It was summer 2014. Driving back to London with my baby daughter after a day out in Waltham Abbey, I was waiting for a traffic light to turn green. Pulled up beside me on my right-hand side was a long-haired, long-bearded man on a classic motorcycle. He looked around my car, and shook his head in seeming disapproval. Suddenly – with absolutely no provocation – he roared out “FUCKING NIGGERS”. Then he jumped the red light and sped off.
Every decent person could see that as a credible hate crime. But there are exchanges less clear cut, with motivations more arguable. How should society – and the law – deal with those?
Earlier this month, without scrutiny or fanfare, the Crown Prosecution Service abandoned a lengthy attempt to prosecute a recent university graduate for her use, in a jovial conversation on social media, of the word “nigga”. The case turned on an exchange on X (formerly Twitter) on 27 August 2023, after Newcastle United had been beaten 2-1 by Liverpool. Jamila A, a 21-year-old Black British woman, in conversation on X with an African American friend and referring to the Newcastle striker Alexander Isak, quipped: “@******** i’m so pissed off let me get my hands on that fuckin isak nigga.” The tweet was picked up by a data monitoring organisation hired by the Football Association, and months after the tweet was posted, the police were at her door.
She was taken into custody for questioning, subsequently arrested and charged with being in violation of the Malicious Communications Act 1988. After media interest, the CPS “downgraded” the charge to a violation of the Communications Act 2003: to be heard in a magistrates’ trial, where a conviction was more likely.
When contacted about the case by the Independent newspaper July of last year, the CPS responded: “Hate crime has a profound impact on victims and communities. Being from an ethnic minority background does not provide a defence to racially abusing someone. Our commitment to tackling these abhorrent crimes through fair and impartial prosecution is unwavering.”
But on 5 March, after a year of causing Jamila A needless anxiety, the charges were dropped. There was brief mention of the outcome on social media and among interested journalists. The world moved on.
Still, there is an issue here, for Jamila was just the latest in an ever-growing line of Black and brown people to be targeted by a state that absurdly fails or refuses to understand the difference between stark and hurtful racism and the use of terms that have become common intra-communal parlance.
Racism is a terrible blight. All robust effort should be made by citizens to protect their fellow humans from it. But context is important. As I see it, the authorities made the conscious decision to ignore the glaringly crucial context that these were just two young Black people conversing like two young Black people about another young Black person. They were not hosting a Klan rally, and there was nothing obscene or out of the ordinary in their conversation. It’s clear to me that the player was not subject to any incitement to hate at the hands of Jamila A. As her lawyers said in a statement, “No evidence of any party finding the tweet offensive, indecent, obscene or menacing had been provided”.
For the benefit of the police and the CPS: the substantial difference between the biker screaming racism at my daughter and me, and Jamila referring to Isak as she did is not a matter of spelling or semantics but intent, history, culture and community. The biker subjected us to the words – and mannerisms – of white supremacy and dehumanisation. But that experience and the experience of a Black friend or even a Black stranger referring to me as or calling me the N-word are galaxies apart.
There have been other misapplications of outrage and concern. Last year’s so-called emoji trial ended in the crown court acquittal of a Black man charged after sending a raccoon emoji to a Black Conservative politician on social media. The word “coon” has long been a viciously racist slur directed by white racists towards Black people. But there is also, among Black Britons and African Americans, the term “cooning” – a form of critique directed at Black people alleged to be collaborating with or pandering to racism in order to curry favour. Last September, Marieha Hussain, a teacher of south Asian origin, was acquitted of a racially aggravated public order offence after she carried a placard depicting Rishi Sunak and Suella Braverman as “coconuts”: one of many forms of satirical critique used about visible minorities (and formerly colonised people) alleged to over-identify with the tastes, cultural practices and behaviours of their historical colonial overlords. District Judge Vanessa Lloyd ruled that the placard carried by Hussain was “part of the genre of political satire”. So, a heavily pregnant woman faced trial for obvious satire.
All the instances involved the weaponisation of terms that are sometimes controversial, sometimes satirical, sometimes unpleasant and sometimes loving, but widely recognised and accepted as intra-communal language – and, therefore, have an entirely different communal resonance. They show the very hate crime laws that were designed to protect minorities are now being used to persecute them. For some, that may be the intention. But it erodes the credibility of the state to protect and police a multicultural society such as our own. The words and images in question may not have been kind, but neither were they reason for intervention by police officers and courts.
Just as the word “queer” has been reclaimed by the LGBTQ+ community from the speech of homophobes, there has been a wider reclamation of oppressive, denigrative and dehumanising language. It comes from a place of community, kinship, shared characteristics and a history of oppression.
And it is interesting, is it not, that there is no sign of such intrusive policing when the N-word as deployed by rappers is being used to generate billions in profits for large, predominately white-owned companies?
There should be a conversation about this. Certainly, there should be a prosecutorial rethink. The law is based on statutes and interpretation, but surely its root is in common sense. There is enough real hate crime around. Why conjure it up where it doesn’t exist?
Nels Abbey is an author, broadcaster and the founder of Uppity: the Intellectual Playground
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