Challenging hate speech: Incitement to hatred on grounds of sexual orientation in England, Wales and Northern Ireland

International Journal of Human Rights

Volumn 13, Issue 2-3, 2009, Pages 211-232

  Goodall, Kay ^a  

^a UNIVERSITY OF STIRLING   (United Kingdom)

Author keywords

Criminal law; Hate speech; Incitement to hatred; Sexual orientation; United Kingdom

Indexed keywords

EID: 77950781093     PISSN: 13642987     EISSN: 1744053X     Source Type: Journal    
DOI: 10.1080/13642980902758127     Document Type: Article

References (122)

1. Wolfenden Committee, Report of the Committee on Homosexual Offences and Prostitution, Cmnd. 247 (London: HMSO, 1957); among other things the report recommended decriminalisation in restricted circumstances of some sexual acts between men not below the age of 21.
2. HC Deb., col. 1454 - 5, 29 June 1960.
3. See the material provided by Ben Summerskill of Stonewall to the Public Bill Committee examining the Criminal Justice and Immigration Bill, HC Deb., col. 75, 16 October 2007.
4. New Northern Ireland Assembly member Iris Robinson, wife of the Northern Irish First Minister, http://news.bbc.co.uk/1/hi/northern_ireland/7482263.stm (accessed 23 August 2008).
5. Sexual Offences (Amendment) Act 2000 (c. 44), s. 1. Note that the age of consent in England, Wales and Scotland is 16 but it is 17 in Northern Ireland. A controversial draft Sexual Offences (Northern Ireland) Order 2007 has been proposed to reduce the age of consent in Northern Ireland to 16.
6. Sexual Offences Act 2003 (c. 42), s. 140 and Sch. 7.
7. The distinction was widely debated in the UK in academic writing: for a useful introduction, see the special issue of Law and Policy 26, no. 1 (2004).
8. See also the critical discussion by Kristen Walker on the demerits of same-sex marriage: ‘The Same-Sex Marriage Debate in Australia’, International Journal of Human Rights 11, nos 1-2 (2007): 109.
9. Civil Partnership Act 2004 (c. 33).
10. It was previously possible for a gay man or lesbian to adopt as an individual but not as part of a same-sex couple. It is a complex area of law, but see in particular the Adoption and Children Act 2002 (c. 38), and section 30 of the Adoption and Children (Scotland) Act 2007, asp 4, in relation to same-sex couples. Consultation has been taking place in Northern Ireland on the possibility of similar legislation.
11. See, in particular, Employment Equality (Sexual Orientation) Regulations 2003/1661; Equality Act 2006 (c. 3); and a forthcoming comprehensive Equality Bill tabled to be introduced to Parliament in 2009.
12. See, e.g., Hate Crime: Delivering a Quality Service (London: Association of Chief Police Officers and Home Office Police and Partnership Standards Unit, 2005), ch. 2.
13. See Criminal Justice Act 2003 (c. 44), s. 146
14. Criminal Justice (Scotland) Act 2003, asp 7, s. 74
15. Criminal Justice (No. 2) (Northern Ireland) Order 2004/1991 (NI 15), Art. 2. These provide for enhanced sentencing where it is proved that an offence was aggravated by hostility (in Scotland, ‘malice and ill-will’) related to sexual orientation.
16. Neil Bartlett, Skin Lane (London: Serpent’s Tail, 2007), 204-5, 250.
17. United Kingdom Department for Children, Schools and Families, Sex and Relationship Education Guidance, DfEE 0116/2000, 12 - 13. Note that the guidance covers England, Wales and Northern Ireland only (Scotland deals with these matters separately under the devolution settlement) and does not apply to independent schools; parents may also withdraw their children in state schools from these lessons.
18. To be precise, the English legislation creates several offences under one umbrella, as does the Northern Irish. For the sake of clarity, though, I will refer to each as if there were a single offence in each jurisdiction.
19. All references in this paper to ‘English law’ or ‘English Part 3A’ also encompass Wales.
20. See the revised section 29A in Part 3A of the Public Order Act 1986 (c. 64), as amended by the Criminal Justice and Immigration Act 2008 (c. 4), s. 74
21. Schs 16 and 28, Part 5. My thanks to Santiago Alonso for correcting my misunderstanding of these.
22. Part 3 (Articles 8 - 17) of the Public Order (Northern Ireland) Order 1987 (NI 7), as amended by Article 3 of the Criminal Justice (No. 2) (Northern Ireland) Order 2004/1991 (NI 15), which came into force on 28 September 2004.
23. See statement of Maria Eagle, Parliamentary Under-Secretary of State for Justice, to the House of Commons Public Bills Committee discussing the Criminal Justice and Immigration Bill on 29 November 2007. A LexisNexis search I carried out for this paper also did not uncover any Northern Irish case law on the subject.
24. The United Kingdom Parliamentary Joint Committee on Human Rights noted that evidence so far indicated that the kinds of incidents experienced by transgender individuals tended to be covered by the existing criminal law, and that there was currently no evidence of incitement to hatred against them as a group. It concluded, however, that ‘urgent’ research should be carried out. Fifteenth Report, March 2008, HMSO, paras 2.18-2.20.
25. Thanks to Ian McLeod for raising this point.
26. See, e.g., sections 4, 4A and 5 of the Public Order Act 1986 (c. 64), covering a range of offences involving threatening, abusive or insulting words or behaviour where these are likely or intended to cause harassment, alarm and distress. The Protection from Harassment Act 1997 (c. 40) covers an extensive range of behaviours amounting to harassment. Other offences attract enhanced sentencing under several statutory provisions (general and specific) where there is evidence of motivation or demonstrated hostility related to sexual orientation.
27. This was originally a matter for the common law of incitement to crime: now see Serious Crime Act 2007 (c. 27), Part 2, on encouraging or assisting crime, which covers England, Wales and Northern Ireland. Note that conspiring or soliciting to commit murder is covered by section 4 of the Offences Against the Person Act 1861 (c. 100).
28. These are also to be found in Part 3A, and pre-date the amendment.
29. Where they extend to Scotland - which is the case only with incitement to racial hatred – the equivalent law officer is the Advocate General.
30. Geoffrey Bindman, ‘Incitement to Racial Hatred’, New Law Journal (March 1982): 299.
31. B.A. Hepple, ‘Race Relations Act 1965’, Modern Law Review 29 (1966): 314.
32. A.T.H. Smith, Offences against Public Order (London: Sweet & Maxwell, 1987), 157.
33. Public Bill Committee examining the Criminal Justice and Immigration Bill, HC Deb, col. 75, 16 October 2007.
34. See the leading case of Brutus v. Cozens [1973] AC 854; see also Smith, Offences against Public Order, 42 - 3, 151 - 2.
35. Readers from outside the UK may be unfamiliar with the term ‘saving’. A saving is a provision ‘the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation’ : F.A.R. Bennion, Bennion on Statutory Interpretation: A Code, 5th edn (London: Butterworths, 2008), 725.
36. Fifth Report, January 2008, HMSO, para. 1.64: the Committee stated that the provisions as introduced provided in their view ‘an appropriate degree of protection for human rights’.
37. HL Debs, passim, 7 May 2008. On the amendments regarding incitement to religious hatred in the original Bill creating Part 3A, see Ivan Hare, ‘Crosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred’, Public Law (2006): 520
38. Kay Goodall, ‘Incitement to Religious Hatred: All Talk and No Substance?’, Modern Law Review 70 (2007): 90.
39. Public Order Act 1986, (c. 64), s. 29J.
40. Atkinson had also campaigned against the earlier failed proposals to introduce the offence.
41. A speculative search of LexisNexis Butterworths News on 18 July 2008, covering all UK regional and national newspapers, simply on the search terms ‘Rowan Atkinson’, ‘religious hatred’ and ‘law’, brought up 510 citations. It should be noted that some of these are duplicates, but it remains evident that the press coverage was substantial.
42. Human Rights Act 1998 (c. 42), s. 3.
43. These include Articles 2 - 12 and 14, and Articles 1 to 3 of the First Protocol and Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention: see section 1 and Schedule 1.
44. As F.A.R. Bennion notes: ‘On the presumption that Parliament does nothing in vain, the court must endeavour to give significance to every word of an enactment’: Bennion on Statutory Interpretation: A Code, 5th edn (London: Butterworths, 2008), 1157. Surplusage is therefore to be avoided.
45. Stonewall did not object to the possibility of such a saving being introduced when it was initially posited at the Public Bill Committee examining the Criminal Justice and Immigration Bill, HC Deb, col. 75, 16 October 2007.
46. Eric Heinze, ‘Cumulative Jurisprudence and Human Rights: The Example of Sexual Minorities and Hate Speech’, International Journal of Human Rights 13, nos 2-3 (2009): 193-194.
47. The doctrine of margin of appreciation as developed in the jurisprudence of the European Court of Human Rights and associated bodies is a recognition that the Convention is implemented in states parties with different economic, political and cultural histories and distinctive legal systems. In the area of freedom of expression, the Court discussed this doctrine in Handyside v. United Kingdom (1976) 1 EHRR 737.
48. Public Bill Committee examining the Criminal Justice and Immigration Bill, 18 October 2007, cols 127 and 129-30.
49. Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Explanatory Report, Council of Europe. The justificatory restriction derives from Convention jurisprudence: see Robert Wintemute, ‘Filling the Article 14 "Gap": Government Ratification and Judicial Control of Protocol No 12 ECHR’, European Human Rights Law Review (2004): 485.
50. See also Abdulaziz et al. v. United Kingdom, 28 May 1985, Series A, No. 94, (1985) 7 EHRR 471, where an applicant was permitted to rely on Protocol 4, which the UK had not ratified.
51. As regards the UK, see, e.g., the informed discussion in David I. Hosking, ‘A High Bar for EU Disability Rights’, Industrial Law Journal 36 (2007): 28.
52. Sandra Fredman, Discrimination Law (Oxford: Oxford University Press, 2002), ch. 6. Such rights focus on broadening the context of institutional responsibility, for instance imposing a positive duty on an organisation requiring it to be proactive in monitoring recruitment and progress of members of disadvantaged groups within the organisation. This can be compared with a more traditional reactive responsibility that only requires organisations to respond to individual allegations of discrimination as they occur.
53. Sir William Macpherson, The Stephen Lawrence Inquiry, Cmnd. 4262-I (London: HMSO, 1999).
54. J.H. Goldthorpe, ‘Globalisation and Social Class’, West European Politics 25, no. 3 (2002): 1.
55. Heinze, ‘Cumulative Jurisprudence and Human Rights’, 201.
56. In DPP v. Green [2004] EWHC QB 1225, the court at first instance held that the repeated use of the word ‘Paki’ accompanied by several expletives did not in this case indicate racist hostility, but rather was in the context of use as a ‘racial name’ that appeared to mean a neutral label. The decision was criticised and overturned on appeal, although the appellate court observed, citing R. v. Woods [2002] EWHC 85 (Admin), that there can be cases that have a racially neutral gravamen but nonetheless with demonstrated hostility based on the victim’s membership of a racial group. The appellate court did not offer an opinion on whether the use of the word ‘Paki’ was capable of falling under this heading.
57. Explanatory Memorandum to Criminal Justice (No. 2) (Northern Ireland) Order 2004, SI 2004
58. No. 1991 (NI 15), 2004, HMSO, paras 2 - 3.
59. Sam Dick, Homophobic Hate Crime: The Gay British Crime Survey 2008 (London: Stonewall, 2008), http://www.stonewall.org.uk/documents/homophobic_hate_crime__final_report.pdf (accessed 19 September 2008).
60. For more information, see http://www.homeoffice.gov.uk/rds/bcs-methodological.html (accessed 19 September 2008).
61. Katy Radford, Jennifer Betts and Malcolm Ostermeyer, Policing, Accountability and the Lesbian, Gay and Bisexual Community in Northern Ireland (Belfast: Institute for Conflict Research, 2006), 16, http://www.conflictresearch.org.uk/documents/LGB%20book%20complete.pdf (accessed 19 September 2008).
62. Neil Jarman and Alex Tennant, An Acceptable Prejudice? Homophobic Violence and Harassment in Northern Ireland (Belfast: Institute for Conflict Research, 2003), http://www.conflictresearch.org.uk/documents/ICR_ Homoph.pdf (accessed 19 September 2008).
63. For a summary of early research in the United States, see Karl Pillemer, ‘The Dangers of Dependency: New Findings on Domestic Violence against the Elderly’, Social Problems 33, no. 2 (1985): 146.
64. See section 146 of the Criminal Justice Act 2003 (c. 44), which provides for increase in sentences for aggravation related to disability or sexual orientation (see also section 145, which covers racial and religious aggravation).
65. Select Committee on Northern Ireland Affairs, Fifth Report, ‘Hate Crime: The Draft Criminal Justice (Northern Ireland) Order 2004’, HC 615, HMSO.
66. Select Committee on Northern Ireland Affairs, Ninth Report, ‘The Challenge of Diversity: Hate Crime in Northern Ireland’, HC 548-I, HMSO, para. 16.
67. See http://news.bbc.co.uk/1/hi/uk/7203232.stm (accessed 19 September 2008).
68. See the United States Supreme Court decision in Chaplinsky v. New Hampshire, 315 US 568 (1942)
69. Eric Heinze’s discussion of the case in ‘Viewpoint Absolutism and Hate Speech’, Modern Law Review 69 (2006): 543.
70. Clay Calvert, ‘Hate Speech and Its Harms: A Communication Theory Perspective’, Journal of Communication 47, no. 1 (1997): 4.
71. For an interesting and exceptionally informed discussion of this in the context of health, see Nancy Krieger, ‘Does Racism Harm Health?’, American Journal of Public Health 93, no. 2 (2003): 194.
72. For a more sceptical perspective, see Larry Alexander, Is There a Right of Freedom of Expression? (New York: Cambridge University Press, 2005). Alexander concludes that justified legislation in this field ‘will always be limited, local, and based on hunches about consequences’: 193.
73. Gunduz v. Turkey, 4 December 2003, Application No. 35071/97, 41 EHRR 59, para. 40.
74. Heinze, ‘Cumulative Jurisprudence and Human Rights’, 201.
75. Readers will probably be familiar with the case of Jersild v. Denmark, (A/298) (1995) 19 EHRR 1, where the broadcast of foul racist remarks about black people was held by the European Court of Human Rights to be in the light of all the circumstances justified.
76. See the 2008 example of a shadow government spokesperson using the phrase ‘nigger in the woodpile’ (it appears that this was not simply an uncharacteristic slip): http://www.timeson-line.co.uk/tol/news/politics/article4297283.ece (accessed 19 September 2008).
77. The point was repeatedly made during parliamentary debates: for a list of the many occasions on which the Bill was debated (it covered several topics other than the incitement to hatred offence), see http://services.parliament.uk/bills/2007-08/criminaljusticeandimmigration.html (accessed 19 September 2008).
78. Goodall, ‘Incitement to Religious Hatred’, 112-3.
79. Indeed, Helen Fenwick and Gavin Phillipson have argued that these restrictions are ‘a strong and welcome contrast’ to the potential breadth of the law on racial hatred: Media Freedom, Offence, Morality and Hate Speech (Oxford: Oxford University Press, 2006), 516.
80. Between 1988 and 2007, there were 84 prosecutions and 60 convictions: Parliamentary Joint Committee on Human Rights, Fifth Report (2008), HMSO, Appendix 2, para. 10.
81. Peter Thornton, Public Order Law (London: Gaunt, 1987), 61.
82. Donncha O’Carroll, Legal Study on Homophobia and Discrimination on Grounds of Sexual Orientation - Ireland, European Union Agency for Fundamental Rights 2008, para. 33, http://fra.europa.eu/fra/material/pub/comparativestudy/FRA-hdgso-NR_IE.pdf (accessed 19 September 2008). The study deals only with the period of 2000 - 05, but there is no information suggesting any prosecution before or since.
83. John O’Donoghue, Minister for Justice, Equality and Law Reform, Dáil Debates 541, 3 October 2001, 60-1.
84. Donncha O’Carroll, Legal Study on Homophobia, http://www.fra.europa.eu/fraWebsite/attachments/FRA-hdgso-NR_UK.pdf (accessed 11 March 2009)
85. Commissioned by the European Union Agency for Fundamental Rights, Vienna, and also the citation therein of Patricia M. Leopold, ‘Incitement to Hatred - The History of a Controversial Criminal Offence’, Public Law (1977): 389, 401-2.
86. Leopold argues that the absence of prosecutions in Northern Ireland during the period when its incitement to racial hatred laws required specific intent was not due to the wording of the statute but because ‘a Northern Irish jury was unable to be objective about a case of incitement’.
87. Northern Ireland Affairs Committee, Inquiry into Hate Crime in Northern Ireland (2004), 6.
88. [2002] 1 AC 462, 475. Consider also of course the extensive European Convention on Human Rights jurisprudence on interference with rights in accordance with law.
89. S.H. Bailey, D. Harris, and D.C. Ormerod, Bailey, Harris & Jones Civil Liberties: Cases and Materials, 5th edn (London: Butterworths, 2001), 1156.
90. Anthony Lester and Geoffrey Bindman, Race and Law (London: Penguin, 1972), 371.
91. Philip N.S. Rumney, ‘The British Experience of Racist Hate Speech Regulation: A Lesson for First Amendment Absolutists?’, Common Law World Review 32, no. 2 (2003): 117.
92. Geoffrey Bindman, ‘Inciting Hatred’, New Law Journal 157 (2007): 1086.
93. Kerry Moore, Paul Mason and Justin Lewis, Images of Islam in the UK: The Representation of British Muslims in the National Print News Media, 2000-2008, (Cardiff: Cardiff School of Journalism, Media and Cultural Studies, 2008), http://www.cardiff.ac.uk/jomec/resources/08channel4-dispatches.pdf (accessed 19 September 2008).
94. Peter Oborne, The Independent, 7 July 2008, http://www.independent.co.uk/news/media/the-shameful-islamophobia-at-the-heart-of-britains-press-861096.html (accessed 19 September 2008).
95. United Nations Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination, CERD/C/63/CO/ 11, 10 December 2003.
96. Parliamentary Joint Committee on Human Rights, Tenth Report, March 2007, para. 366.
97. Chris Frost, ‘The Press Complaints Commission: A Study of Ten Years of Adjudications on Press Complaints’, Journalism Studies 5, no. 1 (2004): 101, 111-2.
98. R. v. El-Faisal, [2004] All ER (D) 107, and R. v. Hamza, 7 February 2006 (unreported)
99. Simon Freeman, The Times, 7 February 2006. As the defendants also exhorted followers to kill or inflict violence on Jews and others, both were convicted of incitement to murder as well.
100. R. v. Griffin and Collett, 2 February 2006 (unreported)
101. The Guardian, 2 February 2006. The defendants were acquitted. Video extracts from BBC recordings of the speeches, in which Griffin said among other things ‘any woman that they can take by force or guile is theirs’, http://news.bbc.co.uk/1/hi/england/bradford/6135060.stm (accessed 19 September 2008).
102. P.F. v. Wilson (Sheriff Court), 24 October 2002 (unreported) (my thanks to the Crown Office for providing a copy of the Sheriff’s decision).
103. R. v. Saleem, R. v. Muhid, R. v. Javed, 2007 WL 3130840, [2007] EWCA Crim 2692, [2007] All ER (D) 462.
104. Nick Davies, Flat Earth News (London: Chatto & Windus, 2008), 374.
105. Frost, ‘The Press Complaints Commission’.
106. See, e.g., Kuhnen v. Federal Republic of Germany, 12 May 1988, Application No. 12194/86, (1988)56 DR 205, where the European Commission of Human Rights stated that freedom of expression embodied in Article 10 could not be relied upon in order to carry out activities that were aimed at the destruction of other Convention rights as prevented by Article 17.
107. [2004] EWHC 69 (Admin), [2004] All ER (D) 50.
108. See http://www.christian.org.uk/rel_liberties/cases/harry_hammond.htm (accessed 17 September 2008).
109. R. v. Saleem, R. v. Muhid, R. v. Javed, 2007 WL 3130840, [2007] EWCA Crim 2692, [2007] All ER (D) 462.
110. In 2005, Danish newspaper Jyllands-Posten published several cartoons depicting the prophet Mohammed. Such depictions offended Muslims greatly, and the paper justified their publication as a contribution to debate about censorship. Reaction to the cartoons (which was intensified by the malicious circulation of more extreme cartoons, in the pretence that they had been published by the same paper) led to Muslim protests worldwide, resulting in arsons and deaths.
111. R. v. Saleem, paras 45 - 7.
112. Larry Grant, ‘Incitement to Disaffection’, Index on Censorship 3, no. 3 (1974): 3.
113. There are many good works on the broader topic of suppression of freedoms of expression and of association in this context, such as the decades of writings by Keith Ewing, Conor Gearty, Clive Walker and many others, but a short and startling piece from that time is David R. Lowry and Robert J. Spjut, ‘The European Convention and Human Rights in Northern Ireland’, Case Western Reserve Journal of International Law 10 (1978): 297.
114. H.L. Deb., 7 May 2008, col. 598.
115. Graham Grant, ‘Muslims’ Anger over SNP’s Pro-Gay Stance’, 21 January 2008.
116. There is a huge literature on this in social psychology in particular; for classic texts, see the work of T.A. van Dijk, and also M. Wetherell and J. Potter, Mapping the Language of Racism (London: Harvester Wheatsheaf, 1992).
117. Rumney, ‘The British Experience’.
118. Maleiha Malik, ‘Speech Control’, Index on Censorship 36, no. 4 (2007): 21.
119. Maleiha Malik, ‘Engaging with Extremists’, International Relations 22 (2008): 85.
120. On anti-immigrant government discourse, see, e.g., Bill Dixon and David Gadd, ‘Getting the Message? "New" Labour and the Criminalization of "Hate"’, Criminology and Criminal Justice 6 (2006): 309, 312-4
121. John Solomos, Race and Racism in Britain, 3rd edn (London: Palgrave Macmillan, 2003), chs 3 and 4.
122. Serious Organised Crime and Police Bill, Liberty’s briefing for second reading in the House of Lords, March 2005, para. 32.