Select Committee on Religious Offences in England and Wales First Report

CHAPTER 7: Freedom of Expression

79.  The European Convention on Human Rights gives equal status, in Articles 9 and 10, to, respectively, freedom of thought, conscience and religion and freedom of expression. Both are, however, qualified rights: they may be restricted by the state in certain circumstances, for example, on grounds of public safety, order, morals or to protect the rights of others. These Articles have been a major preoccupation in our deliberations, and have exercised the minds of many witnesses. References to them occur throughout this report. In Chapter 6 we considered incitement legislation generally, but there may be value in separate consideration of freedom of expression in the context of religious offences.

80.  The "incitement" Clause (Clause 2) of the Religious Offences Bill, like its predecessor dropped from the 2001 Bill, is intended to fill a gap, treating religious incitement the same as racial incitement as it is dealt with in part III of the Public Order Act 1986. In the view of the British Humanist Association there are "essential differences between race and religion which affect the degree to which freedom of expression can legitimately and proportionately be restricted. Restrictions are far more easily defended in the case of race (and to a large extent of gender, sexual orientation and other common grounds of unwarranted discrimination and prejudice), since race is in a sense without content: it has no ideology, teachings or dogma; organisations are rarely based on racial or ethnic groups and when they are they exercise little power in the world. What is at issue when people are characterised by or criticised for their race is their irrevocable identity as individuals or groups of persons"[85].

81.  On the other hand, religion is closely bound up with race or nationality in many communities, and is inextricably part of their identities. The Sikhs, Jews, and others have ethnic identities, but they also belong to discrete religions. It cannot be right that incitement to hatred of Sikhs is against the law if incitement to hatred of Christians or Muslims is still permissible. This could lead to court cases under Article 14, read together with Article 9 of the convention, in that freedom of expression has to be exercised without religious discrimination.

82.  For his part, the DPP said: "… we are very wedded to the idea that people can say what they like within reason, and a good thing too. I am quite sure that prosecutors who have grown up over the last 20, 30, even 40 years will have seen the way that what we see on television is very different from what we saw a few years ago and that generally we are much freer to say, show whatever things than we were a long time ago. That must inform, for instance, our attitude (to change the subject completely but I think it relevant) to obscenity. When we get things in now for the possibility of prosecution …we attempt ... to move reasonably in scale with what we as citizens experience before we walk into the office. Therefore, taking the ECHR on board, which reinforces our right to say what we like within reason, and speaking as a citizen rather than as a prosecutor, I agree [with your reservations about turning it into a crime, going round saying that you hate things]. The legislation is drafted so that it is not just the intention but the likelihood that hatred will be stirred up; [that] does move the law quite far in the other direction because you do not even have to intend that racial hatred be stirred up, under the current law. It just has to be an objective fact that it is likely to be stirred up by what you have to say, and I suspect that that is the bit of the Act which the police and prosecutors would have the most difficulty with".[86] The police did say that in their discussions about community relations they welcomed the addition of incitement to religious hatred, to add to their armoury[87]. There are however even more problems about incitement to religious hatred than to the racial variety. In addition to the difficulty of proving intent (against a defence of fair comment[88]) is the implication for society in general. This has been described as the "chilling effect", or self censorship motivated by fear that robust expressions of opinion may be judged to have overstepped an undefined boundary and become the subject of prosecution.

83.  The gap between criminal incitement and permissible freedom of expression is narrow, perhaps even more so in the case of religion than of race. There is no difficulty in recognising substantive criminal acts such as those of violence, threats or harassment, or even inchoate offences such as incitement to violence (of any type) or conspiracy, aiding and abetting. But it is more difficult to define the point at which a particular expression takes on characteristics that can reasonably be proscribed in the spirit of Article 10.2 of the European Convention. Trenchant and even hostile criticism of religious tenets and beliefs has to be accepted as part of the currency of a democratic society, and that is not at issue. The words used would have to be directed at the members of a religious group and not at their beliefs or customs to make them criminal, but they would have to fall short of calling for specific criminal acts against those members to be caught by a pure incitement offence. So there is only a limited area in between which seems to deserve attention. It has been identified as vilification of the foundations of a faith[89]. This is a difficult area. The dividing line between criticism, though assertive and hostile, and vilification will be varied and subjectively defined; the dividing line has not yet been pronounced on by any UK court. It is unlikely to retain permanence as society's attitudes and those of the faith communities develop and evolve.

84.  One other factor is clear from the evidence: those who wish to promote religious or racial hatred, whether or not masquerading behind some pretext, are well advised as to their criminal liabilities. Here it is probably best to concentrate on published material: the spoken insult seems to be conveyed in a context where the point at issue is probably a public order or harassment offence, and so susceptible to prosecution. Although many of the examples given to us by witnesses consisted of offensive conduct or remarks made to individual persons, it is the slogans and inflammatory publications which are at the core of the perceived problem. If such a degree of ill will really exists, even though limited in its extent, the question must be asked whether it is worthwhile for Parliament to legislate to convey a message to those who are well able to avoid the pitfalls. It would cause nothing but dissatisfaction to those who are maligned to discover that, yet again, the message has had no effect other than to indicate a new way to propagate hate speech or publications without incurring criminal liability. On the other hand it might be said that it is important for Parliament and the Government to make clear that they did not expect a large number of additional cases to be prosecuted, but they did expect that publication of some of the most inflammatory material could be deterred by extremists' fear of the risk of prosecution. It is more likely that a defence would be run under the European Convention's Article 10. Certainly this would be the case if Parliament failed to spell out the need for proportionality and its reason for restricting freedom of expression—that is, the necessity of preventing disorder or crime arising from deliberately provoked hatred of particular religious groups, and the protection of the rights of those groups. Even if that were done, it would not be an easy test for judges and juries to apply, let alone apply consistently.

85.  In summary, there are certain to be problems in bringing prosecutions, just as there are with incitement to racial hatred: success rates are impossible to forecast, and only the superior courts, on individual appeals—which will almost certainly not cover the whole range of problems—will be able to clarify demarcation lines. Whether the signal or message which is to be transmitted warrants new legislation within the boundaries of the criminal law as it has been patched and elaborated, and whether this is likely to lead to many successful prosecutions, are contentious matters which only Parliament can decide.

A prosecuting filter

86.  Under Part III of the Public Order Act 1986, supplemented by the provision for aggravated offences in the 1998 Act, prosecutions for incitement to racial hatred may only proceed if the Attorney-General gives his consent. This is part of a system whereby the CPS Code criteria for bringing a prosecution—the evidential test; and the public interest test (para. 6 of the CPS Code, comprising a range of indications which includes aggravating factors)—are subject to an overview. This would take place at several levels in the CPS, by the Director of Public Prosecutions if necessary, as head of the CPS. Sometimes, as in this case, Parliament places an extra constraint, by sanctioning a prosecution only if the Attorney-General consents. This duty is no sinecure; in the present context the issue is that any offence of incitement to religious hatred would have to receive the Attorney-General's consent under the RO Bill. Some witnesses have remarked that the number of prosecutions brought under Part III of the 1986 Act is not very high. For example, the Board of Deputies of British Jews say that they are generally satisfied with existing legislation but are increasingly concerned by "the systematic failure of the CPS to prosecute the offences of incitement to racial hatred"[90]. They quote the figures and say that much, but by no means all, inflammatory matter is produced by Islamist individuals and groups. They say that this concern is shared by the Hindu and Sikh communities. "Failure to prosecute literature inciting hatred inevitably results in violence against our community". They therefore fear that a new offence of incitement to religious hatred might be similarly limited in effect by a reluctance to prosecute. On the other hand, Muslim witnesses have stated[91] that the immediate problems to be addressed are a) the BNP and NF websites, posters, etc; b) Combat 18, who tend to target converts to Islam; and c) Kahane Chai (Jewish Defence League)—all of whom are well versed in the fact that the current race legislation does not protect Muslims. The Muslim Council of Britain says that, if the Attorney-General's role is to be preserved, he should be required to publish the criteria used in forming his decisions[92].

87.  Because of the small number of prosecutions where the offence has concerned incitement to racial hatred, the credibility of proposed new legislation extending this safeguard to religious hatred has been cast in doubt. In suggesting a similar filter for religious incitement cases, the case for so doing may be stronger: there is room for dispute as opposed to dialogue between religious communities of different faiths, as indeed between constituent parts of the same faith. The Committee would have no difficulty in allowing for a veto on prosecutions, not least private ones, based on what might be described as vexatious litigation. The Attorney-General could sift out such cases—if they had not been stopped already by the CPS—and avoid the undesirable confrontations[93]. Of course, the outcome could be that a small number of prosecutions would be brought: the facts would be straightforward and a conviction (or acquittal) uncontroversial.

88.  However, a number of witnesses made a further point, exemplified in the submission by JUSTICE[94]. They note the 'delicate balance' to be struck between incitement to hatred and protection of freedom of expression; they thus support the view that prosecutions should only go forward with the Attorney-General's authority. They recommend other safeguards, including a note of guidance for the Attorney-General and regular parliamentary scrutiny through the publication by him of an annual report, which should include a racial/religious breakdown of the figures. Other evidence seeks to ensure that the Attorney-General gives reasons when he refuses to allow a prosecution to proceed.

89.  Both the DPP and the Attorney-General were asked to comment, in their oral evidence, on these propositions. The DPP explained why, in his opinion, there has been a dearth of prosecutions under Part III of the Public Order Act 1986. Police forces have their own policies about only reacting to complaints. Other evidence confirms this. There are, for instance, practical difficulties in collecting information about religiously motivated crimes. Pressures on the police make them reluctant to record more data[95], and so far only the Metropolitan Police have been recording this information[96]. Nevertheless, much depends upon members of the public reporting incidents to the police. The Home Office evidence accepts that there has been underreporting of cases[97]. The DPP said that the other method is to go out to obtain intelligence and thus catch offenders. The concept of "hatred" is novel to criminal law and, certainly for the aggravated offences under the 1998 Act, has to be "something very extreme". Thus "any attempt to stifle what many people think of as legitimate debate" does not find its way into the criminal courts. Then there is the evidential problem of identifying the author of, at least, the written word[98]. In fact the DPP said that the vast majority of cases brought to them by the police had been put up to the Attorney-General by the CPS. He doubted whether a list of the cases which the Attorney-General had considered would give the public a very complete picture. It would place an extra burden on his staff, diverting them from other tasks[99].

90.  The DPP suggested as a more constructive approach that the Attorney-General ask the inspectorates—of the police, CPS and Courts—to look into how well the legislation has been working. The Attorney-General accepted the practical impediments to prosecution, about the person(s) responsible for producing the material and in what jurisdiction it has been produced. So he has instigated discussions between the Association of Chief Police Officers and the CPS to diagnose these problems. It is not that the cases are coming to him and he refuses consent; the cases are not reaching him because the evidence is not available[100]. The Committee also recognises that there must be cases where, as the Legal Officer with overall (and not only in incitement to hatred cases) responsibility for the public interest element in prosecutions, the Attorney-General has to withhold his consent on grounds where the public interest itself dictates a denial of the publication of reasons.

91.  In 1986, one reason for interposing the Attorney-General's fiat was to prevent vexatious prosecutions. In the religious context this would be essential in order to minimise litigation over disputes, for example, between (or within) sections of a particular religion or to protect those who, quite unknowingly, stray into remarks (perhaps when proselytising) which turn out to be religiously offensive to someone. This, however, is not all: in 1986 the Home Office minister in charge of the Public Order Bill said: "The Crown prosecutors will provide an important and formidable legal check, but, as these criminal offences give rise to major issues of principle regarding freedom of speech and the freedom of the press, the Attorney-General's fiat is appropriate. Offences involving such tricky issues should be properly and professionally assessed. The balance between freedom of expression and a criminal act is a highly sensitive issue"[101].

92.  As to his role in this respect, either under the existing racial legislation or what is proposed in connection with religious aggravation and, specifically, incitement to religious hatred, the present Attorney-General said: "the starting point is that Parliament itself has decided where the balance should be struck between freedom of expression and unlawful conduct[102] … When I exercise my power to consent, whether it is to this sort of offence or indeed in any of the other cases where I have a duty or the statutory power to consent to consider, I do so of course independently from government, that is clear … It is important as well that it is not just independent but quasi judicial, and that is what I am attempting to do … So I regard personally the requirement for my consent as an entirely appropriate safeguard against unmeritorious cases going forward, against the wrong cases going forward"[103]. If a prosecution is not permitted, the question of whether that decision is subject to judicial review arises. In his evidence, the Attorney-General referred to the Gouriet case,[104] in which the House of Lords ruled that the Attorney-General was only answerable to Parliament. But in 2001 Lord Woolf said that, notwithstanding that judgement, if the Attorney-General gave his consent in a case where it was perverse to do so this decision, today, would probably be subject to judicial review[105]. Thus it is at present difficult to know whether the Attorney-General's refusal to consent can be tested. If the filter were to be the DPP (through whom any such decision would have been considered, in the process of being passed upwards to the Attorney-General), there is no dispute that a refusal to prosecute would be subject to judicial review. It may be, therefore, that the level at which consent must be given is such that, though appropriate in 1986, it should now be reduced to the DPP. At least there would then be some certainty that the boundary of Article 10.2 could be tested in the courts.

93.  There does not appear to be any case law from the European Court in Strasbourg about a member of the Executive (however impartial) taking this sort of decision. The Attorney-General said in evidence that his duty to consider giving consent was much more empirical[106], and is also quite independent from the Government of the day: he quoted the example of the fall of a Government in the 1920s, the Campbell case, as a warning about the necessity for political impartiality. His responsibility is to Parliament[107]. It must be recognised, however, that this is part of the UK constitutional arrangements and is not proof against criticism in Strasbourg.

94.  What has never yet been considered, however, is the question whether English legislation can encapsulate the distinctions, which arise jointly under the European Convention's Articles 9 and 10, so as to be susceptible to a decision, after proper directions, by a jury. Similar considerations would almost certainly be necessary in order to implement the proposed Council Framework Decision on Xenophobia and Racism (see Hate Crime, paragraph 107); the same would hold good if something like the present proposals for incitement to religious hatred were enacted. It may be that a form of words can be distilled from the judgement in Otto-Preminger Institut (see paragraph 48 above), but we have no doubt that a test would have to be devised. The Attorney-General saw no problem: it was his stance that once Parliament has decided that incitement to hatred—a strong word—is an offence the line has then been drawn[108]. It is hardly a matter for the prevention of disorder (other offences are quite good enough to attend to that). Both proportionality and the protection of the rights and freedoms of others seem to indicate a test based on vilification of a community or its faith. The threshold would have to be quite high, so as to allow for critical—even hostile—opposition. But the ceiling would need to be low enough to ensure that those who abide by the beliefs under attack are not discouraged from exercising their freedom to hold and express them. We find this a difficult issue.

85   Volume II, page 72 (para 5) Back

86   Volume II, QQ594/5 at pages 215/216 Back

87   Volume II, Q159 at page 40 Back

88   Volume II, Q160 at page 40 Back

89   Volume II, Q338 at page 138 Back

90   Volume III, page 3 (para 5) Back

91   Volume II, QQ306 & 308, 342, 370 and 395 at pages 128, 138, 157 and 175 Back

92   Volume II, page 134 (para 3.8) Back

93   Volume II, Q651 at page 226 Back

94   Volume III, page 51 (para 3) Back

95   Volume II, Q131 at page 35 Back

96   Volume II, Q123 at page 35 Back

97   Volume II, QQ 74/75 at page 21 Back

98   Volume II, Q584 at page 214 Back

99   Volume II, Q614 at page 218 Back

100   Volume II, QQ653, 676 at pages 226 and 230 Back

101   HC Hansard Standing Committee G, 25 March 1986, col. 887 Back

102   Volume II, Q641 at page 224 Back

103   Volume II, Q650 at page 225 Back

104   Gouriet v. Union of Post Office Workers [1978] AC 435 Back

105   R v. Shayler [2001] 1 WLR 2206 at p 2216 Back

106   Volume II, Q650/651 at pages 225 & 226 Back

107   Volume II, Q683 at page 231 Back

108   Volume II, QQ661-664 at pages 227 & 228 Back

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