Arrests over “offensive tweets” have left officers paralysed by the fear of oversight investigations and activists exploiting the law. What was meant to safeguard the vulnerable is now stifling free expression and eroding the discretion on which policing by consent depends, argues former police officer Phil Cleary

Britain has long prided itself on upholding free speech as a democratic pillar, so public disquiet over arrests for so-called ‘offensive tweets’ is hardly surprising. With the UK facing scrutiny for its high rate of speech-related prosecutions among democracies, the time has come for Parliament, rather than the police, to define the boundary between free expression and criminality.

In the 1980s and 1990s, as a young police officer, I found the gravest ordeal, barring physical harm, was a summons to the Superintendent’s office. With a glance at the state of my uniform and a steadying breath, I’d knock, enter, and stand to attention. On one occasion, I faced a complaint of ‘neglect of duty’ after opting to issue a verbal warning to youths playing football on a public field. A dog walker had taken umbrage at their foul language. The lads apologised promptly, and I allowed them to continue, with a firm caution against repeat behaviour. The complainant, dissatisfied, formally escalated the matter. My Superintendent, after hearing my reasoning, that the youths were unaware of the passerby and had expressed immediate regret, decided to issue me with advice “make a pocketbook entry next time!” over formal disciplinary action. He informed the complainant, reminding him that he could still instigate civil proceedings against the youths, but, for me, the matter closed.

But today’s legal framework places officers in an untenable position. Statutes designed to protect the vulnerable are increasingly wielded to silence dissent, with the Independent Office for Police Conduct (IOPC) exerting significant, albeit possibly subliminal, influence over police responses. Activists, often legally advised, have mastered the art of invoking terms such as “harassment, alarm, or distress” to draw officers into disputes over mere opinions. A single grievance about an online post can unleash a cascade of consequences, with officers fearing disciplinary repercussions. Should they deem a case unworthy of action, activists can swiftly refer it to the IOPC, alleging inadequate investigation, sometimes over something as minor as not visiting the poster’s address.

This was not Parliament’s intention. Laws were crafted to safeguard the vulnerable, not to criminalise banter or embroil officers in investigating online spats. Yet the spectre of referral looms over every decision, a modern-day sword of Damocles suspended above those tasked with enforcing the law.

The protracted nature of IOPC investigations, often spanning several months, exacerbates the issue, fostering unease from constables to chief officers. Discretion, once the bedrock of policing, is quietly discouraged, replaced by risk-averse rigidity. Advocacy groups have seized on this vulnerability. In high-profile protest scenarios, they orchestrate waves of complaints, not to expose misconduct but to challenge operational tactics, such as containment or stop-and-search. Parliamentary reports have noted that this involves oversight bodies, such as the IOPC, in political controversies, rendering the complaints system a vehicle for activism.

Consequently, senior officers tread cautiously when faced with complaints about online posts. To accuse them of lacking moral courage is unfair, for an IOPC investigation risks their career, reputation, and peace of mind, with outcomes often uncertain. Exercising judgement risks scrutiny, whereas rigid adherence to procedure, however contentious in the public eye, shields them from IOPC censure.

This creates a profound chilling effect. Officers hesitate, not because the law is ambiguous, but because the fallout from a complaint can be severe. The perception is that a single act of discretion, such as determining that a tweet merits no further action, can trigger months of investigation, suspension, or reputational harm, with uncertain outcomes.

Such a system is unsustainable. Policing by consent hinges on officers exercising sound judgement, applying common sense, and making swift decisions in complex circumstances. When the threat of sanctions shadows every choice, confidence gives way to trepidation. This is no way for a democratic police service to function.

Parliament must intervene. Oversight mechanisms were established to ensure accountability in grave cases, deaths in custody, corruption, systemic malfeasance. Their importance endures. Yet they were never intended to arbitrate every social media spat or scrutinise officers’ decisions in matters of opinion.

Incremental reforms will not suffice. Lawmakers must acknowledge that advocacy groups exploit investigations to suppress opposing views. By narrowing the scope of referable complaints, Parliament would not only protect officers but also bolster public confidence in oversight.

Britain cherishes free speech, yet its laws leave officers exposed to activist pressures and disciplinary jeopardy. Oversight bodies, themselves strained, might welcome a more focused remit. Investigations should be confined to cases where police have demonstrably failed to act in cases of social media posts that comprise credible threats to life or incitement to violence, substantiated by evidence that they have been acted upon.

All other social media-based matters should remain within police discretion, with the only other referrals to the IOPC limited to cases involving apparent corruption or abuse of power. This would restore pragmatism to policing, alleviate pressure on oversight bodies, and shield officers from prolonged uncertainty over trivial issues.

This is not about excusing misconduct or disbanding the IOPC, far from it, as they play a vital role in a democracy. But conflating operational judgement with malfeasance undermines officers’ confidence in situations demanding clarity. Parliament must lift this looming threat and restore discretion to the police. Failure to do so risks perpetuating a system where trivial online disputes overshadow serious crime.

That is not justice, it is a deplorable farce, where enforced rigid adherence to rules strips officers of discretion, reducing them to mere robots and inviting accusations that the Law is an Ass.

Phil Cleary is one of the UK’s leading technology entrepreneurs and a former covert operations specialist in British policing. He is the co-founder and former CEO of The SmartWater Group (now DeterTech), the world’s foremost forensic marking company, whose technologies are used by millions across more than 20 countries. A Fellow of the Royal Society of Arts and a recognised expert in security and modern warfare, Phil also holds a Master’s in Military History. His debut political thriller, Elixir, has received critical acclaim for reimagining humanity’s quest for immortality as a global threat greater than AI.

READ MORE:Robotic police units, forensic AI and drone swarms could soon mean no criminal gets away. Tech pioneer and former police officer Phil Cleary sees a future where justice is instant.

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