Got a religious joke? Tell it to the judge

Andy Todd on move that turns comedians into criminals

Oh my God! Did you hear what Frankie Boyle said about the Protestant schoolchildren and the Catholic priest? No? Well, that's because the police locked Frankie up and threw away the key. Welcome to Scotland in 2012, where if you don't watch what you say, you could find yourself arrested.

Last week, Holyrood made it a criminal offence to make comments intended to incite religious hatred.

Of course, the Scottish government says that jokes are exempt from this new law. The government's website states that: ‘It will be a defence that the behaviour was in the situation "reasonable", to ensure that artistic performances… are excluded.’" But who decides what is reasonable?

Is Frankie Boyle reasonable? Jerry Sadowitz? Even the venerable Billy Connolly has been known to still tell jokes which falls on the wrong side of public opinion.

For those with legal knowledge, ‘reasonableness’ via the ‘reasonable person’ is a familiar test. But what the devil does the reasonable person think? In practice, as lawyers know, the ‘reasonable person’ is the person who enforces the law. In the street, this will be the police. In courts this will be the judge. And it will be the policeman or judge who will  decide what is or is not reasonable.

And judges and policemen are not known for their sense of humour.

Do you want to stand in the dock and explain why your off-the-cuff remark that ‘the Pope's a Fenian’ was an ironic oxymoron and a reasonable artistic choice? What if no one laughed? How understanding will the courts be when your audience is the one complaining?

And, critically, the law favours an ‘arrest first, ask questions later’ approach to comedic criticism. It will be up to the comic, after he or she is arrested to show that what they said and how they said it ‘was, in the particular circumstances, reasonable’. Innocent until proven guilty? No, guilty until you can prove you didn't mean it. Or you did mean, just not like that.

Oh, and if you are reading this and thinking, I'm not Scottish this doesn't affect me, then think again.  According to the Scottish government everyone in the world is guilty.

The new law applies to anyone outside Scotland who makes any comment which is ‘intended to be read, looked, watched or listened to primarily in Scotland’. So, if you have a podcast which you record in Timbuktu but has a proportionately high listenership in Tillicutry, perhaps you should let your solicitor listen to it first?

And if you think this is a trivial offence, think again. You could be locked up for five years in a really dark and horrible place. Scotland.

The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, to give this new law its full title, is a shocking, crude and flawed attack on the principles of free speech. It presumes criminality and promotes self-censorship over freedom of expression.

Let's imagine for a second, if David Cameron decided nationalism created bigots. Let's suppose the Coalition government made expressing a nationalist view a crime. The Scottish Government would be outraged. Yet, the Scottish Government believes it can pick and choose what speech or thought to criminalise.

Let's also imagine for a second, that an African state made the promotion of homosexuality illegal and threatened to jail anyone in the world who ever enjoyed watching Graham Norton. The right-thinking world would condemn that country. Yet, we stand idly by while Scotland criminalises you. For thinking. And talking. And not using nice words like ‘please’ and ‘thank you’.

If this were any other country, on any other matter, we would boycott them. And if they had oil, we would introduce sanctions and invade their country, throw out the Government and ensure the leader was hung by his neck and strangled on national telly.

Scotland, as the the Scottish government continuously reminds us, has lots of oil.

Just saying...

Published: 20 Dec 2011

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