Select Committee on Religious Offences in England and Wales First Report

CHAPTER 8: Hate Crime

95.  It follows from Chapter 6 that incitement to commit a recognised crime is in itself an offence; but hatred as such is not a crime, whether it is racial, religious or any other form of hatred[109]. This was the genesis for Part III of the Public Order Act 1986, to which have been added provisions in the Crime and Disorder Act 1998 and the Anti-Terrorism etc Act 2001 that offences may be aggravated by either racial or religious hatred. The proposal in the Anti-Terrorism etc Bill to make incitement to religious hatred an offence was dropped. The latter proceeded from threats to the Muslim communities and their members, following the events of 11th September 2001 in New York, and other acts of terrorism elsewhere. There should be no difficulty for the police or prosecution service in pursuing a criminal charge, where an individual of any community, whether from an ethnic, religious or any other minority, is subjected to threats, abuse or worse. In an extreme case even incitement to murder, without a specific target, can be subject to prosecution, as has just been demonstrated by the conviction of Abdullah El-Faisal at the Central Criminal Court in February 2003, under s.4 of the Offences against the Person Act, 1861[110]. This provides that: "…whosoever shall solicit, encourage, persuade, or endeavour to persuade, or shall propose to any person, to murder any other person…shall be guilty of a misdemeanour, and being convicted thereof shall be liable to imprisonment for life…". The more usual case brought under this section is against those who hire contract killers, but it is not confined to this situation.

96.  Article 20.2 of the International Covenant on Civil and Political Rights (ICCPR) states that:

"Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law".

When the United Kingdom ratified the Convention in 1976 it made a reservation saying that this provision must be taken to reflect no more than the law as it then stood. At that time, the law on this subject consisted of the common law offence of incitement and the Race Relations Act 1976. This provided a civil remedy for discrimination and a criminal law element which comprised the offences of using, displaying or distributing words (or using behaviour) which is threatening, abusive or insulting and is intended to or is likely to incite racial hatred. These offences, originating in the Race Relations Act 1965, have passed, via the 1976 Act, into ss. 18 and 19 of the Public Order Act 1986 (within Part III).

97.  In 2001 the United Nations Human Rights Committee, which is charged with examining the record of States parties which have ratified the ICCPR as to their compliance with its terms, recommended that this reservation should be withdrawn. They said that they were concerned at reports that persons have been the subject of attack and harassment on the basis of their religious beliefs and that religion has been utilised to incite the commission of criminal acts. They called on the UK "to extend criminal legislation to cover offences motivated by religious hatred" and to "take other steps to ensure that all persons are protected from discrimination on account of their religious beliefs"[111]. This criticism overlooks the fact that incitement to commit a criminal act is already an offence, and it is also met by the religiously aggravated offences in the Anti-Terrorism etc Act. The only conduct not covered now is pure incitement to religious hatred, without calling for specific criminal acts.

98.  In its General Policy Recommendation No. 7 on National Legislation to combat Racism and Racial Discrimination (adopted by the Council of Europe on 13 December 2002), the European Commission against Racism and Intolerance ("ECRI") dwelt upon discrimination on, among other things, religious grounds. It makes many recommendations to the States within the Council of Europe. So far as concerns criminal law, it says the law should penalise the following acts when committed intentionally:  

(a)  public incitement to violence, hatred or discrimination;

(b)  public insults and defamation ; or

(c)  threats

against a person or a grouping of persons on the grounds of their race, colour, language, religion, nationality or ethnic origin. The criminal law is to include dissemination of this criminal material by every sort of electronic means. Much of the explanatory notes is concerned with racial and racist behaviour, but in general the contents are consistent with the draft Council Framework Decision on Racism and Xenophobia mentioned below (paragraph 107). In fact, again, almost all of the proposed offences are already contained in English criminal law, but incitement to religious hatred is not.

99.  These conclusions by the bodies charged with upholding both International and European Human Rights law can be supplemented by some more detailed arguments. The UK took a leading role in operations in Bosnia and Kosovo in order to protect people who were being persecuted solely for their religious beliefs. Those populations may provide an example of the connection, or perhaps the disconnection, between race and religion which is not always so apparent in England.

100.  It is not true that a distinction between race and religion will depend on characteristics which cannot be changed as a matter of choice: it is of course true that people cannot alter their racial origin, but there are communities in the UK where it is inconceivable that anyone could change their professed religion and continue to live within the community concerned.

101.  Parliament, supported where they can by the courts, has been sending out a message (see Chapter 9 below). It is true that only 61 prosecutions for incitement to racial hatred have been brought under Part III of the 1986 Act, of which 42 have resulted in convictions, but the question is whether the numbers are significant. Some police forces may not have pursued complaints as vigorously as they might in the past, and the CPS may have been particularly cautious about approving charges in view of the perceived encouragement given to racists by failed prosecutions. Still, it may be that the mere existence of the law has had its deterrent effect. Why, otherwise, would the BNP and other extremists have taken so much trouble and advice to ensure that their campaigns do not fall foul of the offences in Part III? Therefore, if this area of criminal law were to be extended to encompass incitement to religious, as well as racial, hatred, and not many additional prosecutions ensued the effort would not have failed: a few convictions would be good enough to convey the clear message that such behaviour is no longer acceptable in the community but has been held by a court to be criminal. A condign sentence would have been imposed.

102.  There is no need for a statutory definition of religion in this context. This is no more difficult a jury point than is "race" under existing law: the facts should give guidance enough. There may be evidential problems but they should not be insuperable, even though that is one of the CPS' main criteria before they embark upon a prosecution[112].

103.  Nor should there be any difficulty in finding an accommodation between an offence of incitement to religious hatred and freedom of expression: those who drafted the ICCPR had no compunction in placing Article 20.2 alongside Article 19 (freedom of expression). There is some jurisprudence on the juxtaposition, for example Faurisson v France (a holocaust denial case), before the UN Human Rights Committee.

104.  All this is now compounded by the internet. The High Court of Australia has allowed civil litigation to be brought for defamation in the country, or jurisdiction, where the offending material has been down-loaded. It is a matter for speculation whether other judicial systems, including the UK, will follow. It cannot be assumed that in the field of criminal law such a transition can be easily achieved. The extent of criminal jurisdiction for potential offences committed outside the UK but having an impact here is continually developing, but in the end there must be a defendant who can be charged and tried within the UK—or who can be extradited for the purpose. The Home Office position is that although the 1986 Act was not written with e-mails and the Internet in mind, "it does cover [it] quite usefully, because it refers to text and signs and images … The principle that the Government follows is that what is illegal off-line should be illegal on-line provided it falls within the United Kingdom's jurisdiction"[113].

105.  Since purveyors of religiously offensive material are very well advised, consideration should be given to the likely defence in a case concerning a website belonging to an extreme political party. On the issue of intent, the organisers would doubtless defend themselves on the basis that they did not intend—or possibly expect—people to be activated to hatred by these messages because the website was only intended to explain the stance of a political party. Even if the charge is framed on the likelihood of racial hatred being incited, a number of lines of defence can be imagined.

106.  Our terms of reference do not enjoin us to examine in any detail the civil jurisdiction, but a number of witnesses emphasised that our deliberations should not overlook the background of discrimination against members of, currently, the Muslim community. They said, indeed, that measures to prevent such discrimination and remedies where it occurs might have much more effect than the criminal law. It is only necessary to draw attention to the EU Directive on Discrimination in Employment (2000/78/EC), which includes within its scope discrimination based on religious belief or non-religious persuasion. Draft Employment Equality (Religion or Belief) Regulations are at the consultation stage, although it must be recognised that they will not cover the whole sphere of grievances.

107.  Of immediate relevance to the Committee's work is the draft Council Framework Decision on Racism and Xenophobia, currently being debated in the Justice and Home Affairs Council, which will call for criminal legislation. It has been under discussion since 1996, but the current situation (at the end of March 2003) is that the draft requires, in Article 1, that public incitement to discrimination, violence or hatred shall be punishable when directed against groups or individuals "defined by reference to race, colour, religion, descent or national or ethnic origin". A draft Preambular paragraph states that "religion broadly refers to persons defined by reference to their religious convictions or beliefs". Draft Article 8 permits Member States to exclude from criminal liability conduct which is directed against a group or individuals defined by reference to religion where this is not a pretext for incitement to racial hatred. In earlier versions of the draft, incitement to religious hatred would only have been criminalised when it was being used as a pretext for incitement to race hatred. It may be that witnesses who support a law criminalising incitement only to religious hatred are correct in seeing the present deliberations as a partial solution[114]: they hope for wider legislation on equality as well as this small extension of the criminal law.

108.  The countervailing argument against the creation of a new offence of incitement to religious hatred draws upon the current proposals to address religious intolerance and discrimination through the civil law and the requirement, which will no doubt soon be placed upon Government, to implement the Council Framework Decision. In so doing, a Decision leading to such a requirement must be presumed to have taken into account the potential conflict between a law to turn incitement to religious and other brands of hatred into criminal offences, as against the right, under the European Convention's Article 10, to freedom of expression. There is, in English law, only a small gap between incitement, in various forms, which encourage the commission of an existing criminal offence and are thus themselves an offence, and the publication of material which may be thought by some to constitute incitement to religious hatred but by others to be the sort of fair comment which the Strasbourg Court said in the Otto-Preminger Institut case (see para 48 above) must be tolerated and accepted. The police witnesses said that "The Attorney-General would need to consider what guidelines there should be around the issue of fair comment, which would be more problematic than it is under racial discrimination"[115]. One Evangelical Alliance witness agreed that there is "a world of difference" between incitement to racial and to religious hatred[116]. This issue has not been resolved: when asked about his input into a decision whether or not to prosecute, because of Article 10.2 considerations, the Attorney-General said that his decision does not pre-empt anything; the court receives the case and it is tried[117].

109.  But if the Attorney-General does not give his consent—and it must be accepted that he acts in quasi-judicial role—no court will ever consider the matter at all. A refusal to consent to a prosecution is not, in the present state of the law, subject to judicial review[118]. The Attorney-General is responsible to Parliament alone. So his refusal of a fiat for a prosecution under legislation making criminal any incitement to religious hatred could have the effect that a "fair comment" argument would never reach any court at all. This does not, of course, imply any motive other than total propriety. The Attorney-General has said that, in the event of his withholding his consent to a prosecution, he would inform the CPS of the reasons and, if asked by others, such as Members of Parliament, he would be as helpful as possible. The fact remains that there could be cases where complainants about incitement to religious hatred would never be able to have their complaint tested, as against some extremist publication, in the context of what is or is not permissible as a matter of freedom of expression. This would not arise if there were not built in a requirement for the Attorney-General's consent; but, then, there can be little dispute that consent at a suitable level in the prosecuting authorities is essential in order to exclude the vexatious cases.

110.  The crux of the matter is that it is hard to see how the extent of freedom of expression can be comprehensively justiciable, so that Article 10 rights and their restriction under Article 10.2 may be tested in the English courts, so long as the Attorney-General's consent is a prerequisite to any prosecution. Nor is it easy to see how this block might be overridden by an appeal to Strasbourg, except through the argument that domestic law fails to provide any remedy at all. This is because the Human Rights Act 1998 did not include, within UK jurisdictions, the Article 13 requirement to provide domestic remedies for breaches of the Convention.

111.  In terms of Article 10, this is not a theoretical point. There are religious cults whose doctrines seek to influence new adherents to isolate themselves from their families, or to extract from them all their possessions, or both. Such a religion is all too likely to attract trenchant and hostile criticism, and this would evidently be permissible within Article 10.1 of the European Convention. What, then, is the difference between a publication condemning such practices and the propaganda of an extremist political party directed, generally, at the tenets and adherents of one of the major religions? It is hard to see how anything beyond propaganda can be at stake: if the publication incited its readers to violence, harassment or public disorder the authors or publishers would be liable to criminal proceedings as the law now stands. Under a new law about incitement to religious hatred, it is inevitable that the defence would seek to persuade the jury that the words in the publication, poster etc. were not sufficiently serious to override the right to freedom of expression.

112.  One possible formulation, complete with safeguards, was put forward in a supplementary written submission by the British Humanist Association[119]:

"1. It is an offence for a person publicly to use words or behaviour or to display any material:-

(a)  by which he incites or intends to incite hatred against persons based on their membership (or presumed membership) of a religious group, or

(b)  in such a manner and circumstances that a reasonable person would think such hatred is likely to be stirred up.

For the purpose of section 1:-

a)  "religious group" means a group defined by reference to religion or belief or the absence of any, or any particular, religion or belief

b)  "presumed" means presumed by the offender

c)  "membership" in relation to a religious group includes association with members of that group."

113.  They comment that "in section 1, there are three factors: intention, likelihood, and achievement. Logically, each can appear alone, with either or with both the others, making seven possible combinations. Our draft covers all combinations except that where hatred results without either intention or likelihood, which would not seem culpable. This structure could, we believe, be applied to the other activities in which incitement of religious hatred could occur, e.g., publishing or distributing written material, possession of written material, broadcasting etc., as specified in the current Public Order Act and the present [Religious Offences] Bill". The British Humanist Association's wording follows s.18 of the Public Order Act except in four respects: it does not apply in any private place, whereas s.18 does but for dwellings; it introduces the concept of presumption by the offender of the target groups religious belief; it interposes a 'reasonable person' between the words themselves and the jury; it also introduces the concept of membership of the group, and it challenges the definition in s.39(5) of the Anti-Terrorism etc Act 2001, of "a group of persons defined by reference to religious belief or lack of religious belief" to include persons associated with the group. For these reasons we find difficulties with the proposed draft.

114.  Although strictly outside our terms of reference, the extension of incitement to hatred from racial to religious groups invited further consideration of other target groups, such as those covered by the Employment Directive. If discrimination is practised against any of the groups covered by that Directive, then in extreme cases the same groups may be targets for incitement to hatred, and society should logically prohibit incitement to hatred of all readily identifiable groups within the population which are manifestly suffering from discrimination. The website Media Hatewatch has recently been collecting and publishing items which might be said to amount to vilification of asylum-seekers. As stated by the DPP[120], the CPS, in conjunction with the police, is paying particular attention to hate crimes against the gay community. There is nothing to prevent the UK, or any jurisdiction within the UK, from building on the proposed Council Framework Decision to make it more comprehensive, or even to add other categories of target groups by secondary legislation.

115.   Since it appears that the device of requiring the Attorney-General's consent will have the effect that no higher court will have the opportunity of deciding whether he has, in refusing consent, drawn the dividing line correctly to reflect Article 10.2, the issue will only emerge if he does consent to prosecution. If he does not, he will not necessarily give his reasons. If such a case is allowed to proceed, it is probable that the defence will argue the point and it will be left as an issue for the jury to decide. The limits would therefore be decided on a case-by-case basis, without any reasoning being available from the lower courts, though a conviction could lead to an appeal at which Article 10 considerations would be dealt with in the judgement. In much the same way as has been discussed in connection with blasphemy, a person proposing to publish, in any medium, severe criticism of the adherents of a religion will only know, ex post facto, whether he has committed an offence. The problem, under Article 10.2 read with Article 7, about lawfulness of the restriction will be the same, but probably much more immediate. Indeed, it already arises in cases of incitement to racial hatred.

116.  To summarise, the introduction of a new offence of incitement to religious hatred could be part of a much more comprehensive approach, the opportunity for which should occur when consideration is given to implementing the proposed Council Framework Decision. There is nothing to prevent the UK from going further than the list of hate targets in that text. All pure incitement offences would deal with only a limited area of conduct, bounded by the ordinary law against incitement to commit particular offences on one side, and Article 10.2 on the other.

109   Volume II, Q76 at page 21 Back

110   "Cahal Milmo, Imam gets nine years' jail for race-hate speeches": The Independent, March 8, 2003; and "Hate preaching cleric jailed": Back

111   UN Human Rights Committee, 73rd session, CCPR/CO/73/UK;CCPR/CO/73/UKOT 6 December 2001 Back

112   Volume II, Q676 at page 230 Back

113   Volume II, Q86 at page 22 Back

114   Volume II, Q564 at page 210 Back

115   Volume II, Q160 at page 40 Back

116   Volume II, Q490 at page 196 Back

117   Volume II, Q651 at page 225 Back

118   R v Solicitor-General ex parte Taylor (1995) 8 Admin LR 206 Back

119   Volume II, page 74 (paras 18 & 19) Back

120   Volume II, Q601 at page 217 Back

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