New offence? New law

The Racial and Religious Hatred Bill would introduce the new crime of incitement to religious hatred. Lord Mackay of Clashfern, writing as Patron of the Lawyers' Christian Fellowship, has grave misgivings

 

On 11 October, coinciding with its second reading, there was a demonstration against the government’s Religious Hatred Bill. One of the important groups involved has been and is the Lawyers’ Christian Fellowship <www.lawcf.org>. Lord Mackay has given voice to their concerns.

he great strength of our democracy has been the toleration of views, particularly religious or anti-religious views, that many find offensive. As Lord Justice Sedley has said, defending the right of three women to preach about God, morality and the Bible on the steps of Wakefield Cathedral, ‘Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.’

The Racial and Religious Hatred Bill is a provision to introduce into our law the crime of incitement to religious hatred. The proposal defines ‘religious hatred’ to mean hatred against a group of persons defined by reference to religious belief or lack of religious belief.

A person who uses threatening, abusive or insulting words or behaviour or displays any written material which is threatening, abusive or insulting is guilty of an offence if: (a) he intends thereby to stir up religious hatred, or (b) having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up religious hatred.

The Attorney General’s consent is necessary for a prosecution, but of course whether or not the conduct in question is in breach of the criminal law is not determined by the Attorney General. And before his consent is in issue, investigation of the circumstances by the police may well be required if a complaint is made. In my view this is an extremely wide and imprecise definition of a crime.

Baroness Cox recently asked the Government for examples of behaviour which have come to the attention of the Crown Prosecution Service over the past four years and which could have been prosecuted under the new offence. Baroness Scotland replied that individual cases had not been reviewed and it was not possible to say whether there could have been such prosecutions.

On 4 March 2004 the Prime Minister made the following comment, speaking in his constituency, ‘What galvanised me was that it was a declaration of war by religious fanatics who are prepared to wage that war without limit. They killed 3,000. But if they could have killed 30,000 or 300,000 they would have rejoiced in it.’ I cannot think of anything more likely to stir up hatred against a group or more insulting to a group than that they would have rejoiced in killing such large numbers of people. It is obvious that the Prime Minister was attributing this conduct to the religion of the killers. I ask, would the statement of the Prime Minister be a breach of this law had it been in force in 2004?

Another example occurs to me from the Book of Acts chapter 23 in which, when Paul was before the Jewish Council, he was aware that the Council included Pharisees and Sadducees. The Sadducees did not believe in the resurrection, whereas Paul as a Pharisee was one who did. He cried out in the Council: ‘I am a Pharisee, the son of a Pharisee: of the hope and resurrection of the dead I am called in question.’ So fierce was the ensuing dissension that the Roman captain sent soldiers to extract Paul from the Council, fearing that he would have been pulled in pieces by them. This seems to have been an example of a declaration of one’s own religious belief that could stir up hatred against him.

There are of course existing laws under which matters of religious belief may give rise to prosecution. One of the examples which the last Home Secretary, David Blunkett, gave that he thought was not covered by the existing law was a statement which said: ‘Muslims are a threat to British people and liable to molest women and that they should be urgently driven out of Britain.’

However, this type of statement appears to be covered by the existing law as illustrated by the case of Norwood, the regional organiser of the British National Party, who displayed a poster in the first floor window of his flat in Shropshire, containing words in very large print ‘Islam Out of Britain’ and ‘Protect the British People.’ It bore a reproduction of a photograph of one of the twin towers of the World Trade Centre in flames on 11 September 2001 and a Crescent and Star surrounded by a prohibition sign together with the initials of the BNP.

A member of the public was offended by the poster and reported the matter to the police, who removed the poster and charged Norwood with the offence of causing religiously or racially aggravated harassment, alarm or distress under Section 31 of the Crime & Disorder Act 1998. He was convicted in the Magistrates Court and the conviction was upheld in the High Court who found that the sign was insulting to Muslims.

A further example of how the present law deals with matters of religious belief is exemplified by the case of Harry Hammond v DPP. The High Court declined to overturn the conviction of Mr Hammond by the Magistrates. He had been a preacher for a considerable time and on the occasion in question had displayed a placard saying ‘Stop Immorality. Stop Homosexuality. Stop Lesbianism.’

These two cases illustrate to my mind the extent to which the present criminal law deals with the subject matter of the new provision. For my part I find it very difficult to see why a further provision is necessary.

In my view the vagueness of the present wording is likely to generate complaints on a wide variety of grounds from people of opposing faiths or of those who do not have any faith. If, as I suspect, very often the complaint will be investigated (because it appears to the Police to come within the law) but (on the matter being considered by the Attorney General) no prosecution proceeds, the likely result is that dissatisfaction will be generated in the complainers with a consequent increase in disharmony and confusion.

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