Historical judgment

Despite the recent high-profile 'Holocaust denial' libel trial, lawyers are not convinced that new legislation is needed to combat race hate, reports Linda Tsang

The repercussions of a single case can cause a seismic shift in the criminal justice system.

The case of Stephen Lawrence led to a high-profile inquiry and ultimately, if not to a total change in the culture of how ethnic minorities are treated, it at least led to the recognition of the pervasiveness of 'institutional racism', and how that should and could be stopped.And it is not just the matter of how the colour of a person's skin can affect how they are treated by the legal system that has been considered by that system.

The courts have been also been considering the issue of anti-semitism and different views of history.Whether or not the courts are the proper place to confirm history, the so-called 'Holocaust denial trial' had David Irving suing the historian Professor Deborah Lipstadt and her publishers, Penguin, complaining that she had defamed him in her book Denying the Holocaust.

He said that her description of him as an anti-semite, a Hitler partisan and a bogus historian was libellous.

The trial lasted two months and was later dramatised by Channel 4.

The judge, Mr Justice Gray, rejected Mr Irving's case, and in his 300-page judgment concluded that Ms Lipstadt was right.What any high-profile case does is to give the oxygen of publicity to the views of the parties, and what the 'Holocaust denial trial' did was to raise awareness of what the Holocaust deniers' views are and their methods of promoting those views.But before the trial had even started, the Institute for Jewish Policy Research had set up a law panel in 1998, made up of chairman Anthony Julius, a consultant at Mishcon de Reya, who as a solicitor-advocate was Ms Lipstadt's junior counsel; Geoffrey Bindman, senior partner at Bindman & Partners; Professor Geoffrey Jowell QC, professor of public law at University College London; Jonathan Morris, a partner at Paisner & Co; barrister Dinah Rose, at Blackstone Chambers; and Professor Malcolm Shaw, Sir Robert Jennings Professor of International Law at Leicester University.The panel's brief was to go through an inquiry and research process, including calling expert witnesses, to look at how to combat Holocaust denial through the law in the UK.The panel's report was completed within a few weeks of the judgment in the 'Holocaust denial trial', and as Mr Julius says in the report: 'The deniers themselves are thinking fast to discredit the judgment.

Their Web sites are thick with excuses and explanations: Irving was not given a fair trial; the judge was an "establishment figure"; oppressive tactics brought the doughty Irving down.

Deniers cannot be convinced of either the wickedness or the idiocy of their cause.

For them, the Jews are devils who have bewitched the world; and they, the deniers, are the white magicians who can lift the spell.

This is about as close as deniers get to a reasoned defence of denial.

It is fanciful, inconsequential stuff, pernicious only if taken seriously.

Irving and other anti-semites take it seriously.

The question is whether anyone else does, or is likely to.'Unlike Europe, where laws against Holocaust denial exist in six countries - Austria, Belgium, France, Germany, Spain and Switzerland (and also in Israel) - the current laws on incitement to racial hatred in the UK do not have the effect of prohibiting the activities of Holocaust deniers.

In March 1997, Mike Gapes MP tabled the Holocaust Denial Bill in the House of Commons which would have amended existing incitement to hatred laws to criminalise Holocaust denial in England and Wales.

The Bill received some cross-party support, but was given insufficient parliamentary time to proceed beyond the committee stage.

The present Labour government has undertaken to examine the case for introducing Holocaust-denial legislation.The current legislation dealing with racial hatred is mainly contained in Part III of the Public Order Act 1986.

Section 18 outlines the principal offence, which is that of incitement of racial hatred through words, behaviour or the display of written material.

The panel found that current legislation against hate speech does not, in effect, prohibit the production and dissemination of denial material.

There are a number of issues relating to the enforcement of the racial hatred legislation that are a cause of concern to anti-racist campaigners.

For example, the consent of the Attorney-General to prosecution is required, and this is rarely granted.

The Commission for Racial Equality has submitted many requests to the Attorney-General that have been refused.

And the requirement for consent adds an extra level of bureaucracy that adds delays to the process of prosecution, and may discourage the Crown Prosecution Service from putting cases forward.But there are problems in singling out one particular religion for special treatment.

One Asian lawyer argues that 'this could open a whole Pandora's Box, with other religions objecting and wanting that religion to have different treatment as well'.And Peter Herbert, chair of the Society of Black Lawyers, says: 'Despite the existing legislation and the fact that the Lawrence inquiry and its aftermath have raised awareness of racial issues, it would be useful to have an extension of the existing laws to cover religious hatred.

But I have my doubts about how you could make Holocaust denial itself a crime - would it be someone who denied that it ever happened, or on a sliding scale where someone claimed it was not as serious in terms of the numbers who died? And sadly, it is not unique - it is not the only holocaust in history, you could argue that that is what happened in Rwanda, Cambodia, and even Australia.

You would have to cover them all, although Judaism may come in for different - not special - treatment.'The Jewish minority is deemed to be encompassed by the phrase 'ethnic origins'; that is, in this context Jews are defined as comprising an ethnic and not a religious group.

The panel argued that this is unsatisfactory, as there may be an element of religious hatred in the perpetration of some anti-semitic crimes, such as desecration of synagogues.

The panel also acknowledged that there is also evidence of hate crimes with a religious dimension being suffered by other minorities, such as Muslims.The panel found that no one had been prosecuted under the Public Order Act specifically for producing or disseminating Holocaust-denial literature, despite claims of the Attorney-General and successive home secretaries that prosecution would take place where denial material were published with the intention of inciting racial hatred.

And it also found that the legislation is framed in such restrictive terms that it discourages the prosecuting authorities from taking action other than in cases where the incitement to hatred brings a clear threat of violence or disorder.But apart from the practicalities of how to frame a new crime of Holocaust denial, there is the wider legal framework - once the Human Rights Act 1998 comes into effect in October this year, which guarantees the freedom of expression, criminalising Holocaust denial could be seen as infringing that right.As Mr Julius says: 'To criminalise it seems disproportionate to the threat that the deniers pose.

Subject to some refinements to the existing laws, the real question is enforcing the existing laws rather than adding to it.' The unanimous conclusion that the panel reached is that the present risk that Holocaust deniers pose can best be dealt with by education.

It concludes: 'Whatever the extent to which the law might be used to penalise those who propagate Holocaust denial, the law should not be regarded as a tool for countering general ignorance about the Holocaust.

The criminal court is not a proper place for the teaching of history: it is the responsibility of other institutions to raise awareness of the Holocaust, and thereby invalidate the distortions of the deniers.'

Linda Tsang is a freelance journalist