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trump v munchetty

Trump v Munchetty

Naga Munchetty was reprimanded by the BBC for her comments about Trump’s tweets, but is it the President who should be on trial?

Barrister Olly Jarvis explains..

The BBC recently upheld a complaint against Breakfast TV presenter Naga Munchetty for ‘going beyond what the guidelines allow” in comments she made about Donald Trump who had made references to US politicians Ilhan Omar, Alexandria Ocasio-Cortez, Ayanna Pressley and Rashida Tlaib which included the phrase go back to your own country.

Tlaib was born to Palestinian immigrants. Omar, from Somalia, was not born in America. Pressley is African American, and Ocasio-Cortez’s is from a New York-Puerto Rican family.

Trumps Tweets

Why don’t they go back and help fix the totally broken and crime infested places from which they came.”

“So interesting to see ‘Progressive’ Democrat Congresswomen, who originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they even have a functioning government at all), now loudly and viciously telling the people of the United States, the greatest and most powerful Nation on earth, how our government is to be run,” the president wrote.

Munchetty’s comments

Working as a presenter on BBC Breakfast on 17 July, Munchetty said, in response to a question from co-host Dan Walker about Trump’s tweets:  “Every time I have been told, as a woman of colour, to go back to where I came from, that was embedded in racism.”

Now I’m not accusing anyone of anything here, but you know what certain phrases mean.”

Munchetty said she was “absolutely furious” and went on to say: I can imagine lots of people in this country will be feeling absolutely furious that a man in that position feels it’s okay to skirt the lines with using language like that” 

The BBC’s position

A BBC spokeswoman said the corporation’s Executive Complaints Unit had ruled that “while Ms Munchetty was entitled to give a personal response to the phrase ‘go back to your own country’ as it was rooted in her own experience, overall her comments went beyond what the guidelines allow for”. 

A BBC spokesman said: But it is also evident that Ms Munchetty, despite at the end of the exchange acknowledging ‘I am not here to give my opinion’, did comment directly and critically on the possible motive for, and potential consequences of, the president’s conduct, which by their nature were a matter for legitimate discussion and debate. This, in our view, went beyond what the Guidelines allow for under these circumstances, and on those grounds I am therefore upholding your complaint.”  

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Olly Jarvis’ position

The BBC seem to be attempting to draw a distinction between the words uttered by Trump and the intent behind his use of them.” A matter for legitimate discussion and debate? How would Trump’s actions actually play out in an English or Welsh criminal court?

The first question in considering whether Trump committed a crime is to look at the definition of racial hatred?

Racial hatred is defined in section 17 of The Public Order Act 1986

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

The potential charge for Mr Trump is under section 18

Use of words or behaviour or display of written material.

(1) A person who uses threatening, abusive or insulting words or behaviour, or displays any 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.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling

(4)In proceedings for an offence under this section it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling.

(5)A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.

"If I had the misfortune to land the brief "(which under the cab rank rule for barristers I would have to accept) to defend Mr Trump for the offence of stirring up racial hatred, our conversations pre-trial would be privileged but in this hypothetical situation I am prepared to divulge my advice…"

If I had the misfortune to land the brief (which under the cab rank rule for barristers I would have to accept) to defend Mr Trump for the offence of stirring up racial hatred, our conversations pre-trial would be privileged but in this hypothetical situation I am prepared to divulge my advice…

The tweets come squarely within the definition of section 17, in fact they cover just about every head within the definition, particularly ethnic or national origins. 

Were they likely to stir up racial hatred – section 18(I)(b)?

One only needs to look at the effect these words have had across America and even globally. The prosecution would undoubtedly adduce evidence of the increase in hate crimes around the world since those tweets were sent, proving a correlation. 

Leaving aside an intent to stir up racial hatred for a moment, I would have to advise Trump that any jury would find that his words were definitely insulting. Even if he did not intend them to be so, objectively, they were. 

The final nail in the coffin on that point, if any were needed in trying to defend the tweets as not being insulting would be when the prosecution called their star witness – Naga Munchetty, she was insulted by them. And worse still, the whole reaction was caught on camera, great contemporaneously recorded evidence. 

"Running the defence of ‘my client is just an idiot’ is often the most attractive one to go with, but here, when he’s the leader of the free world, it’s a big ask of a jury."

If Trump instructed me that he had not intended his tweets to stir up racial hatred, as I suspect he would, they clearly did, having regard to ‘all the circumstances,’ section 18 (i) (b). 

Trump’s only option would be to rely on the statutory defence in sub section (5), but it would be hard to get home on that. 

(5)A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or the written material, to be, and was not aware that it might be, threatening, abusive or insulting.

The prosecution might not be able to prove so that the jury were ‘sure’ he intended to stir up racial hatred, but they would only have to prove the second limb (due to the word ‘and’ as opposed to ‘or’, above) – that he was aware the material might be insultingRunning the defence of ‘my client is just an idiot’ is often the most attractive one to go with, but here, when he’s the leader of the free world, it’s a big ask of a jury.

The verdict

I would have to advise Trump to plead guilty, demonstrating remorse, and hope for a lesser sentence, the maximum being seven years imprisonment, though I suspect he would take his chances with the jury.

All this begs the question whether Trump’s words are a matter for ‘legitimate discussion’ or in fact, a criminal court of law?

It seems to me the purpose of section (5) is designed to protect those people who are being racist but are totally ignorant of the fact.

Naga Munchetty’s journalistic observation appears to have considerable merit – that Trump’s words, intentional or not, were ‘embedded in racism’

Olly Jarvis is writer and criminal barrister.

He tweets from @ollyjarviso

Click here to see Olly’s books

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