Sandie Peggie and Joey Barton are victims of judicial tone policing

Two recent yet unrelated judgments tell a remarkably similar story about the priorities of British justice. In a criminal court last Monday, former footballer Joey Barton received a suspended sentence for firing off offensive tweets at some minor celebrities. And in an employment tribunal last week, nurse Sandie Peggie was found to have been harassed by NHS Fife – yet the trust was cleared of wider bullying allegations made by Peggie. In both cases, the law aligned itself with middle-class sensibilities, revealing courts that now act as bulwarks against offensiveness.

What had Barton done to have the book thrown at him? The offence was ‘sending grossly offensive electronic communications with intent to cause distress or anxiety’. Barton said it was ‘a joke that got out of hand’. The judge was unmoved, handing down a suspended sentence to ‘deter’ future offending.

It must be admitted that Barton’s posts – made across January and March last year – were royally offensive. He asked BBC presenter Jeremy Vine whether he’d been on ‘Epstein Island’ and said he’d ‘phone the police’ if he saw Vine ‘near a primary school on ya bike’, before adding, ‘You big bike nonce ya’. He also superimposed the faces of football commentators Eni Aluko and Lucy Ward on to a photo of Fred and Rose West, and dismissed Aluko – who was born in Nigeria – as ‘there to tick boxes’. For this, the judge ruled his comments ‘racially aggravated’, placing them in a ‘higher culpability category’.

But are these insults really matters for our criminal courts? Barton’s posts resemble the taunts that flew around my school playground. And the judge in his case seems to have been cut from the same cloth as my po-faced teachers of yore – performing outrage at childish banter and taking satisfaction in issuing tellings-off (or, in those days, canings). Is this the role we need the judiciary to play in the lives of adults?

I don’t underestimate the impact of Barton’s posts. I believe Aluko when she says they had a ‘damaging impact on my life and career’. But is causing reputational harm really a criminal matter? The judge’s remarks on this feel contradictory: he says that ‘robust debate, satire, mockery and even crude language may fall within permissible free speech’, yet insists that vilifying comparisons or insinuations ‘forfeit their protection’. But vilification is a civil matter, not a criminal category. We can only assume that, for Judge Andrew Menary KC, Barton’s posts crossed some hidden line of ‘impermissibility’ – a line visible only to King’s Counsels.

In the Peggie tribunal, the nurse’s language about the male in her changing room was also treated as a problem. Her private messages were said to have been ‘disparaging’, gone ‘beyond the simple expression of a gender-critical belief’, and showed ‘a dismissive attitude towards gender reassignment’. These are moral judgements about private comments expressing frustration. She was accused of being ‘transphobic’ (‘transphobia’ has no legal definition) and of holding ‘negative attitudes’. It is as if her tone of speech was on trial.

Yet the real questions were simple: was there a man in the women’s changing room? Were her objections reasonable? Was her belief protected? Were her rights infringed? The language she used to express concerns about the presence of Dr Beth Upton – a biological man who identifies as a woman – in the female changing room at Kirkcaldy Hospital on Christmas Eve 2023 was irreverent. Women should not have to speak ‘correctly’, politely or in legally calibrated language to defend their basic right not to undress with men. Reading the judgment, you might think the tribunal was convened to adjudicate a breach of etiquette in Peggie’s phrasing, rather than the unfairness of having a hulking bloke in the space where she changes for work.

In both cases, we get strong whiffs of condescension. The ways in which the ex-footballer and the nurse express themselves – demotic, blunt, unvarnished – are treated not merely as different from middle-class politeness, but as suspect, even criminal. It is easier to feel for Peggie than Barton: Peggie simply wanted dignity; Barton was crude and derogatory for no reason. Yet both are criticised by the same measure by judges who clearly regard themselves as an entirely better class of person.

This sense of being ‘better’ is expressed through disapproval of language and attitude. Barton’s mockery of DEI and Peggie’s supposed ‘transphobia’ offend against middle-class values as much as manners. But our courts are not there to enforce the moral code of the professional classes. They are there to deliver justice for all – regardless of how we speak, or what beliefs we hold about contemporary shibboleths.

James Martin Charlton is an English playwright and director. Follow him on X @jmc_fire.