Cambridge University’s embattled “academic superstar”, Professor Jason Arday, reported a fellow academic to the police after being challenged over apparent inconsistencies, errors and possible plagiarism in his work – raising troubling questions about the use of harassment law as a shield against awkward scholarly scrutiny in an increasingly litigious, low-trust society.
The academic was Dr David Harris, Professor Emeritus at Plymouth Marjon University and one of the first scholars to raise concerns about Arday’s doctoral thesis and several subsequent peer-reviewed publications on race, inequality and education, including his treatment of concepts such as structural racism, whiteness, decolonisation and racial microaggressions.
It was not Harris’s first encounter with institutional hostility arising from his scrutiny of critical theory and related intellectual traditions, including Critical Legal Studies, Black Studies and strands of Marxist and Frankfurt School thought. Last year, Marjon revoked the emeritus title he had held since retiring in 2011 after he published a monograph critically examining the body of ideas now commonly described as critical race theory. Internal emails later obtained through a Subject Access Request showed senior administrators describing his research as “controversial” and suggesting that the University should “probably sever ties” with him. Following an intervention by CAF, however, the University reversed its decision and restored the title earlier this year.
That monograph formed part of a wider research programme Harris had pursued for several years, examining how such ideas and frameworks were used in empirical educational research. Arday’s work was therefore directly relevant to his interests, but it came to Harris’s attention only amid the considerable publicity surrounding Arday’s appointment as Professor of Sociology of Education at Cambridge in March 2023.
Harris’s opening email to Arday, sent on 4 May 2023, was almost absurdly polite: unmistakably scholarly, but also courteous and measured. He explained that he was reviewing Arday’s work as part of a wider research project and attached a detailed document setting out concerns about what he described as “puzzling similarities” in the reported data, repeated passages and possible failures of attribution. The covering email concluded simply: “I would welcome any response.”
When none came, Harris sent a brief follow-up a week later.
Arday replied that same day but did not address the substance of Harris’s concerns. Instead, he recast Harris’s intervention as little more than pettifogging criticism of spelling and grammar, and as evidence of a failure to appreciate the structural racism and ableism which, in his view, such scrutiny helped to perpetuate.
It was, he wrote, “disappointing that you have imposed yourself on me in the manner you have, i.e. without any reflexivity or humility whatsoever”. He continued:
“You will likely know, from your literature reviews not from experience, that the academy is a hostile place for Black scholars. There are very few of us that become professors, and even fewer in the fortunate but precarious position I am in, which is having the platform to represent and uplift other people of colour even beyond academia. As a Black, autistic man with global developmental delay and severe dyslexia, the odds are even less likely; my hope has always been that people like me feel inspired to pursue academia, and that people like you can make space for this.”
“Instead of spending your time trying to dismantle racism and ableism,” Arday added, “you have spent what I assume is hours combing through my work looking for mistakes.”
Harris was, he said, “a monument to the fact we live in a society where grammar is valued above equity”. He ended with the warning: “Anything further from you will be considered bullying and harassment.”
Harris nevertheless replied, prefacing his remarks with an expression of admiration for Arday as someone who had overcome considerable personal and professional adversity, before returning to the academic issues and correcting what he regarded as an inaccurate and damaging account of his own disciplinary history.
What followed is now a matter of public record. Arday contacted the Metropolitan Police to lodge a complaint of harassment against Harris. Because Harris is based in Plymouth, the matter was referred to Devon and Cornwall Police, which declined to pursue it.
As an organisation that defends academic freedom and freedom of speech within the law, CAF takes no view on the ultimate merits of the allegations concerning Arday’s work. We are, however, deeply concerned by what appears, on the evidence available to us, to have been an attempt to use the criminal law to suppress legitimate scholarly scrutiny.
It might be said that no great harm was done, since the legal threshold for harassment is high and the police declined to pursue the complaint. But that assumes that the threshold will always be properly understood and applied at the outset. Where lawful speech is recast as criminal harassment, much may depend on whether those receiving the complaint recognise just how demanding the law actually is, rather than allowing subjective offence or the complainant’s own characterisation of the conduct to stand in for the statutory test.
In this case, that statutory test is found in the Protection from Harassment Act 1997. Section 1(1) prohibits a person from pursuing a course of conduct which amounts to harassment and which they know, or ought to know, amounts to harassment. Under the Act, a “course of conduct” must involve conduct on at least two occasions, although two instances do not, without more, establish harassment. Section 2 makes breach of that prohibition a criminal offence, while section 3 creates a civil remedy through which damages or an injunction may be sought.
Since Arday complained to the police, it was presumably the section 2 offence, rather than the civil remedy under section 3, that was under consideration. But the substantive threshold is demanding in either context. A civil claim rests on the same section 1 prohibition, and, at the outset of Hayes v Willoughby (2013), Lord Sumption described harassment as a “persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person”, calculated to cause, and actually causing, alarm, fear or distress. Because the same statutory concept of harassment governs both the tort and the criminal offence, the conduct must, even in a civil claim, be grave enough to sustain criminal liability under section 2.
Lord Nicholls explained the nature of that threshold in Majrowski v Guy’s and St Thomas’s NHS Trust (2006):
“[C]ourts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.”
Where the alleged harassment consists of speech, the domestic courts have warned against silencing expression on the basis of subjective assertions of offence or insult. In publication cases, they have also stressed that even robust criticism will not ordinarily amount to harassment.
The European Court of Human Rights has likewise repeatedly underlined the importance of academic freedom and scholarship to the functioning of democratic societies. In Erdoğan and others v Turkey (2014), it held that academic works addressing matters of public concern should receive the highest level of protection under Article 10. Its case law also recognises that the “public watchdog” role is not confined to professional journalists, but may extend to academics and researchers contributing to public debate.
Measured against those principles, nothing in the correspondence reviewed by CAF remotely approaches the threshold for harassment. No doubt it would have been more prudent for Harris not to send a further response after Arday warned that any additional contact would be treated as “bullying and harassment”. But, viewed in the context of the exchange as a whole, one additional reply arising directly from a dispute over published scholarship could hardly be described as the persistent, oppressive and unacceptable course of conduct described in Hayes and Majrowski.
In taking no further action, Devon and Cornwall Police got the decision right. But as the recent cases of Maxie Allen, Darren Brady, Julian Foulkes, Kellie-Jay Keen, Markus Meechan, Jennifer Swayne, and David Wootton demonstrate, police forces have not always covered themselves in glory when deciding whether lawful but contentious expression warrants arrest or investigation under broadly framed communication offences.
Harris’s experience does not, of course, establish a pattern, and it would be wrong to suggest that academics routinely report their critics to the police. Even as a one-off, however, it augurs badly for the future in an increasingly litigious and low-trust society if criminal harassment law begins to look like an available response to awkward scholarly criticism.
Part of the danger is that the consequences of an allegation of harassment, or another speech-based allegation of a similar kind, can begin long before a court determines whether the legal threshold has been met. The police may investigate, arrive at an academic’s home in full view of their neighbours, request a voluntary interview under caution or, where the legal test for arrest is satisfied, take the still more serious step of arresting them. Stress and uncertainty do not lie dormant, waiting for a charging decision – and nor, for that matter, does reputational damage. Once the whispering begins within a university department, professional consequences may start to accumulate of their own accord. In that sense, the process can itself become punitive, exerting a powerful chilling effect even where no charge ultimately follows.
Academics will be less likely to engage in robust debate and scholarly inquiry – testing published claims, identifying apparent errors or raising concerns about research integrity – if doing so exposes them to allegations of criminal wrongdoing and the prospect of a prolonged police investigation. That is why any tendency to reach for the criminal law when confronted with academic criticism must be checked before it becomes, if not normalised, then at least an attractive means of avoiding difficult but legitimate questions.