Memorandum submitted by the Lawyers' Christian Fellowship (CJ&I 302)
Re: Incitement to hatred on the grounds of sexuality
We are writing in response to the proposed amendment to the Criminal Justice and Immigration Bill which would make it a criminal offence to incite hatred on the grounds of sexual orientation. It was noted in Parliament that such an amendment does raise freedom of speech issues, and as such it obviously raises concerns for Christian, as well as those of other faiths and none. We note, however, that to date no religious groups have been invited to give evidence before the committee to represent those concerns. In light of this we hope that our written representations will be given full and proper consideration by the committee.
We urge the committee to reconsider the proposal to introduce such an amendment to the Bill on the grounds, firstly, that the introduction of this law is unnecessary and, secondly, that the introduction of this law is undesirable.
The proposed amendment is unnecessary
It is our view that the criminal law already provides adequate protection for people of all sexual orientations. Some of the more pertinent provisions are set out below:
• The Public Order Act 1986 section 5 provides that a person is guilty of an offence if he (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby;
• Section 5 of the Public Order Act 1986 was found to be violated in the case of Harry Hammond. Harry Hammond was a 69 year old pensioner with aspergers syndrome who was engaged in street preaching in Bournemouth city centre. He was holding a sign which contained the words "Stop homosexuality", "Stop lesbianism" and "Stop immorality". Mr Hammond was surrounded by members of the public, some of whom attacked him and knocked him to the ground. None of his attackers were arrested or cautioned, yet Mr Hammond was arrested and eventually found guilty of a section 5 public order offence. His conviction was upheld in the High Court where the Court held that the Magistrates had been entitled to find that relating homosexuality to immorality was insulting. Although we do not agree with the outcome of this case, it illustrates the extent to which those of homosexual orientation are already protected from acts which they may find threatening, abusive or insulting;
• The Protection from Harassment Act 1997 makes it a criminal or civil offence to harass someone;
• It is obviously a criminal offence to assault someone, irrespective of their sexual orientation. The most minor form of assault is common assault, under section 39 of the Criminal Justice Act 1988. This encompasses not only an actual battery, but also when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force (i.e. the actual use of force is not required);
• In addition to these direct offences, the common law also makes it an offence to incite a criminal offence. An inciter is one who intentionally reaches out and seeks to influence the mind of another by counselling, procuring or commanding the other to commit a crime. It has also been held to include encouraging and persuading another to commit an offence. It is irrelevant whether the other person is so influenced or not. It includes implied as well as express incitement, and can be addressed to persons generally or to specific individuals. If a person engages in such behaviour then they can be prosecuted;
• One of the reasons put forward for introducing this amendment is to deal with violently homophobic song lyrics. However, if song lyrics are so explicitly violent as to be advocating or encouraging others to be violent towards people on the grounds of their sexual orientation these should be prosecuted under current criminal incitement laws. It would not be necessary to show that anybody was actually persuaded by or acted on those lyrics;
• In addition to these possible offences, the Criminal Justice Act 2003 section 146 also included provisions to better deter homophobic crime by providing tougher sentences for offences motivated by hostility based on the sexual orientation of the victim. Unfortunately it is true that in our society some people resort to violent crime against other members of society. Regrettably, some of these people are violent towards homosexuals because of their dislike of homosexual people or practices. Such actions are and should be condemned by the law and punishable by the courts. However, it does not follow that a law criminalising 'incitement to hatred on the grounds of sexual orientation' is necessary. Incitement to hatred is of a different quality to the type of incitement outlined above. Whereas the above is incitement to commit a criminal offence, the proposed offence would be incitement to do (or more accurately, think or feel) something which in itself is not criminal, i.e. to hate somebody on the basis of their sexuality. Rather than tackling behaviour which has a negative impact on other individuals and society in general, this amendment would use the criminal law to outlaw the expression of certain thoughts, beliefs, opinions and ideologies. It is for this reason that there is a concern that we are taking steps towards creating 'thought crimes'.
One of the arguments put forward in favour of introducing this amendment has been the current levels of homophobic crime. For example, the Metropolitan Police performance briefing showed 1,184 incidents in 2006/07. However, there are a number of things to note about these figures. Firstly, there is no longer a distinction made in the figures between reported 'crimes' and reported 'incidents' (i.e. acts that did not amount to a criminal offence).[1] In addition, the Criminal Prosecution Service (CPS) definition of a homophobic incident is: Any incident which is perceived to be homophobic by the victim or by any other person. It may be that local police forces have a slightly different definition, but most will be based on the above, or a variation of it.[2]
The effect that this has on the overall figures can be illustrated by comparing it with the CPS figures for crimes involving a homophobic element nationwide:
"Between April 2006 and March 2007, the CPS prosecuted 822 cases identified as having a homophobic element. Of these, 478 resulted in a guilty plea and a further 124 resulted in conviction after trial."[3]
These figures indicate a much lower incidence of homophobic crime in England and Wales. Even if one takes into account that some crimes will not be detected, or that there may not be enough evidence to convict a perpetrator, the figures are so low as to indicate that the number of non-criminal 'incidents' being reported to police is much greater than the number of actual criminal acts.
The proposed amendment is undesirable
Our submission has already alluded to the fact that the proposed amendment targets speech and expression. It is a well established principle of international human rights law that the Government must have justification before they can legitimately curb freedom of speech. Such justifications do exist, such as the prohibition on threatening speech and the law regarding libel. However, freedom of speech and freedom of expression continue to be of extreme importance in a democratic society, and that must include the freedom of all people to say or write things that others may disagree with, or may find insulting, alarming, or even disturbing. If freedom of speech is restricted to speech which the majority of people agree with, or that which the Government have deemed to be an acceptable point of view, it ceases to have any meaningful effect.
There is a very real danger that if a new law of incitement to hatred on the grounds of sexuality is included in the Criminal Justice and Immigration Bill its effect will be to unjustifiably curb freedom of speech. Our concerns are based both on the possible wording of any amendment, and also on our experience of how the freedom to speak openly about homosexuality is already curbed by pressure from homosexual rights lobbyists and unjustified action by the police. Unfortunately there is already an atmosphere of self-censorship and fear when it comes to speaking openly about different views on sexual orientation because people are afraid of being branded 'homophobic'. This is apparent from the recent incident in Wakefield Council where professional social workers did not investigate sexual abuse by a homosexual foster couple as early as they should have, partly due to fear of being labeled homophobic.[4] When other incidents are taken into account it is easy to see why they harboured such a fear. Below are a few examples of the ways in which the expression of views on homosexuality which do not conform to the Government line are not tolerated:
· The Bishop of Hereford was taken to an employment tribunal for refusing to employ a youth worker who had recently been in a homosexual relationship;[5] · Joe and Helen Roberts are an elderly couple who were interrogated by police for 80 minutes and told they were close to committing a hate crime after phoning their local council offices and enquiring whether they would post some Christian literature to balance the literature available promoting homosexuality;[6] · Andrew McClintock was a magistrate sitting on the family panel. He believed it could never be in the child's best interests to be placed for adoption with a homosexual couple and simply wished to recuse himself from such cases. He was told this was not an option, and therefore felt forced to resign rather than have to act against his conscience;[7] · Family values campaigner Lynette Burrows was questioned by police after she said she did not believe that adoption by a homosexual couple was the best approach when raising a child;[8] · International evangelist Nicky Cruz was initially banned from speaking to hundreds of youths by Hackney Council following concerns that he held homophobic views based on biblical condemnation of homosexual practices;[9] · Stephen Green was arrested at Cardiff's Mardi Gras for handing out leaflets of an allegedly homophobic nature. The leaflet quoted the Bible at length to support his belief that, whilst same sex love is not a sin, sexual activity between members of the same sex is. The leaflet then asserts that sinners can be saved through the death and resurrection of Jesus if they offer a full repentance. The case was eventually dropped by Cardiff Magistrate's Court, as there was no evidence to present against the defendant;[10] · A bed and breakfast owner in the Lake District who wants to remain anonymous because she is scared about potential repercussions (LCF has full details) refused a double room to a lesbian couple, but offered them two singles instead. She received a letter from the couple threatening legal action , and a letter from the Keswick tourist board; · A husband and wife foster team who want to remain anonymous in order to protect their family (LCF has full details) have been threatened with removal from the local authority foster care list because they felt they could not agree to a new Equality Policy that recognised same sex lifestyle as equivalent to a married lifestyle; · A social worker who wants to remain anonymous because she is emotionally exhausted with the process (LCF has full details) has been told she can no longer work on the adoption team because she feels unable to place children with same sex couples. She has also been forbidden from working on other children's teams; · Ten firemen from the Cowcaddens fire station were reported and investigated for disobeying orders to man a stall in uniform at the Pride Scotia parade. Some refused on grounds of conscience, while others were 'embarrassed' to attend the event in uniform;[11] · Catholic Caring Service, a Catholic adoption agency, feel forced to close so they do not have to act against their conscience by placing children with same sex couples for adoption;[12] · In 2003 a local newspaper quoted the Bishop of Chester as saying, "Some people who are primarily homosexual can reorientate themselves. I would encourage them to consider that as an option, but I would not set myself up as a medical specialist on the subject - that's in the area of psychiatric health." A complaint was made to the police that the remarks could be considered a 'hate crime' Cheshire Police announced they were investigating the matter. Interestingly, in explaining why the police decided not to go ahead with a prosecution they stated, "The Crown Prosecution Service has been consulted with at length, and Cheshire Police are satisfied that no criminal offences have been committed, as current public order legislation does not provide specific offences based on sexuality." (Emphasis added.)[13] · In 2006 a member of the Scottish Parliament asked Strathclyde police to investigate the Roman Catholic Archbishop of Glasgow for his comments, during a church service, that the legalisation of civil partnerships had undermined the institution of marriage;[14] · Norah Ellis and Dawn Jackson, social workers specialising in adoption and fostering were threatened with dismissal because they refused to take part in placing children for adoption with homosexual couples. They had almost fifty years of social work experience between them, and both were highly regarded by colleagues;[15] · Dr Joy Holloway, an experienced paediatrician, published an academic paper showing evidence that homosexual adoption was detrimental to the wellbeing of children. Following the article's publication she "suffered great harassment from her employers and was moved from her job."[16] · The Christian Union of the University of Cambridge was reported to the police following its distribution of St John's gospel to students and hosting an evangelistic meeting where the Dean of Sydney Cathedral put forward a traditional biblical view on homosexuality;[17] · Jesmond Parish church in Newcastle upon Tyne was vandalised and extensively daubed with obscene graffiti because its vicar upheld traditional Christian beliefs on homosexuality. The attack followed a local meeting organised by Britain's leading homosexual rights lobby group, Stonewall, at which a member of the audience advocated action against Jesmond Parish Church in Newcastle;[18] · Western Isles Council in Scotland received hate mail and death threats because its registrars refused, on moral grounds, to conduct civil partnership ceremonies. The Council says it will fulfil its legal obligations to register partnerships, but will not be offering additional wedding-like ceremonies;[19] · Edinburgh Christian Union (CU) were banned from running the Pure Course (a course promoting abstinence from sex except within marriage) after complaints from the Gay and Lesbian Society. The University said that the Course breached the University's Equality and Diversity Policy;[20] · Gosia Shannon, the organiser of a Family Centre for Eastern European migrants who have settled in London, was told by Haringey Council that unless the Centre agreed to renounce all expression of Christianity they would lose vital public funding. The council were concerned about her 'attitude to gay parents';[21] · The Gay Police Association (GPA) challenged the Christian Police Association (CPA) saying their statement of belief is discriminatory. An initial letter from Human Resources sided with the GPA, who state that Christian police officers are free to believe but there should be limits on their manifestation of belief because their views will make them prejudiced in the way they carry out their official duties;[22] · The head of the Muslim Council of Britain, Sir Iqbal Sacranie, was investigated by police for saying that homosexuality was "harmful";[23] · Four firemen were demoted and fined for shining a torch on four men engaged in having sex in public parkland. The men were then transferred and ordered to attend an equality course. No action was taken against the men involved in the illegal sex act.[24] Our view of the above is that normal law abiding citizens are being criminalised, investigated, harassed, intimidated and forced out of their jobs simply because they dared to either speak out or did not compromise their sincerely held beliefs about different sexual practices.
Ben Summerskill of Stonewall has been quoted as saying that the proposed amendment will not affect those who speak 'temperately' and 'politely' against homosexuality. However, this is not the case. Firstly, this law will not (and should not) outlaw 'intemperate' and 'impolite' speech - that quite simply will not be the legal test. But more importantly, that is not how those advocating such a law expect and hope the law to be applied.
In February Mr Summerskill wrote about a rally that was organised by ourselves and others to protest against the passing of the sexual orientation regulations. In a Stonewall Ebulletin he wrote "...the hatefulness of some of the current campaigners against equality is what will really stick in my mind. We were shocked that the Metropolitan Police gave some fringe protestors permission to demonstrate outside Parliament last month carrying posters inciting hatred against gay people." Presumably, then it is this kind of behaviour that he is expecting to be covered by any new law.
However, the behaviour of those on the rally that night was also described by PinkNews.co.uk, Europe's largest gay news service and voted Publication of the Year 2006/7 by Stonewall. The journalist described the scene in the following way:
"...People were singing and brandishing placards reading "Cry Freedom", "Christians Awake" or "Back the Bible" and applauding speakers... Some Christians managed to tear themselves from the chanting crowd to come and chat with those of us who were standing silently on the side. Lively but mostly good mannered debate ensued."[25]
There is no mention of the "hate filled faces of campaigners" or the "posters inciting hatred against gay people" that Mr Summerskill refers to.
In fact, at the end of his article the PinkNews reporter commented that "As I was getting ready to leave myself, someone I know told me that upon arrival he had heard a woman on the other side of the road saying to her companion that she was a member of the House and that must be the counter demonstration - presumably after her seeing the signs saying "Freedom" in the crowd. Quite ironic really." The fact that one person can see a rally as inciting hatred against homosexuals, whilst another can mistake it for a homosexual rights rally highlights, perhaps, just how subjective the proposed law would be when it comes to the reporting, investigation and prosecution of alleged crimes.
As Christians we have no interest in 'inciting hatred' against people on the basis of their sexuality. In fact, we believe we are commanded by God, through His bible, to love all people. We also believe that the bible teaches that sexual union is a blessing when enjoyed within marriage between one man and one woman. Anything outside that mandate is therefore disobedience to God, and not in the best interests of the individuals involved or society as a whole. The introduction of the proposed law threatens to criminalise us for speaking about these beliefs, or for expressing further the implications of those beliefs. It is our belief that though we are commanded to hate the sin but to love the sinner, that distinction will not always be recognised by the courts or the police, and our freedom of speech and freedom of religion will suffer as a consequence.
For these reasons, and for those mentioned above, we would ask the committee to propose that the plans to introduce a new law criminalising incitement to hatred on the grounds of sexual orientation should be abandoned.
October 2007 [1] See http://cms.met.police.uk/met/content/download/12762/59054/file/Briefing.pdf [2] See http://www.cps.gov.uk/publications/prosecution/hmpbcpol.html#Terminology [3] See http://www.cps.gov.uk/news/pressreleases/166_07.html [4]http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=480151&in_page_id=1766&ito=1490 [5]http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/07/19/nbishop119.xml [6]http://news.bbc.co.uk/1/hi/england/lancashire/6205223.stm [7] http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/11/26/ncare26.xml [8] http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/12/10/ngay10.xml [9] http://www.christiantoday.com/article/evangelist.nicky.cruz.i.just.want.to.help.thats.all/7090.htm [10] http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=403815&in_page_id=1770 [11] http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/09/01/npride01.xml [12] http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=471127&in_page_id=1770 [13] http://www.publications.parliament.uk/pa/ld200405/ldhansrd/pdvn/lds06/text/60620-07.htm and http://news.bbc.co.uk/1/hi/england/merseyside/3257623.stm [14] http://findarticles.com/p/articles/mi_qn4156/is_20060115/ai_n15999576 [15] http://www.publications.parliament.uk/pa/ld200203/ldhansrd/vo030623/text/30623-41.htm [16] ibid [17] http://www.christianpublications.co.uk/rel_liberties/cases/jensen.htm [18] http://www.christianpublications.co.uk/rel_liberties/cases/jpc.htm [19] http://news.scotsman.com/topics.cfm?tid=729&id=2439732005 [20] http://news.scotsman.com/education.cfm?id=1830982006 [21] http://www.timesonline.co.uk/tol/news/uk/article657460.ece [22] http://news.bbc.co.uk/1/hi/england/5200962.stm [23] http://news.bbc.co.uk/1/hi/uk/4603474.stm [24] http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=485404&in_page_id=1770 |