To what extent should the criminal law be used to tackle the stirring up of hatred against minority groups?
To what extent should the criminal law be used to tackle the stirring up of hatred against minority groups? Should offences be created, and if so how widely defined should they be? These are some of the questions addressed in the Law Commission’s consultation paper 213 on Hate Crime: The Case for Extending the Existing Offences (the CP), which was published on 27 June.
This article discusses only one aspect of the CP: the “stirring-up hatred” offences in the Public Order Act 1986. These offences currently cover three “protected characteristics”: race, religion and sexual orientation. It is an offence to use threatening words or behaviour or to publish, distribute, perform or possess material with the intention of stirring up hatred against those with one or more of the protected characteristics. In the case of racial hatred, the offences also cover abusive or insulting (as well as threatening) conduct, and they also apply in circumstances where hatred is likely to be stirred up (even if there is no intention to stir up hatred). The maximum sentence for all of the offences is seven years.
Prosecutions for the racial hatred offences are rare. They have included the prosecution of Abu Hamza and the trials (which resulted in verdicts of not guilty) of Nick Griffin and Mark Collett. We are only aware of one trial for stirring up religious hatred (which resulted in a verdict of not guilty). Finally, we are aware of one trial for stirring up hatred on grounds of sexual orientation. In 2012, three defendants were jailed after they protested at a gay pride march and distributed leaflets which displayed a mannequin hanging from a noose, and which called for the death penalty for homosexuals.
The Commission has been asked to examine the case for extending the stirring-up offences to cover hatred against disabled and transgender people. Disability and transgender identity are protected characteristics for operational and sentencing purposes, but there are no stirring up offences which apply to them.
Should the offences be extended?
The Commission examines the arguments of principle for and against extending the stirring up offences to protect disabled and transgender people. An assessment is made of whether existing crimes deal adequately with the offensive behaviour, and whether they deter the conduct in question. Existing offences, such as those involving threatening, abusive or insulting conduct in sections 4 to 5 of the Public Order Act 1986, criminalise some of the conduct which would be caught by new stirring up offences. The Commission concludes, however, that there is a unique and specific type of wrongdoing – doing acts which are intended or likely to cause others to hate members of particular groups, but which do not otherwise amount to a crime or encouragement of a crime – which is not explicitly covered by the existing offences. The hatred which stirring-up offences are designed to curb can be seen as inimical to social cohesion by threatening group members’ sense of security and belonging to their communities. The existing offences have no such purpose.
Questions are also raised about whether initiatives short of criminalisation are sufficient to address the problem. The government’s hate crime action plan, for example, includes work with the Press Complaints Commission and the Society of Editors to tackle hate crime on the internet and negative stereotypes in media reporting. The CP also asks whether new offences would have a disproportionate impact on other rights and freedoms, such as the rights to freedom of thought, conscience, religion and expression under articles 9 and 10 of the ECHR.
The Commission provisionally proposes that there is a case in principle for new offences of stirring up hatred on grounds of disability or transgender identity. However, the Commission regards the evidence of a practical need for such new offences as inconclusive and invites consultees’ views on both of these issues.
How should any new offences be drafted?
On the assumption that new stirring up offences are needed, the question arises as to what form they should take. The broad model, used for the offences of stirring up racial hatred, would criminalise threatening, abusive or insulting conduct intended or likely to stir up hatred. The narrow model used for the offences of stirring up religious hatred or hatred on grounds of sexual orientation would be limited to conduct that is threatening and intended to stir up hatred. The scope of the two models is significantly different in another crucial respect regarding freedom of expression.
Freedom of expression
The offences relating to religion and sexual orientation contain specific saving provisions for the protection of freedom of expression. In relation to religious hatred, section 29J of the 1986 Act indicates that the offences do not criminalise proselytising, or ridicule or abuse of religious beliefs or practices. Section 29JA provides that criticism of particular sexual conduct or the urging of persons to refrain from such conduct ‘shall not be taken of itself to be threatening or intended to stir up hatred’ on grounds of sexual orientation. There is no saving provision for the offences of stirring up racial hatred.
It is not clear what these provisions add to the article 9 or 10 assessment the court would be required to undertake in any case. During parliamentary debates on those sections, it was suggested that they would prevent the offences having a chilling effect, and would dissuade over-zealous reliance on the offences by police and prosecutors. The Commission asks: are such express saving provisions necessary or desirable if new offences are created?
The different potential outcomes of the two models for new stirring up offences – if new offences are thought to be necessary – are profound. At one end of the spectrum are defendants who deliberately undertake threatening conduct with the intention of stirring up hatred. At the other, there are defendants who are merely aware that their conduct might be insulting, but who do not intend to be insulting or to stir up hatred, and who happen to act in circumstances where their conduct was likely to stir up hatred (even if they were not aware of this). Although truly trivial cases would not be pursued to trial, the different models clearly cover a wide range of conduct and will fundamentally alter the nature of any new offences.
The other issues under consultation
The CP also deals with two separate legislative responses to hate crime: the complex but important aggravated offences in the Crime and Disorder Act 1998 and the enhanced sentencing provisions in sections 145 and 146 of the Criminal Justice Act 2003.
The CP and the related papers are available at the Commission website. We welcome responses on this, and on the other issues covered in the CP, by 27 September. Responses can be submitted by post or by email.