Bob Vylan: Is there a clear legal basis for a case against them?

RTÉ News​

2 days ago

Police in the UK have confirmed they are investigating a performance by punk duo Bob Vylan at the Glastonbury Festival, after the group's singer led chants of "Death to the IDF [Israel Defence Forces]" during their set on Saturday, 28 June.
Several UK-based politicians and commentators have condemned the remarks, with some claiming they amount to antisemitism.
What chance is there of the case progressing to prosecution or trial?
To try to understand that we asked legal experts where UK law draws the line on protest, free speech, hate crime, and public order.
What are the police investigating?
On Monday evening, Avon and Somerset Police confirmed they had "recorded" Bob Vylan's Glastonbury performance as a public order incident and have launched a criminal investigation into both the band and Irish rap trio Kneecap, based on potential hate crime or public order offences linked to their sets on Saturday.
It has not yet been defined which parts of either group's performances are being examined as part of the criminal investigation.
Within minutes of Bob Vylan coming off stage at the festival, several accounts online accused the group of antisemitism.
During their set, they had led the crowd with chants of "Death to the IDF," and "Free, Free Palestine."
Over the days that followed, the band faced both support and criticism for the language used.
While most vocal support came from pro-Palestinian fans, activists, and fellow artists, the band has faced significant backlash from politicians, commentators and prominent Jewish figures, including the UK Chief Rabbi.
On Sunday, British Prime Minister Keir Starmer labelled the comments as "hate speech."
Culture Secretary Lisa Nandy followed on Monday, arguing that because Israel's military conscription system requires all young people to serve in the military "chanting death to the IDF is equivalent to calling for the death of every single Israeli Jew."
Despite pushing back strongly against accusations of antisemitism on Tuesday, and saying they were "being targeted for speaking up," the band have since been dropped by their agency and management, had upcoming shows cancelled, and now face the prospect of a potentially lengthy legal battle.
What would form the basis of a prosecution?
While the police can investigate and recommend any charges, it is ultimately up to the Crown Prosecution Service (CPS) to launch a prosecution.
Prof David Mead, an expert in protest and public order law at the University of East Anglia, says any prosecution would have to pass two main legal tests.
"First, the CPS would need to be satisfied that there is enough evidence to provide a realistic prospect of conviction. Second, they would have to decide whether bringing charges is in the public interest," Prof Mead said.
Prof Mead added that a conviction would ultimately require a jury to be satisfied beyond reasonable doubt that all elements of the offence are proven, including the words used, how they were intended, and their likely impact on the audience.
The legal burden: What prosecutors must prove
Jonathan Hall KC is a leading UK barrister and the Independent Reviewer of Terrorism Legislation appointed by the UK's Home Secretary.
Speaking to RTÉ, Mr Hall said the key piece of legislation that could be used against the member of the group Bob Vylan who uses the stage name 'Bobbie Vylan' would be Section 18 of the Public Order Act 1986.
"The principal candidate for people who make public pronouncements that could bring down hatred on groups, on minority groups or protected groups, is what's called stirring up racial hatred," Mr Hall said.
However, he added that the police could struggle to bring charges under that legislation "unless their investigation turns up something that we don't know about."
"It's quite hard to show off the back of saying 'Death to the IDF' that he intended people in the audience to hate Jews," Mr Hall said, "that's because what he said was to a military of a country - although, there is an exceptionally strong link between Jews and that country."
There is another possible interpretation of that same offence, Mr Hall said, that even if Bobby Vylan "didn't intend" people in the audience to hate Jews "he must have known that was the likely effect."
"Again, I think it's quite hard to prove the likely effect of saying, 'death to the IDF' that people are going to hate Jews, rather than just be very hostile towards that military body," Mr Hall said.
Prof Mead agrees that the key legal test hinges on interpretation.
"The battle is this: should 'Death to the IDF' be seen as aimed at stirring up hatred against the Israeli military, or against Israelis as a people more broadly? Only if it targets a group defined by race or nationality can the offence possibly be made out," he said.
When does protest cross into harassment?
However, Prof Mead says another charge could potentially be brought against Bob Vylan under section 5 of the Public Order Act 1986, which covers threatening or abusive language likely to cause harassment, alarm or distress.
"This is the most commonly used public order 'speech' crime as it is easiest to prove and thus very likely here that CPS would go for it," Prof Mead said.
The CPS would only need to show that someone present was likely to feel harassed or alarmed, even if no one actually did, a threshold already established in case law, Prof Mead explained.
Mr Hall also said it would be possible to bring a case on those grounds but that he would "have to see what the investigation shows, because it's hard to prove that he [Bob Vylan's singer] realised that there were Jews in the audience, and he was saying this in order to harass them."
In a statement on Tuesday, Bob Vylan attempted to clarify their position saying: "We are not for the death of Jews, Arabs or any other race or group of people," adding that they "are for the dismantling of a violent military machine" that "has destroyed much of Gaza."
Whether or not that defence holds weight would depend heavily on intent, which is central to any criminal prosecution under UK law, Mr Hall says.
"The 'intending' is really important with criminal law, particularly with what you call speech offences," he said.
"From a criminal law perspective, the circumstances in which you make it a crime to say something are limited. One of the key limits is what do you intend, or what do you believe is going to happen?"
Referring to the music of NWA, a hip-hop group that rose to prominence in Compton, California in the 1980s, Mr Hall said there are examples in their music which is "implicitly saying 'kill the cops.'"
"No one's going to say that's what they were intending anyone should do as a result of it," he said.
"I think that if you had a prosecution of someone involved in a music festival, they would inevitably say, 'I'm a performer, I'm on stage. How can you begin to prove that I meant that like some gang lord telling his lieutenant to carry out a hit?'"
How does this compare to other recent cases?
In recent days, a number of prominent UK politicians and commentators - including the Conservative Shadow Home Secretary Chris Philp - have likened the situation to the case of Lucy Connolly.
Connolly was jailed for 31 months in October 2024 after using social media to call for hotels housing asylum seekers to be set on fire during the Southport Riots last summer.
In a post on X, Mr Philp said of Bob Vylan "they should be arrested and prosecuted – just like some of those who did the same during the riots."
The case has also reignited claims of a so-called "two-tier" approach to policing.
Andrea Jenkyns, a Reform UK mayor, said that if Bob Vylan are not arrested over their chants, it would be evidence of a "two-tiered justice system."
But there is little legal basis for that claim, according to Prof David Mead.
"The idea of a 'two-tier' criminal justice system following the conviction of Lucy Connolly is, in my view, very misplaced. The IDF is a powerful state army thousands of miles away. Those seeking refuge in the UK are vulnerable private citizens at immediate risk should anyone take up her suggestion," Prof Mead said.
Steve Kuncewicz is a partner at a law firm in Manchester and specialises in legal issues involving social media. In the Lucy Connolly case, he said, there was a "very different set of circumstances...There's an awful lot of other evidence that went into that case."
"That was a very specific call to action to cause harm to a very specific part of the community. There was a real risk in... the Southport riots, that that would be likely to happen."
"It's a recurrence that's being drawn, but again, it's a very dangerous one, and it's an incorrect one. It's the two completely different kinds of incidents."
The likeliest outcome?
Ultimately, any prosecution would hinge on proving intent, that the Bob Vylan chant was meant to stir up racial hatred or harass Jewish people.
"At the moment, I think that off the back of what I've seen from the footage of Glastonbury, I'm sceptical that they would have that," Mr Hall said.
He's also, he says, "sceptical that you could prove in the course of law that he was using the IDF as a substitute code word for Jews."
In the current climate in the UK, Mr Kuncewicz believes the wider political pressure could still influence how police approach the case.
"Whatever happens, it's going to be very, very heavily scrutinised. But I do think given the current atmosphere we're in, the police may feel a bit more compelled to make an example here because they might see it as an incitement to violence."