Supplementary submission from the British
Humanist Association
OBJECTIONS TO
THE PRESENT
DRAFT
1. In our original submission to the Committee
(June 2002) we supported in principle a law against incitement
to religious hatred. We said:
We accept that in an open and inclusive society
the government has a duty to protect groups and individuals that
are subject to hatred and violent attack. Incitement to violence
is of course already illegal, but hatred stopping just short of
violence is inimical to the values of a civilised society and
the principles of reciprocal tolerance and cooperation, can be
devastating to the lives of individuals and communities. (paragraph
4.2)
We insisted, however, that the safeguards for
legitimate freedom of speech needed to be adequate:
The BHA would oppose any legal constraints on
vigorous debate, including satire, mockery and derision, about
beliefs and doctrines, religious or otherwise. We see a clear
distinction between this and incitement to religious hatred, ie,
hatred of individual persons on grounds of their religious or
other beliefs. The distinction between beliefs and persons is
fundamental. (paragraph 4.1)
2. When we gave oral evidence to your Committee
on 18 July, we said that on further examination we had realised
that the clauses as drafted originally by the Government and now
included in Lord Avebury's Religious Offences Bill presented substantial
risks to freedom of speech which were compounded by the draft
guidance produced by the Attorney-General. These points are presented
again in Annex 1.
3. The proposed law is of course exactly
in line with the existing law on incitement to racial hatred in
Part III of the Public Order Act 1986. This approach has undoubted
advantages because
(a) it builds on the existing jurisprudence
under the law about racial hatred;
(b) similarly, it builds on the popular understanding
of the existing law;
(c) it resolves the problem that Jews and
Sikhs are already anomalously covered by the racial hatred law
on the somewhat dubious basis of their being ethnic groups—something
which is plainly a matter of understandable resentment by Muslims;
and
(d) the motives and acts of inciting racial
and religious hatred will often overlap, and the use of the same
law for both will prevent cases falling into a gap between two
differently worded enactments.
Moreover, that the Law Commission in their final
report on blasphemy[2]
envisaged that an extension of the law on racial hated would be
the best method to deal with any recrudescence of acts fomenting
religious hatred.
4. However, while it would be much tidier
and more convenient simply to insert "or religious"
into the various offences of inciting racial hatred, it is not
a matter of necessity to apply the same legal regime to incitement
of religious as to racial hatred, and tidiness should not be the
first objective if its price is, as we suggest, too great.
5. The problem lies in the essential differences
between race and religion which affect the degree to which freedom
of expression can legitimately and proportionately be restricted.
Restrictions are far more easily defended in the case of race
(and to a large extent of gender, sexual orientation and other
common grounds of unwarranted discrimination and prejudice), since
race is in a sense without content: it has no ideology, teachings
or dogma; organisations are rarely based on racial or ethnic groups
and when they are they exercise little power in the world. What
is at issue when people are characterised by or criticised for
their race is their irrevocable identity as individuals or groups
of persons.
6. The differences from religion are many
and profound:
— Religions, unlike race, can be chosen
or put aside.
— Religions make extensive and often
mutually incompatible claims about the nature of life and the
world—claims that can legitimately be appraised and argued
over. There is no parallel for race.
— Religions, unlike race, set out to
and usually do influence their followers' attitudes and behaviour,
often in ways which can be similarly controversial.
— Religions are in principle and often
in practice in competition with each other: evangelists come to
our front doors, set up television and radio stations and run
crusades to make converts. This is plainly untrue of race.
— Religions are expressed through organisations
that are often wealthy and powerful. They exercise that power
in the name of their faith far outside the realm of religion—in
influencing social attitudes and national and international policies
(eg on contraception). This controversial influence has no parallel
in race.
— Religious believers often feel under
a duty to react strongly to any criticism or insult offered to
their deities, prophets or beliefs, however mild or reasonable.
This has little parallel in the case of race.
7. A straight addition of "or religious"
after "racial" in the 1986 Act may be tempting and tidy
but it clearly carries serious threats to freedom of speech about
the controversial claims and influence of religion and religious
believers and institutions.
8. The problem lies not in the need to combat
incitement to religious hatred but in the proposal to apply the
same formulation as in the existing law on incitement to racial
hatred. This is based on the use of "threatening or abusive
or insulting words or behaviour", and whereas with race this
offers few hostages to fortune and has in practice worked adequately
well, the same would be quite untrue if the formula were applied
to religion in all its numerous manifestations from traditional
faiths to fringe cults.
9. One criticism of the formula "threatening,
abusive or insulting" was provided by the Law Commission
in their final report on blasphemy, insofar as they rejected a
blasphemy law based on what was "scurrilous" or "abusive"
or "insulting" of Christianity on the grounds that it
could:
only be judged ex post facto. . . Delimitation
of a criminal offence by reference to jury application of one
or more of several adjectives (all of which necessitate subjective
interpretation and none of which is absolute) is hardly satisfactory.
[3]
10. More importantly, however, and as suggested
above, the formulation "threatening or abusive or insulting
words" (we leave aside behaviour) can cover a huge range
of speech that should never come near a prima facie case
of breach of the law. Indeed, the Law Commission endorsed the
use of abuse and insults:
Ridicule has for long been an acceptable means
of focusing attention upon a particular aspect of religious practice
or dogma which its opponents regards as offending against the
wider interests of society, and in that context the use of abuse
or insults may well be regarded as a legitimate means of expressing
a point of view upon the matter at issue. [4]
Even if the law technically excludes such speech
or offers defences in cases brought against it, it will still
have a chilling effect on free speech owing to popular apprehensions
or misunderstandings about the scope of the law.
11. We wish therefore to propose a fresh
approach.
AN ALTERNATIVE
APPROACH
12. With any legislation of this nature,
it is necessary to ask what mischief it is intended to correct,
to focus as narrowly as possible on that mischief and to be wary
of unintended consequences such as frequently arise from inadequately
considered clauses. The evidence given to your Committee has shown
that:
— there is undoubtedly a mischief in
need of correction, in the form of anti-Muslim propaganda emanating
from a racist minority largely but not totally confined to white
extremists;
— such hate campaigns are widely interpreted
as racism displaced as a result of the success of laws about racial
hatred and appear to be carefully directed so as to avoid infraction
of these and other public order laws;
— by comparison with Islam, other religions
appear to suffer little or no such abuse, while such as occurs
is usually susceptible to action under existing laws;
— there is in fact little specifically
religious hatred to be found in this country at present (by contrast,
say, with Tudor times);
— the complaints of most religious
groups are not of incitement to hate their followers but of lack
of respect, disdain or "vilification".
13. The narrow (though intense) nature of
the actual mischief re-emphasises the need for care that any law
against incitement to hatred of persons on the basis of their
religion or belief does not create greater mischief than it corrects.
Any such law needs to satisfy the following conditions:
— it must offer a remedy for the present
mischief;
— it must not offer privileges to any
group, eg, followers of a particular religion or religious believers
as a class: it needs therefore to cover non-religious as well
as religious beliefs and the absence of belief or of any specific
belief;
— it must avoid interfering with the
free expression of views and beliefs that fall short of inciting
hatred of people on religious grounds. These will in the right
context (see below) include mockery, satire, abuse and insult,
denunciation of practices with damaging effects, and much that
believers will class as vilification.
14. We suggest therefore that the law needs
to recognise the fundamental importance of the context of any
words or behaviour that are complained of. [5]The
same words may be harmless on the pages of a secularist journal
but be objectionable in a leaflet distributed outside a place
of worship. Mockery in a late night routine delivered to willing
customers in a comedy club is different from the same mockery
shouted from a soapbox to passers-by in a town suffering from
religious tensions. Those who of their own volition attend a public
meeting of animal rights activists campaigning against ritual
slaughter have only themselves to blame if their religious beliefs
are outraged by what they hear. This is very different from the
inflammatory leafleting and street-corner agitation which we see
as the proper target of a new restriction of freedom of speech.
15. The present draft fails to meet these
requirements principally because it is based on the use of "threatening,
abusive or insulting words or behaviour". This formula, derived
from long-standing public order legislation, is the source of
much of its weakness, and it is unnecessary. It makes the means
by which hatred may be incited fundamental rather than the actual
incitement and presumes, subject to rebuttal, that abusive and
insulting language will in fact incite hatred. We are advised
that in most, if not all, other European jurisdictions the criminal
law is used to prohibit incitement of both racial and religious
hatred but that none uses this type of formula.
16. The Human Rights Act enables rights
guaranteed under the European Convention on Human Rights (ECHR)
to be enforced in UK courts, and the criminal law can serve as
a suitable vehicle to regulate the freedoms guaranteed under the
ECHR. It is therefore appropriate now to think again about how
to formulate laws that make it a criminal offence to incite hatred
on grounds of religion (and probably useful at some stage to rethink
about incitement of racial hatred as well), thus protecting rights
under Article 9, while not infringing rights to freedom of expression
guaranteed under Article 10 other than as implicitly provided
for under Article 17 (which provides that nothing in the Convention
may be interpreted as implying any right to engage in any activity
aimed at the destruction of any rights and freedoms in the Convention,
or at their limitation to a greater extent than the Convention
provides).
17. We ventured in our oral evidence to
the Committee an alternative formulation that focused on:
the use of language or behaviour that in the
judgment of a reasonable person was in all the circumstances likely
to stir up hatred of a group of persons characterised by their
religion or belief or to inhibit their exercise of their rights
under the Human Rights Act, in particular those under Article
9 to freedom of religion or belief.
Unfortunately we have been unable to obtain
any expert legal opinion on this draft other than that it might
offer a complex list of tests for a jury.
18. We have however reviewed our original
suggestion and now propose something on the following lines:
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 manner and circumstances that
a reasonable person would think that such hatred is likely to
be stirred up.
2. 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.
19. 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.
20. This structure could, we believe, be
applied to the other activities in which incitement of religious
hatred could occur, eg, publishing or distributing written material,
possession of written material, broadcasting etc., as specified
in the current Public Order Act and the present Bill.
21. Its virtues in our eyes are:
(a) that it places the emphasis on religious
hatred (as intention or effect) rather than on the nature of any
words etc used, since context and manner can so alter the import
of words (consider Antony's speech in Julius Caesar);
(b) that it casts the law directly in terms
of hatred of people and avoids the phrase "religious hatred"
(with its inevitable but unintended implication of hatred of religion
or religious doctrines or practices);
(c) that it uses the formula "religion
or belief", the phrase that is found in the ECHR, in the
EU directive on discrimination in employment (EU Council Directive
2000/78/EC) and hence in the draft Employment Equality (Religion
or Belief) Regulations. We see this as a virtue because it comprehends
both religious and non-religious lifestances: Humanism, which
is not a religious belief and is much more than the absence of
one, has recently been recognised as a "religion or belief"
in an English case—see Annex two, where we record the interpretation
of the phrase in some European cases.
22. As we said in our oral evidence, there
should be a defence of justification, which would be particularly
relevant in cases where there was no intent but there was likelihood,
with or without achievement, of producing religious hatred. Lord
Lucas in the Second Reading debate spoke of "a defence . . . on
the grounds that the action taken by the accused was reasonable
in all the circumstances". We are unable to suggest a draft
but we see the need to safeguard legitimate criticism of the practices
of a religious group—maybe of the barbaric punishments under
Shari'ah law in some Muslim countries, or of the cover-up by the
Jehovah's Witnesses of the involvement of many of their Elders
in child abuse. Another example might be a denunciation of Roman
Catholics on the basis of their opposition to the use of condoms
by HIV-positive men, even in areas with a high incidence of HIV.
Such speech might otherwise risk being investigated, charged,
prosecuted and even penalised.
23. We believe that the Attorney-General's
consent should be required for any prosecution, and we would in
fact look favourably on a ban on private prosecutions. The Attorney-General
should be required to produce an annual report to Parliament on
the exercise of his discretion in such cases, the report extending
to all cases referred to the Crown Prosecution Service by the
police.
24. Drafting legislation is, however, a
matter not for laymen but for skilled Parliamentary draftsmen.
While we should like to have presented a finished draft to your
Committee, it would still have required their expert scrutiny.
In the event we will have to confine ourselves to the suggestion
of a line of approach along with our list of requirements.
ALTERNATIVE APPROACHES
TO THE
PROBLEM
25. There remains the possibility that no
draft can be devised to meet these requirements. We are left then
with an undoubted but very specific mischief. Is it without remedy?
26. One inelegant thought is that, given
that the present mischief is largely confined to the Muslim population,
a short Bill might be brought in, compounding the anomaly over
Sikhs and Jews, whereby Muslims would be defined, perhaps for
the sole purpose of the relevant parts of the Public Order Act,
as an ethnic group.
27. In more orthodox vein, we observe that
in the absence of any specific law on incitement of religious
hatred, existing law and the recent definition of a number of
"religiously aggravated" offences goes a long way towards
the intentions of Lord Avebury's Bill. We note that Mr Peter Fahy,
the deputy chief constable of Surrey, although he saw a need for
a specific law on religious hatred, said in his evidence to the
Committee that the new religiously aggravated offences had "to
some extent . . . been overlooked by a lot of
commentators, and indeed some police forces and prosecution authorities.
To some extent, we are still catching up in terms of putting out
guidance to police forces and individual police officers . . . "
28. We draw attention in particular to Annex
three, which compares section 18 of the Public Order Act as it
would be amended by the Religious Offences Bill with the existing
sections 4, 4A and 5 of the Act. (We note in passing that these
provisions are themselves open to many of the objections we have
raised against the Bill.) It seems to us that section 4A in particular
could be used against racists who stir up hatred of Muslims but
fade away before any violence is offered: it is based on threatening,
abusive or insulting words and requires proof of intent to cause
harassment, alarm or distress and of this being the effect, but
it does not refer (like section 4) to immediate violence
as the feared or likely outcome, and it does offer up to two years
imprisonment, unlike section 5 which sets lower hurdles for conviction
but results only in a fine.
29. We reject calls by some (mainly but
not exclusively Muslim) witnesses for a law to deal with vilification
of religion. This would in effect extend the blasphemy law, which
we have already protested is overdue for abolition. Nor a fortiori
should the law deal with disdain of religion or of believers,
although we recognise the sincerity of those who complain of such
treatment. The research conducted at the University of Derby for
the Home Office[6]
demonstrates the extent of hurtful ignorance or misunderstanding
and of discrimination against identifiable groups of religious
believers. But the remedy for these ills lies in the extension
into all spheres of anti-discrimination legislation such as the
draft regulations about employment referred to above and in an
advance towards an open society by the removal of the pro-Christian
bias in our laws and institutions—eg, the legal compulsion
even on community schools to act as if they were Christian institutions.
Progress is being made in these directions, albeit far too slowly.
4 December 2002
Annex 1
DETAILED CONCERNS WITH THE RELIGIOUS OFFENCES
BILL AND THE DRAFT GUIDANCE FROM THE ATTORNEY GENERAL
CONCERNS ABOUT
THE BILL
1. The Bill refers to "lack of religious
belief" but does not recognise that Humanism is a lifestance
that is not defined merely by its rejection of religion, so that
humanists as such are unlikely to be protected by the Bill. There
is much English case law based on a narrow definition of religion,
and we are uneasy that the Bill and the guidance are not cast
in terms of "religion or belief" (see Annex two). We
understand that the Home Office considered the use of this formula
but rejected it for use in the criminal law. If it is finding
its place in the civil law, we see no good reason why it should
not be used in the criminal law.
2. The need is to protect people, not beliefs.
Although the definition of "religious hatred" is in
terms of hatred of groups of people, the term itself and the very
name of the Bill do not suggest this and are liable to give rise
to much misunderstanding. It sounds as if it is about incitement
to hatred of religion or of religious beliefs and there is already
much public misunderstanding to this effect. We are worried that
this will lead to ill-founded but vexatious complaints and attempts
to prosecute. It may also lead to widespread self-censorship by
those who do not understand the difference. The law and the guidance
should be cast explicitly in terms of inciting hatred of persons
defined by their religion or belief, not in the shorthand of "inciting
religious hatred" with a limiting definition elsewhere.
3. We believe the Attorney General should
also report annually—maybe to the Joint Committee on Human
Rights—on the operation of the Act and his exercise of his
powers under it.
4. The formulation "threatening or
abusive or insulting words" (leaving aside behaviour) would
cover a wide range of legitimate speech and encourage complaints
and (attempted) prosecutions from those religious groups that
are both highly sensitive to disagreement with, let alone criticism
of, their beliefs and militantly litigious in pursuing what they
conceive of as their rights. Many of them command not just deep
commitment by their adherents but considerable financial resources.
If works are admittedly—professedly—abusive or insulting,
the only defence left is lack of intent—a weak shield in
the circumstances, leaving the defendant entirely at the mercy
of the judge's summing up and the jury's interpretation of his
motives.
5. The Bill exempts acts committed in a
private house but it applies to acts (say) at a meeting for members
of a secularist group, or at a public meeting to deplore the enticement
of children to leave their families and join cults such as the
Children of God. Such occasions are midway between being private
and public: anyone who attends does so of their own volition,
and if as a result of their religious beliefs they are outraged
they have only themselves to blame. We would wish to see such
semi-private occasions exempted from the law, although we have
not found a formula which would achieve this without embracing
also (say) BNP meetings that were purely anti-Muslim. This leaves
us relying upon the suggested defence of justification.
6. The Bill provides for a defence that
the defendant did not suspect that his words were threatening
or abusive or insulting. But this is nugatory: he may well have
intended them to be such, and such speech about religions is entirely
legitimate. No defence is offered, however, that he did not intend
them to or believe them likely to incite hatred. For example,
a speaker may find he has an audience of a different character
from what he expected—maybe an audience that has come with
the specific intention of being incited, (See also the draft Guidance
at paragraph 5.8 and annex two). We believe our own draft is only
slightly preferable, in that it imports consideration of the manner
as well as the circumstances of the offending behaviour or speech,
and wonder whether lack of intent combined with misapprehension
of the circumstances should be allowed as at least a mitigating
factor.
7. The Bill creates an offence of possessing
religiously inflammatory material—or rather, that phrase
would be used in the crossheading while the clause is actually
about "possession of written material which is threatening,
abusive or insulting"—with intent to stir up religious
hatred or in circumstances where it is likely that religious hatred
would be stirred up. Here again the difference between race and
religion comes out in the most pointed way, Racist material has
no legitimacy, but material critical of religion is legitimate.
Such material—some historical, some modern—would routinely
be in the possession of many members of the National Secular Society
and the British Humanist Association. The question of whether
an offence is committed again comes down to deemed intent—which
is too uncertain to be the sole basis for criminal liability—or
likely effect, a dangerous inhibition on free speech when many
militant religious groups seem to seek grounds for offence and
possibly even stage displays of exaggerated reaction.
8. Another example is provided by Salman
Rushdie's Satanic Verses. Some would argue that it was insulting
just because enough people were, in fact, insulted by it. And
religious hatred was certainly stirred up, and likely to have
been stirred up since some believers in Islam (as in other religions)
require almost nothing to trigger hatred. [7]True,
the hatred was directed principally against Rushdie, but it also
predictably stirred up a hate-filled backlash. Yet so far as we
can see an action could lie under the Bill against material in
itself quite dispassionate but sufficiently critical to have the
unfortunate result of inflaming the mob.
9. As in the last example, the innocent
expression of views by a person or persons may render them the
objects of religious hatred by another group with strongly held
contrary views. Given what some see as the perverse use of the
law on incitement to racial hatred against some racial minorities,
it is not wholly incredible in such circumstances to imagine that
the innocent parties might be accused of inciting hatred against
themselves.
CONCERNS ABOUT
THE GUIDANCE
10. The guidance should be statutory—otherwise
it is meaningless.
11. The guidance is cast entirely—from
its title to the important clarification in 5.12—in terms
of the expression of religious beliefs and its purpose is even
stated as to counter concerns that those making "legitimate
expression of religious beliefs could find themselves liable to
investigation and prosecution". The guidance does not mention
expression of the rejection of religious beliefs.
12. The guidance refers throughout to the
expression of legitimate religious beliefs. The idea of the legitimacy
of a belief is not in the Bill, but the Attorney General seems
to envisage that some beliefs may be illegitimate. We are concerned
at this and worried that rejection of religion may be a front
runner as an illegitimate belief in the eyes of some people—maybe
including some future Attorney General.
13. The Guidance says (paragraph 3.1) that
the police may "arrest and even …charge" before
consulting the Attorney General. We are opposed to the police
having such powers. Arrest without consultation should only be
necessary in extreme cases of incitement to violence where the
Public Order laws will apply and charges should in every case
await the Attorney General's ruling.
14. The Guidance says (paragraph 3.3) that
"it is open to the police to take advice from the CPS [Crown
Prosecution Service] before or during an investigation".
We think the "expectation" that this would happen is
not enough: it should be required.
15. The Guidance says (paragraph 4.1) that
if there is sufficient evidence to mount a prosecution, the Attorney
General will then consider if one is "needed in the public
interest". Any guidance should refer here to the importance
of Article 10 of the ECHR, as in sections 12(4) and 13(1) of the
HRA. Guidance published at the end of November[8]
said that it will "almost always" be considered in the
public interest to prosecute alleged homophobic offences: that
is welcome, but the policy could, we fear, easily be applied to
alleged homophobic offences as another variety of hate crime where
it would have dangerous implications.
British Humanist Association
4 December 2002
Annex 2
Religion or Belief
Article 9 of the European Convention on Human
Rights reads in part:
Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change
his religion or belief and freedom, either alone or in community
with others and in public or private, to manifest his religion
or belief, in worship, teaching practice and observance.
As a result, European law is moving in the direction
of recognising a category of "religion or belief", treated
as a single concept. Case law (see below) has shown beyond doubt
that Article 9 embraces not only religious beliefs but also non-religious
beliefs such as Humanism and atheism. Indeed, the first case[9]
in the UK has recently been reported.
The same phrase is used in Article 18 of the
International Covenant on Civil and Political Rights:
Everyone shall have the right to freedom of
thought, conscience and religion. This right shall include freedom
to have or adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public
or private, to manifest his religion or belief in worship, observance,
practice or teaching.
This was glossed by the Human Rights Committee:
Article 18 protects theistic, non-theistic and
atheistic beliefs, as well as the right not to profess any religion
or belief. The terms belief and religion are to be broadly construed.
Article 18 is not limited in its application to traditional religions
or to religions and beliefs with institutional characteristics
or practices analogous to those of traditional religions. [10]
The phrase has also been adopted in the EU directive
on religious and other discrimination in employment:
The purpose of this Directive is to lay down
a general framework for combating discrimination on the grounds
of religion or belief, disability, age or sexual orientation as
regards employment and occupation, with a view to putting into
effect in the Member States the principle of equal treatment.
EUROPEAN CASES
(a) "As enshrined in Article 9, freedom of thought,
conscience and religion is one of the foundations of a "democratic
society" within the meaning of the Convention. It is, in
its religious dimension, one of the most vital elements that go
to make up the identity of believers and their conception of life,
but it is also a precious asset for atheists, sceptics and the
unconcerned."— Kokkinakis v Greece: (1994)
17 EDRR 397, para 31
(b) "The right to freedom of religion
as guaranteed under the Convention excludes any discretion on
the part of the State to determine whether religious beliefs or
the means used to express such beliefs are legitimate."—
Mamoussakis v Greece: (1996), EHRR 387, para 47.
(c) Belief means "more than just `mere
opinions or deeply held feelings'; there must be a holding of
spiritual or philosophical convictions which have an identifiable
formal content."— McFeekly v UK: (1981),
3 EHRR 161.
(d) "The term `beliefs' denotes a certain
level of cogency seriousness cohesion and importance"—Campbell
and Cosans v. UK: (1982), 4 EHRR 293 para 36—related
to Article 2 (right to education).
(e) Humanism is a "religion or belief"—re
Crawley Green Road Cemetery, Luton (St Alban's Consistory Court:
Bursell CH, December 2000) (2001)2WLR1175.
l4 December 2002
Annex 3
Effect of Religious Offences Bill
Acts intended or likely to stir up racial
or religious hatred
Use of words or behaviour or display of written
material
(1) 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 racial
or religious hatred, or
(b) having regard to all the circumstances
racial or religious hatred is likely to be stirred up thereby.
(2) An offence under this section may be
committed in a public or a private place, except that no offence
is committed where the words or behaviour are used, or the written
material is displayed, by a person inside a dwelling and are not
heard or seen except by other persons in that or another dwelling.
(3) A constable may arrest without warrant
anyone he reasonably suspects is committing an offence under this
section.
(4) In proceedings for an offence under
this section it is a defence for the accused to prove that he
was inside a dwelling and had no reason to believe that the words
or behaviour used, or the written material displayed, would be
heard or seen by a person outside that or any other dwelling.
(5) A person who is not shown to have intended
to stir up racial or religious hatred is not guilty of an offence
under this section if he did not intend his words or behaviour,
or the written material, to be, and was not aware that it might
be, threatening, abusive or insulting...
2 Criminal Law Offences against Religion and Public
Worship (Law Commission no. 145), HMSO, 1985, at paragraphs 2.29,
2.35, 2.42 and 2.53. Back
3
Op. cit., paragraph 2.18, quoting paragraph 6.1 of their 1981
working paper. Back
4
Op. cit., paragraph 2.35. Back
5
The Bill, like the present Public Order Act, makes a move towards
this by exempting acts done in private dwelling houses, a specific
exclusion with which we agree. Back
6
Weller, Feldman & Purdam: Religious Discrimination in
England and Wales, Home Office Research Study 220, February
2001. Back
7
Witness, for example, the communal riots and deaths resulting
from the attempt to stage the Miss World pageant in Nigeria. Back
8
The Guardian, 28 November 2002. Back
9
re Crawley Green Road Cemetery, Luton-St Alban's Consistory Court:
December 2000. Back
10
General Comment no 22(48) (Art. 18) adopted on July 20 1993,
CCPR/C/21/Rev.1/Add.4, 27 September 1993, p1. Back
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