Serious Organised Crime and Police Bill

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Ms Blears: We have had a good debate, and a range of interesting points have been made. We have a series of complex amendments, and I will do my best to go through them in turn to explain to hon. Members why the Government seek to resist the amendments. Where the amendments are probing amendments, I will seek to persuade Members that on the basis of my reassurances, they should be willing not to press them. I am sure that I will not manage that in every case, but I will do my best.

The first set of amendments were tabled by the hon. Member for Hertsmere. He is opposed to the introduction in subsection (b) of the phrase

    ''the words, behaviour or material are (or is) likely to be heard or seen by any person''.

He seeks to remove those words from the legislation, but their insertion is not meant to lower the threshold, because in the legislation, we already have an objective test. We do not have legislation that necessarily requires intention; it requires either intention to stir up hatred, or the words, behaviour or material likely to stir up hatred. We are seeking to clarify the fact that the test is not dependent on a person seeing the material.

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An example is the best way to explain my point. Somebody may want to run a nasty poster campaign that would stir up racial or religious hatred. The Attorney-General has made the point that, currently, we would have to prove beyond doubt that other persons had seen the poster campaign. If a police officer or a decent person were to see the posters and take them down, it might be difficult to prosecute the offence. We are including the words not to lower the threshold but to say that the campaign has to be likely to be heard or seen by any person in whom it is likely to stir up racial or religious hatred. There have been circumstances in which the posters have been taken down straight away, and somebody has been able to escape prosecution by saying that we were not able to prove that they were likely to cause racial or religious hatred.

That is a narrow example, but such issues have genuinely been brought to our attention, so we want to make sure that we can prosecute, because the law was never intended to work in the way that I have just described. It used to be the case that if one produced material that would have been likely to stir up racial or, in this case, religious hatred, one should have been able to be prosecuted. It is currently difficult to do that in some cases, and the Attorney-General has asked for clarification, because of the way that the law was always intended to operate.

Mr. Clappison: What I wanted was an explanation, but my main objection was to the creation of an offence with the lack of intent. I accept what the Minister says, but is it not more likely that her new wording will have the effect that she has described? The words or behaviour will have to be seen by someone, which was not required before. Therefore, she is creating the loophole that she has just described.

Ms Blears: No. It says that it is ''likely'' that the material will be seen by any person in whom it would be ''likely'' to stir up racial or religious hatred. Therefore, it does not have to be, but to be likely that it would be.

Mr. Grieve: Taking the Minister's earlier example about a poster being put up and taken down before anybody had a chance to see it, it would be easy to argue that such a poster was not likely to be seen by any person. I confess that I find the distinction difficult, so I do not see the merit of the change. Equally, I am not sure that it cuts the other way, in terms of demerit. I am at a loss to see the advantage of the new wording.

Ms Blears: It has been suggested by the Attorney-General. His case workers have experienced difficulty in seeking to bring prosecutions in instances in which early action has been taken to get rid of racially offensive material, because it has been difficult to prove the two limbs of the offence. The main point was about intent, and I shall come to that when I deal with the recklessness provisions of the hon. Member for Oxford, West and Abingdon. I am assured that that clarification will be helpful in ensuring that the law can operate in the way in which it was intended that it
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should. On that basis, I would ask the hon. Member for Hertsmere to consider not pressing his amendments to a vote.

The next series of amendments is in two groups, The first seeks to add to the offence a recklessness limb in addition to the likelihood limb, and the second seeks to replace the likelihood limb with a recklessness test. The amendments stem from a concern shared by the hon. Member for Hertsmere that offences do not necessarily require that the perpetrator intends to stir up racial or religious hatred, and that there is the second limb—the more objective test—that hatred is likely to be stirred up. Hon. Members feel that a greater degree of intention would be appropriate in order for the offence to be fulfilled.

At present, a jury has to decide objectively whether the words are likely to stir up hatred. The effect of the hon. Gentleman's amendments would be to include a person who is aware that hatred might be stirred up by his words or behaviour but nevertheless unreasonably continues to use them. A key difference between that position and the existing law would be the need to prove the defendant's knowledge of that risk. Recklessness introduces a subjective element, rather than the objective test of the jury. It brings in a value judgment—the court has to ask whether it was reasonable to continue, bearing in mind that risk. Using recklessness in this context implies that in some circumstances it might be right knowingly to use words or behaviour that might stir up hatred. I do not believe that it is ever right to knowingly use threatening, abusive or insulting words or behaviour if they are likely to stir up hatred against a racial or religious group.

Mr. Clappison: The Minister may unwittingly have imported the word reasonably into the legislation, where it does not appear. Apart from that, the mental state that the person has to have is to be aware that his words or behaviour might be threatening, abusive or insulting; that is all that is required. He has to be aware—he does not have to go on to foresee that religious hatred is stirred up, even if it is an effect of what he has said. So far as he is concerned, the only mental state that he has to have is an awareness that his words or behaviour might be threatening, abusive or insulting.

Ms Blears: He has either to have intended it or to be aware that the words are threatening, abusive or insulting, and then he has to fulfil the second limb of the offence, which is that using those words would produce the likely effect. As I said in my opening remarks, every limb of the offence has to be proven; there has to be intention, or awareness that the words are insulting, abusive or threatening, and it has to be shown that the likely effect is that racial or religious hatred will be stirred up.

Mr. Clappison: I will be corrected if I am wrong, but I am not sure that the Minister is entirely right. The mental state that the person has to have is to be aware that his words or behaviour might be threatening or insulting, but so far as the likelihood of producing religious hatred is concerned, he does not have to
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foresee it. It might be a consequence of what he says, but his mental state at the time needs only to be that he is aware that his words might be threatening, abusive or insulting.

5.30 pm

Ms Blears: He has to be aware or to intend. Those are the separate limbs. If he does not intend, he must be aware. If he did not intend or was not aware, the defence in section 18(5) would come into play. The hon. Member for Oxford, West and Abingdon is seeking to introduce an element of recklessness, which is not appropriate because that would require the court to reach a judgment on whether the defendant was aware that his comments were insulting, abusive or threatening and chose to carry on, and on the balance of whether it was right to do that. We are saying that if he is aware that his words are insulting, threatening or abusive, he should not go on to use them if the likely effect is to stir up racial hatred. That is what is in the provision. The hon. Gentleman's attempt to raise that degree of intention is not appropriate and that is why we are resisting his amendment. If someone is aware that they are knowingly using such words and if those words are likely to stir up racial hatred, that is wrong. That is the mischief that we are seeking to attack.

Dr. Harris: What the Minister is saying is that a person does not have to be aware that their words are likely to stir up racial hatred. They have to be aware only that their words are potentially insulting. The provision could be tightened up in respect of religion to make a requirement that they should also be aware that a reasonable view would be that their words are likely to be heard by someone and to stir up racial or religious hatred. Can she explain what the problem is with taking the extra step in what she calls the objective test?

Ms Blears: First, the position in existing legislation is similar—someone must either intend or be aware that their words have those qualities. Having passed that limb, there is an objective test from the court as to whether the words were likely to have the effect of stirring up racial hatred. That provision has been in legislation for eight years and has been interpreted by the courts in that way.

One of our concerns is that the amendments would make it significantly harder to prosecute the sort of behaviour that the provisions are designed to combat because the Crown Prosecution Service would need to show that the defendant was aware of the effect that his words might have. The defendant's awareness would be substituted for the objective test that the court would use. That would raise the threshold and make it more difficult to prosecute. Hon. Members will know that there is criticism of the Crown Prosecution Service for the very low number of prosecutions under public order provisions. I genuinely believe that the amendments would frustrate prosecutions against both racial and religious hatred.
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