Video Summary

In this video, we delve into two significant legal cases that have generated considerable public interest and debate. First, we discuss Joey Barton’s sentencing for grossly offensive communications, highlighting the jury's determination that the comments crossed a legal threshold of offensiveness due to their racial nature. The judge affirmed the importance of free speech while clarifying that this freedom has boundaries, particularly when it comes to communications deemed grossly offensive.

Next, we explore the case of nurse Sandy Peggy, who alleged breaches of the Equality Act against her employer and Dr Beth Upton, a trans woman. The tribunal found that while some claims against the health board were validated, the claim against Dr Upton was dismissed. The decision around trans women in female changing rooms has provoked debate over the risks involved and the jurisprudential principles at play, as the tribunal made a striking statement concerning the perceived risks posed by trans women in such environments.

Overall, both cases reflect ongoing societal conversations about identity, rights, and the implications of free speech in our contemporary landscape.

Transcript

An extraordinary day of judgments and commentary as Joey Barton has been sentenced for grossly offensive communications offences. Zara Sultana doesn’t seem to know what a British citizen is. One of the strangest and patently absurd lines I've ever seen in a judgment is in the nurse Sandy Peggy case concerning trans issues. I haven’t read the full judgment just yet; it’s very long, but I’ve skimmed it and found one or two quite strange things. I’ll come back to that a little bit later.

But first, a teeny tiny favour: please do subscribe to the channel. We are nearly at 900,000 subscribers, which means I’m on the final countdown to 1 million subscribers. I’d be very grateful. Thank you very much for doing that.

Now, let’s get straight to it, shall we? Let’s start with Zara Sultana’s message here on X. Some people might say she doesn’t really mean it; that’s not precisely what she meant. Well, it’s sort of what she said. So, let’s take a look. She said, “It’s 2025 and we’re still living as subjects, not citizens. It’s time for a referendum on the monarchy.” This statement was subject to a community note. It had been approved and then seems to be open for rating. The reason for that is, of course, that she’s mistaken in that we are living as British citizens, and many of us have been for a very long time.

There are quite a few different ways you might look into how one becomes a British citizen. Additionally, it is still, at least technically, a criminal offence to call for the abolition of the monarchy, punishable by life imprisonment under the Treason Felony Act of 1848. Although many people claim that it is just a technicality and would never be used, The Guardian challenged it unsuccessfully in the High Court in 2003. In 2013, the Ministry of Justice had to admit that it had wrongly announced that this had been repealed and that it remained an offence. So technically speaking, Zara Sultana’s post here, calling for a referendum on the monarchy, could be seen as calling for the abolition of the monarchy.

To read specifically with the wording: “If any person whatsoever shall within the United Kingdom or without compass, imagine, invent, devise, or intend to deprive or depose our most gracious lady, the queen...” Obviously, that would apply to the king, and it includes publishing any writing or performing any overt act or deed. Every person so offending shall be guilty of felony and, being convicted thereof, shall be liable to be transported beyond the seas for the term of his or her natural life. Obviously, this is very old criminal language which originally meant to be deported to a penal colony, most commonly Australia, and was then construed as a reference to imprisonment either for life or any shorter term. So, her comment, as simple and silly as it is, does raise a question mark, even if it is a technical one and even if it would never actually be prosecuted.

Speaking of prosecutions, many of you will have heard that Joey Barton has been sentenced for grossly offensive comments. Some people might complain that this is against free speech, but this was decided by a jury, not by a judge. A little bit on that judgment here because I have the sentencing remarks. Many of you will recall that in previous videos I’ve said that these comments must be grossly offensive to cross the threshold of criminality, and that is precisely what we have here because many of them were race-related.

The jury found that they did cross this threshold. The judge said, “You are to be sentenced by me today for a total of six offences of sending electronic communications that were grossly offensive, your purpose, or one of the purposes, being to cause distress or anxiety, contrary to section 11B of the Malicious Communications Act 1988. You were unanimously convicted of these offences.”

The judge referenced the size of Barton’s following on X, formerly Twitter, where he had 2.8 million followers at the time. The comments were made against professional footballers and broadcasters Eniola Aluko and Lucy Ward. The judge prefaced the rest of the judgment so that people could understand it and hopefully you will by reading it or by listening to part of it from me.

The judge said it’s right that I say something about the nature of these offences in the context of a modern liberal democracy that rightly places a high value on the principle of freedom of expression, including freedom of speech. Obviously, these two are subtly different: expression is one thing and speech is encompassed within your expression. The judge stated that freedom of expression is a cornerstone of our society. It guarantees every person the right to exchange information, debate ideas, express opinions, even those that are controversial, unpopular, or offensive.

In a mature society, we must recognise that allowing people to express ideas that others find offensive is one of the costs of this precious freedom. The mere plea of feeling offended by comments about one’s choices or competence can never justify limiting free speech. To do so would undermine the liberal and democratic foundations of our country. However, that freedom is not unlimited. It does not extend to communications which, judged objectively, would an ordinary reasonable person think, by the standards of a reasonable, fair-minded, and informed person in our contemporary, open, just, multi-racial, equal, and diverse society, go so far beyond what is tolerable that they are properly described as being grossly offensive.

The criminal law intervenes only where that high threshold is crossed, where the message is so extreme, degrading, or dehumanising that it exceeds what a free and democratic society can reasonably be expected to tolerate — and where the sender’s purpose, or one of the purposes, is to cause distress and anxiety to the recipient or others to whom they intend the content to be communicated. This context is important for anyone that takes a cursory glance at this case and feels that it somehow infringes free speech. It at least gives you the judge’s balance on this situation, bearing in mind that it was a jury which convicted him and not the judge.

The judge then went through the comments complained of in counts two, four, six, eight, nine, and ten. I won’t read them out; that’s not necessary. You can go and read them if you’re interested. The judge then came down to the sentencing. For each of these offences, a suspended sentence order of 18 months’ duration was imposed. This means that whatever custodial sentence is passed is suspended for 18 months, so he does not go to prison for 18 months unless he breaks any of the requirements or commits further offences, etc. On counts two and four, which were racially aggravated offences, the judge said there will be a custodial term of six months. For counts six, eight, nine, and ten, a custodial term of four months was imposed, with all terms to run concurrently and all suspended for 18 months. If during that 18-month period, he commits any further offence, whether or not of the same type, he will be brought back to court, and it is likely that he would be required to serve some or all of the six-month period.

That is the longer of the two, and they’re all concurrent, all running together. It’s a total of six months. This is not the end of the matter, the judge said. For the next 12 months, he will be subject to a rehabilitation activity requirement for up to 20 days, and he is required to complete 200 hours of unpaid work in the community. There is also a monetary aspect; although this is not a fine as such, he must pay the prosecution costs in the sum of £23,419.80. This is an example of how speech can become grossly offensive. It serves as a warning that a jury found these comments crossed the criminal threshold.

Next time you post something, do have a read of this judgment and consider what sort of remarks were made. I won’t read them out, but they were on-screen if you want to pause and read them and get an idea of what crosses the criminal threshold. Now on to Sandy Peggy, the five health boards, and Dr Beth Upton. Spoiler, I think this will be appealed, and I think the appeal will be successful.

In summary of the Sandy Peggy case: nurse Peggy alleged breaches of the Equality Act in relation to direct discrimination, indirect discrimination, harassment, including sexual harassment and harassment by rejection of harassment and victimisation. The claims were made both against her employer, F Health Board, and the first respondent, Dr Upton, who is a trans woman, as well as a second respondent. The claims related to the use by Dr Upton of a female changing room at Victoria Hospital, where they both worked after the board granted permission to do so.

The case focused on whether the permission was lawful under the act. It also examined what occurred during a meeting between Mrs Peggy and Dr Upton in the changing room around midnight on Christmas Eve 2023 and how the board dealt with a complaint made by Dr Upton about what Mrs Peggy said at that meeting. In short, the tribunal found that the board had harassed Mrs Peggy by failing to revoke the grant of permission to Dr Upton on an interim basis after Mrs Peggy had complained, which resulted in Dr Upton being in the changing room when the claimant was present on two occasions. Furthermore, the tribunal found that the board had taken an unreasonably long time to investigate the allegations against her and made reference to patient care allegations against her on March 28, 2024, instructing her not to discuss the case until a further message a little over two weeks later that confirmed it applied only to the investigation.

The tribunal dismissed all the other allegations against the board and dismissed the claim against Dr Upton. I expect parts of this will be appealed. I’ll come back to discuss these a little later. However, the part I find absolutely astonishing and bizarre states the following: it concluded that the decision did not result in it being inherently unlawful for a trans female who is biologically male under the act to be given permission to use the female changing room at work, but that having the protected characteristic of gender reassignment did not mean that permission to use the changing room was necessarily lawful.

Let’s unpack that logic. It concluded that it is not inherently unlawful to grant permission for a trans female, biologically male, to use female changing rooms at work. I disagree with that as my personal view. But it also states that having the protected characteristic of gender reassignment does not mean that the permission to use those changing rooms is necessarily lawful. So, it’s neither inherently unlawful nor necessarily lawful, which I find absurd; it’s a bit like not really making up your mind.

The tribunal further stated, “In our view, having read all of the documents, there is very far from sufficient reliable evidence to establish as a fact that a trans woman who is legally and biologically male is a greater risk to any person assigned female at birth in a changing room environment at a workplace than another woman assigned female at birth.” In essence, the tribunal is saying there is no reliable evidence that a man is at greater risk to a woman than a woman in the women’s changing rooms. I think that’s patently absurd. On an objective basis, there is of course more risk to a woman from a man than from another woman in women’s changing rooms.

This is not to say that every man poses a risk to a woman or that every trans woman who is biologically male poses a risk; however, is it at all likely that a man poses a greater risk to a woman than another woman in the women’s changing rooms? I think that’s a definite yes. This conclusion, I believe, does not leap to a conclusion against logic, which appears to be what the tribunal is suggesting. There is an inherent risk to women from men, which is not present from other women. Let me know in the comments what you think about that. This is an open discussion, and I mean no insult to anybody, and I don’t mean to be disrespectful in any way, but I feel the facts speak for themselves. Let me know your thoughts in the comments section.