a post on X that incorrectly named the Southport killer as ‘Ali-Al-Shakati’, supposedly an asylum seeker who arrived illegally by small boat and was on MI6’s watch list (this was a fairly widespread rumour on social media before Axel Rudakubana was named, as shown by Heath also making reference to this). Her post did have the qualifier ‘If this is true’, and she did later remove the post. After several weeks of investigation, the police issued a letter of no further action.

Dimitrie Stoica was arrested for a TikTok livestream in which he claimed he was running for his life from ‘extreme right-wing rioters’. He pleaded guilty to sending a false communication with intent to cause harm and was jailed for three months.

‘Grossly offensive’

It’s worth addressing where these references to ‘grossly offensive’, ‘indecent’, and ‘menacing’ come from. In the 1960s and 1970s, there was a growing issue of obscene telephone calls, sometimes referred to as ‘terror’ or ‘dirty’ phone calls. These were often targeted at young and single women, with an analysis of the British Crime Survey showing that around 10% of women experienced one of these calls in a given year.

As part of the Telecommunications Act 1984, improper use of a public telecommunication system was made a criminal offence, with the maximum penalty at the time being a £400 fine, which was later increased to £1,000 and a maximum of six months imprisonment.

Section 43 of that Act states:

‘A person who—

(a) sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication system…’

This section was later repealed by the Communications Act 2003; however, the wording of this section effectively passed into the Malicious Communications Act 1988 and Communications Act 2003 with few modifications or tweaks. Successive Conservative and Labour governments failed to repeal or update the wording of these sections to reflect communication in the modern era.

The failure of the ECHR

The above Acts and the provisions within them are used to arrest and prosecute people for various speech- and communication-related offences. Because the above legislation is vague, subjective, and (with the exception of the Online Safety Act 2023) drafted in an era before the internet existed or was widely used, these Acts are prime examples of bad law, even outside of the political issues we might take with them. This gives the police and judiciary the power to decide which ‘offences’ are selectively enforced, and, in the case of the Public Order Act 1986, even gives this power to the government itself (as deployed by Keir Starmer after Southport).

Some will try to argue that, because the United Kingdom is a signatory to the European Convention on Human Rights (ECHR), and incorporates this into domestic law via the Human Rights Act 1998, free speech is protected. Unfortunately, this is false. Article 10 of the ECHR states the following:

‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’

However, this is a qualified right, and is subject to national restrictions and limitations, as laid out in domestic law:

‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

It is this qualification that gives the police and judiciary, using the above Acts of Parliament, the ability to restrict and criminalise certain forms of speech, communication, and expression. The free speech protections under Article 10 of the ECHR are nowhere near as stringent or comprehensive as something like the First Amendment of the United States Constitution, which reads much more broadly and has been vigorously defended by the US Supreme Court:

‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’

Non-crime hate incidents

Unfortunately, our free speech problems don’t end here. Even if you haven’t committed an offence under any of these Acts, and are protected under Article 10 of the ECHR, you may still find yourself penalised for the content of your speech. Most readers will be aware of the concept of ‘non-crime hate incidents’ (NCHIs), and of the fact that they were recently abolished. However, upon closer inspection, ‘abolished’ seems all too strong a word. In fact, NCHIs will be ‘replaced’ by a new framework (‘ASBs’) which changes the definition of an ‘incident’ as follows:

Current definition of an incident

• ‘An incident is a single distinct event or occurrence which disturbs an individual, group or community’s quality of life or causes them concern.’

Proposed new definition of an incident

• ‘An incident is a single distinct event or occurrence which may be relevant to policing for preventing or solving crime, safeguarding individuals or communities or fulfilling other statutory policing purposes.’

Undoubtedly, the Government’s intention is to tighten the criteria under which NCHIs can be recorded. That said, the new definition could easily be interpreted just as broadly by police leadership that remains committed to the same principles it has been for decades. It would not be an unexpected leap for an officer minded in that way to describe any expression of ‘hate’ as a potential safeguarding risk to ‘individuals or communities’, given the well-established framework that words naturally lead to (or indeed themselves constitute) violence. It is therefore still worth treating this phenomenon as very much part of our existing speech regulation infrastructure.

According to The Times, of the forty-five police forces that responded to Freedom of Information requests, over 13,000 non-crime hate incidents were recorded over the previous 12-month period. According to The Telegraph in December 2024, over 133,000 NCHIs were recorded in England and Wales between 2014 and 2024, equating to around 36 NCHIs being logged every day.

What makes NCHIs particularly egregious is the police are not obliged to notify individuals if an NCHI has been recorded against their name. Whilst the College of Policing guidance issued in June 2023 says that police forces should seek to do so, there are exemptions to this if the police believe notifying the individual poses a safeguarding risk to the person who made the report.

The process for appealing an NCHI and having it removed from your record is Kafkaesque. If you haven’t been notified that an NCHI has been logged against your name, you would have to submit a Data Subject Access Request (DSAR) to your local police force (or, worse still, multiple police forces if you’ve moved around the country and fallen under the jurisdiction of more than one police force). If the police come back and confirm there is an NCHI logged against your name, they are not compelled to give you any details whatsoever about the NCHI; they are only compelled to confirm whether one exists or not. This can make any appeal difficult, as you may lack information and context to successfully challenge the NCHI and explain why it should be removed.

According to Harry Miller, an ex-police officer and founder of Fair Cop, as well as The Free Speech Union, NCHIs can also be disclosed to prospective employers as part of enhanced DBS checks, which are often required to work in schools, colleges, universities, the police, councils, the NHS, the civil service, and various other public sector roles. When Harry Miller requested a copy of his record, the NCHI logged against him appeared under ‘Crime Report’, even though NCHIs are not crimes, with the category listed — somewhat amusingly — as ‘Crime: Non-Crime’.

It’s quite possible that a prospective employer who requests an enhanced DBS check on someone who has an NCHI on their record could glance at this report, see wording like ‘crime report’, ‘offence’, and ‘suspect’, and dismiss the application, without reading further and discovering that a ‘crime report’ from an enhanced DBS check can contain non-crimes — and one can hardly blame employers for their failure to navigate this Orwellian system.

It is unclear how all of this will work under the new system. What happens to existing NCHIs on police databases? Will these old NCHIs still be able to appear on enhanced DBS checks? Will ASBs for speech-related incidents be included in enhanced DBS checks? Will the process to appeal an ASB be more transparent than an NCHI? The answer to all these questions is that we won’t know until the replacement guidance is issued.

The Solution

Recently, the Adam Smith Institute released The Freedom of Speech Bill (2026), which was drafted by Preston Byrne, Michael Reiners, and Elijah Granet. All three of these individuals have spent years discussing the state of free speech in this country and what might be done to address it. The bill calls for the wholesale repeal of the following Acts:

• Hate Crime and Public Order (Scotland) Act 2021

• Malicious Communications Act 1988

• Obscene Publications Act 1959

• Online Safety Act 2023

• Public Order Act 1986

• Public Order Act 2023

• Senedd Cymru (Member Accountability and Elections) Act 2026

It also proposes repealing specific sections of various other Acts:

• Section 127 of the Communications Act 2003

• Sections 1-7 of the Contempt of Court Act 1981

• Article 10(2) of Schedule 1 of the Human Rights Act 1998

• Section 5 of the Official Secrets Act 1989

• Part II of the Terrorism Act 2000

• Sections 1, 2, 3, 21, and 22 of the Terrorism Act 2006

The bill proposes making lawful speech a protected characteristic under the Equality Act 2010, which would prevent activist organisations from pressuring people’s employers and hounding them out of a job for espousing perfectly legal speech. Many people self-censor not because they are worried about breaching one of the Acts, but because they are worried about being fired if they discuss sensitive or controversial topics. Of course, if the Equality Act itself is abolished for other reasons, another solution will have to be found — but some kind of solution to social enforcement of speech codes will have to be found if legislative changes are to be made more meaningful.

The bill also proposes a full pardon and the wiping of the criminal records of anyone previously convicted under one of the repealed Acts or provisions, so long as their original offence would now fall under the definition of lawful speech — which, as defined by this bill, essentially exempts any speech except direct and imminent incitement against an individual or group.

Some may say this bill is too radical. In response, the authors pose a simple question: Do you want the UK to have speech rights that are equivalent to those protected by the First Amendment in the United States? If the answer is yes, then the radical changes outlined in this bill will allow you to achieve this. If the answer is no, then what restrictions on free speech are you willing to tolerate? And, just as importantly, can you really trust the authorities with these restrictions?

There is often a reluctance to repeal large amounts of legislation; a presumption that there must be something worthwhile in any Act which found its way through Parliament, even if it has flaws. There is therefore a preference for amending legislation instead. In this case, that would be radically misguided. As described at the beginning of this piece, to truly defend a cause is to prioritise it above almost any other concern. Only by repealing all of these provisions can we restore our freedoms.

If the public genuinely wants better protections for speech in this country, then tinkering around the edges will make little difference. A Reform Government will have the ability to make changes, but it must first realise that it has the legitimacy to do so.

We got into this mess because of legislation, and only legislation will get us out.

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This article was written by Charlie Cole, a Pimlico Journal contributor. Have a pitch? Send it to submissions@pimlicojournal.co.uk.

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