Actually, Paul Gascoigne's request to his black bouncer (alleged to have been "can you smile please, because I can't see you") is indefensible. So no, I have nothing to say in Gascoigne's defence.
However just because I can't find anything good to say about Gascoigne's comment doesn't mean the ex-footballer should have got a criminal conviction.
Gascoigne was apparently charged under section 31(1)(c) of the Crime and Disorder Act 1998. A person is guilty of this offence if he commits an offence under Section 5 of the Public Order Act 1986 which is racially or religiously aggravated. That's to say to commit an offence under the 1998 Act you must have committed an offence under the earlier Act with some religious or racial aggravation added on.
Section 5 of the POA says you're guilty of an offence if (inter alia) you use "threatening or abusive words or behaviour . . . within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." Gascoigne certainly didn't use any threatening behaviour, so the allegation must have been that he used "abusive words".
Is "Can you smile please, because I can't see you" abusive? It suggests of course that by reason of the bouncer's dark skin he was hard to see. But that's not exactly abuse. Calling someone a fat cunt is abuse. Gascoigne's words may have been humiliating and insulting, but it isn't an offence to humiliate or insult someone (actually we know this specifically in the case of s.5 because it contained the word insulting until February 2014, when it was removed from the Act).
If Gascoigne's words aren't abusive he hasn't committed an offence. And were his words likely to cause harassment, alarm or distress? Harassment suggests a continuous course of behaviour; this was a one-off. A bouncer employed by Gascoigne is unlikely to have felt alarm. Distress seems a bit nearer the mark, although I'm surprised Gascoigne's barrister didn't argue that distress requires a degree of extreme pain beyond annoyance and offence.
So it looks as if Gascoigne had a reasonable chance of acquittal on either the meaning of abusive or the meaning of distress. And yet he, presumably on the advice of his brief, decided to plead guilty. Strange.
I worry desperately about the use of the law to impose liberalism's norms on public discourse. In case you think I'm alone in this, here's Matthew Norman, writing on the Gascoigne case recently in the Independent - "Personally, I think the infringement of the criminal law into matters of taste is clumsy and generally counterproductive, and that the sanctity of freedom of speech outweighs the need to protect people from being offended . . . in what surreal madhouse is an offensive joke automatically conflated with a criminal offence? Here we find the quality of mercy strained to destruction".
There is a place for constraint of free speech. Well actually two of them. The first is that if the words are defamatory you should be able to secure damages in the civil courts. The second is where the words either put a person in fear of violence, or make it likely that violence will ensue. Free speech is too precious to mess about with in any other circumstances.
And the best remedy for people like Gascoigne is to know them, pity them and, if persistent, shun and avoid them.
