I don’t know if the Crown Prosecution Service does this sort of thing — normally one would hope not — but I fear that if it wishes to be successful in its case against the BNP leader Nick Griffin it’s going to have to nobble the jury.

Griffin was acquitted of two charges of inciting racial hatred at Leeds crown court last week and the jury was unable to agree a verdict on two further charges. His co-defendant Mark Collett was cleared of four similar charges and the jury was stumped on a further four.

The CPS has said that it wishes both cases to be retried, as well it might considering the enormous amount of money expended so far. West Yorkshire police proudly announced that they had a team of officers working on the case “five days a week, 10 hours a day”.

I’m not sure how many police officers constitute a “team” and West Yorkshire police are disinclined to tell me. But I reckon it’s been a good time to be a burglar in West Yorkshire just recently.

One assumes that the team of police has been painstaking in its efforts to unearth evidence of Griffin being beastly about Islam; certainly there was some minutiae of perhaps questionable relevance dragged into the case against him. At one point he was cross-examined over his reference to Stephen Lawrence, the black lad murdered, allegedly by racists, in southeast London.

Griffin apparently referred to him in a speech as “Stephen bloody Lawrence”, which is unkind and even tasteless, but scarcely the sort of thing for which one should be bunged in chokey. The most serious charge against him — that he referred to Islam as a “wicked, vicious faith” — is still outstanding. Last year the Home Office told me that I could probably get away with calling Islam a “wicked, vicious faith” in a nice column in The Sunday Times, but Nick Griffin probably couldn’t. It all seems a bit harsh on Griffin, though. Why should he be prosecuted for telling people what he thinks of Islam if I’m allowed to get away with it? Person-specific crimes: it will never catch on.

The problem for the CPS — and the government — is that the jury in such cases will be dealing not with matters of fact, but matters of opinion. Indeed, the recorder at Leeds crown court instructed the jury members to put from their minds any question as to whether Griffin was factually right. One of the comments that got the BNP leader into trouble was his warning, delivered 18 months ago, that Britain would one day soon suffer a terrorist attack from home-grown British Muslims. Being prosecuted for fairly accurately predicting the future also seems, to my mind, a bit steep. If the bombs hadn’t gone off on July 7, would Griffin have been more likely to be found guilty?

The charges are too ephemeral, too dependent upon the mindset and political disposition of the juror, and upon what is happening outside of the courtroom, on the streets. That there was something more to the charges seems to me beyond dispute, quite apart from the rather exquisite symmetry of the BNP leader appearing in the dock at precisely the same time as Britain’s best-loved cartoon Islamic bogeyman Sheikh Abu Hamza al-Masri faced similar, if graver, charges.

As part of the operation that netted Nick Griffin, the police swooped on a West Yorkshire BNP activist, Paul Cromie, who, having been alerted to their imminent arrival, switched on a tape recorder. “At the end of the day this whole thing should be . . . well, it’s very political. It’s not coming from senior police. It’s coming from much higher than that,” one officer tells Cromie, shamefacedly, as they rifle through his stuff.

If the result of the court case is bad news for the government, then its timing is even worse, for it exposes the new legislation outlawing the incitement of religious hatred as being quite unnecessary. This new bill was introduced, in the government’s words, to close a small loophole in the law; henceforth, Muslims would be afforded the same sort of legal protection enjoyed by, say, Jews and Sikhs. And yet the very week the legislation came before the House of Commons we had Nick Griffin in the dock facing charges under the existing legislation — charges that related almost exclusively to incitement of racial hatred against Muslims.

So, in other words, the Home Office is wrong and there was no loophole to close. The police and the CPS clearly felt that the existing legislation enabled them to prosecute someone whose alleged target was primarily Muslims and in order to do so they happily classed Muslims as a racial group. I have not yet heard this blindingly obvious inconsistency explained by any government minister.

It is traditional for sopping wet journalists like myself to avail themselves of a useful get-out clause when obliged to defend the BNP’s right to freedom of speech: that court cases such as this benefit the party, giving it publicity. I’ve trotted this sort of thing out before — but it now seems dishonest. It implies that the BNP was in some way complicit in the charges brought against its leading members. Clearly it wasn’t. Nick Griffin was prosecuted for speaking his mind. There’s no get-out clause this time.

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