CHAPTER 7: Freedom of Expression
79. The European Convention on Human Rights gives
equal status, in Articles 9 and 10, to, respectively, freedom
of thought, conscience and religion and freedom of expression.
Both are, however, qualified rights: they may be restricted by
the state in certain circumstances, for example, on grounds of
public safety, order, morals or to protect the rights of others.
These Articles have been a major preoccupation in our deliberations,
and have exercised the minds of many witnesses. References to
them occur throughout this report. In Chapter 6 we considered
incitement legislation generally, but there may be value in separate
consideration of freedom of expression in the context of religious
offences.
80. The "incitement" Clause (Clause
2) of the Religious Offences Bill, like its predecessor dropped
from the 2001 Bill, is intended to fill a gap, treating religious
incitement the same as racial incitement as it is dealt with in
part III of the Public Order Act 1986. In the view of the British
Humanist Association there are "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"[85].
81. On the other hand, religion is closely bound
up with race or nationality in many communities, and is inextricably
part of their identities. The Sikhs, Jews, and others have ethnic
identities, but they also belong to discrete religions. It cannot
be right that incitement to hatred of Sikhs is against the law
if incitement to hatred of Christians or Muslims is still permissible.
This could lead to court cases under Article 14, read together
with Article 9 of the convention, in that freedom of expression
has to be exercised without religious discrimination.
82. For his part, the DPP said: "
we are very wedded to the idea that people can say what they like
within reason, and a good thing too. I am quite sure that prosecutors
who have grown up over the last 20, 30, even 40 years will have
seen the way that what we see on television is very different
from what we saw a few years ago and that generally we are much
freer to say, show whatever things than we were a long time ago.
That must inform, for instance, our attitude (to change the subject
completely but I think it relevant) to obscenity. When we get
things in now for the possibility of prosecution
we attempt
... to move reasonably in scale with what we as citizens experience
before we walk into the office. Therefore, taking the ECHR on
board, which reinforces our right to say what we like within reason,
and speaking as a citizen rather than as a prosecutor, I agree
[with your reservations about turning it into a crime, going round
saying that you hate things]. The legislation is drafted so that
it is not just the intention but the likelihood that hatred will
be stirred up; [that] does move the law quite far in the other
direction because you do not even have to intend that racial hatred
be stirred up, under the current law. It just has to be an objective
fact that it is likely to be stirred up by what you have to say,
and I suspect that that is the bit of the Act which the police
and prosecutors would have the most difficulty with".[86]
The police did say that in their discussions about community relations
they welcomed the addition of incitement to religious hatred,
to add to their armoury[87].
There are however even more problems about incitement to religious
hatred than to the racial variety. In addition to the difficulty
of proving intent (against a defence of fair comment[88])
is the implication for society in general. This has been described
as the "chilling effect", or self censorship motivated
by fear that robust expressions of opinion may be judged to have
overstepped an undefined boundary and become the subject of prosecution.
83. The gap between criminal incitement and permissible
freedom of expression is narrow, perhaps even more so in the case
of religion than of race. There is no difficulty in recognising
substantive criminal acts such as those of violence, threats or
harassment, or even inchoate offences such as incitement to violence
(of any type) or conspiracy, aiding and abetting. But it is more
difficult to define the point at which a particular expression
takes on characteristics that can reasonably be proscribed in
the spirit of Article 10.2 of the European Convention. Trenchant
and even hostile criticism of religious tenets and beliefs has
to be accepted as part of the currency of a democratic society,
and that is not at issue. The words used would have to be directed
at the members of a religious group and not at their beliefs or
customs to make them criminal, but they would have to fall short
of calling for specific criminal acts against those members to
be caught by a pure incitement offence. So there is only a limited
area in between which seems to deserve attention. It has been
identified as vilification of the foundations of a faith[89].
This is a difficult area. The dividing line between criticism,
though assertive and hostile, and vilification will be
varied and subjectively defined; the dividing line has not yet
been pronounced on by any UK court. It is unlikely to retain permanence
as society's attitudes and those of the faith communities develop
and evolve.
84. One other factor is clear from the evidence:
those who wish to promote religious or racial hatred, whether
or not masquerading behind some pretext, are well advised as to
their criminal liabilities. Here it is probably best to concentrate
on published material: the spoken insult seems to be conveyed
in a context where the point at issue is probably a public order
or harassment offence, and so susceptible to prosecution. Although
many of the examples given to us by witnesses consisted of offensive
conduct or remarks made to individual persons, it is the slogans
and inflammatory publications which are at the core of the perceived
problem. If such a degree of ill will really exists, even
though limited in its extent, the question must be asked
whether it is worthwhile for Parliament to legislate to convey
a message to those who are well able to avoid the pitfalls. It
would cause nothing but dissatisfaction to those who are maligned
to discover that, yet again, the message has had no effect other
than to indicate a new way to propagate hate speech or publications
without incurring criminal liability. On the other hand it might
be said that it is important for Parliament and the Government
to make clear that they did not expect a large number of additional
cases to be prosecuted, but they did expect that publication of
some of the most inflammatory material could be deterred by extremists'
fear of the risk of prosecution. It is more likely that a defence
would be run under the European Convention's Article 10. Certainly
this would be the case if Parliament failed to spell out the need
for proportionality and its reason for restricting freedom of
expressionthat is, the necessity of preventing disorder
or crime arising from deliberately provoked hatred of particular
religious groups, and the protection of the rights of those groups.
Even if that were done, it would not be an easy test for judges
and juries to apply, let alone apply consistently.
85. In summary, there are certain to be problems
in bringing prosecutions, just as there are with incitement to
racial hatred: success rates are impossible to forecast, and only
the superior courts, on individual appealswhich will almost
certainly not cover the whole range of problemswill be
able to clarify demarcation lines. Whether the signal or message
which is to be transmitted warrants new legislation within the
boundaries of the criminal law as it has been patched and elaborated,
and whether this is likely to lead to many successful prosecutions,
are contentious matters which only Parliament can decide.
A prosecuting filter
86. Under Part III of the Public Order Act 1986,
supplemented by the provision for aggravated offences in the 1998
Act, prosecutions for incitement to racial hatred may only proceed
if the Attorney-General gives his consent. This is part of a system
whereby the CPS Code criteria for bringing a prosecutionthe
evidential test; and the public interest test (para. 6 of the
CPS Code, comprising a range of indications which includes aggravating
factors)are subject to an overview. This would take place
at several levels in the CPS, by the Director of Public Prosecutions
if necessary, as head of the CPS. Sometimes, as in this case,
Parliament places an extra constraint, by sanctioning a prosecution
only if the Attorney-General consents. This duty is no sinecure;
in the present context the issue is that any offence of incitement
to religious hatred would have to receive the Attorney-General's
consent under the RO Bill. Some witnesses have remarked that the
number of prosecutions brought under Part III of the 1986 Act
is not very high. For example, the Board of Deputies of British
Jews say that they are generally satisfied with existing legislation
but are increasingly concerned by "the systematic failure
of the CPS to prosecute the offences of incitement to racial hatred"[90].
They quote the figures and say that much, but by no means all,
inflammatory matter is produced by Islamist individuals and groups.
They say that this concern is shared by the Hindu and Sikh communities.
"Failure to prosecute literature inciting hatred inevitably
results in violence against our community". They therefore
fear that a new offence of incitement to religious hatred might
be similarly limited in effect by a reluctance to prosecute. On
the other hand, Muslim witnesses have stated[91]
that the immediate problems to be addressed are a) the BNP and
NF websites, posters, etc; b) Combat 18, who tend to target converts
to Islam; and c) Kahane Chai (Jewish Defence League)all
of whom are well versed in the fact that the current race legislation
does not protect Muslims. The Muslim Council of Britain says that,
if the Attorney-General's role is to be preserved, he should be
required to publish the criteria used in forming his decisions[92].
87. Because of the small number of prosecutions
where the offence has concerned incitement to racial hatred, the
credibility of proposed new legislation extending this safeguard
to religious hatred has been cast in doubt. In suggesting a similar
filter for religious incitement cases, the case for so doing may
be stronger: there is room for dispute as opposed to dialogue
between religious communities of different faiths, as indeed
between constituent parts of the same faith. The Committee would
have no difficulty in allowing for a veto on prosecutions, not
least private ones, based on what might be described as vexatious
litigation. The Attorney-General could sift out such casesif
they had not been stopped already by the CPSand avoid the
undesirable confrontations[93].
Of course, the outcome could be that a small number of prosecutions
would be brought: the facts would be straightforward and a conviction
(or acquittal) uncontroversial.
88. However, a number of witnesses made a further
point, exemplified in the submission by JUSTICE[94].
They note the 'delicate balance' to be struck between incitement
to hatred and protection of freedom of expression; they thus support
the view that prosecutions should only go forward with the Attorney-General's
authority. They recommend other safeguards, including a note of
guidance for the Attorney-General and regular parliamentary scrutiny
through the publication by him of an annual report, which should
include a racial/religious breakdown of the figures. Other evidence
seeks to ensure that the Attorney-General gives reasons when he
refuses to allow a prosecution to proceed.
89. Both the DPP and the Attorney-General were
asked to comment, in their oral evidence, on these propositions.
The DPP explained why, in his opinion, there has been a dearth
of prosecutions under Part III of the Public Order Act 1986. Police
forces have their own policies about only reacting to complaints.
Other evidence confirms this. There are, for instance, practical
difficulties in collecting information about religiously motivated
crimes. Pressures on the police make them reluctant to record
more data[95],
and so far only the Metropolitan Police have been recording this
information[96].
Nevertheless, much depends upon members of the public reporting
incidents to the police. The Home Office evidence accepts that
there has been underreporting of cases[97].
The DPP said that the other method is to go out to obtain intelligence
and thus catch offenders. The concept of "hatred" is
novel to criminal law and, certainly for the aggravated offences
under the 1998 Act, has to be "something very extreme".
Thus "any attempt to stifle what many people think of as
legitimate debate" does not find its way into the criminal
courts. Then there is the evidential problem of identifying the
author of, at least, the written word[98].
In fact the DPP said that the vast majority of cases brought to
them by the police had been put up to the Attorney-General by
the CPS. He doubted whether a list of the cases which the Attorney-General
had considered would give the public a very complete picture.
It would place an extra burden on his staff, diverting them from
other tasks[99].
90. The DPP suggested as a more constructive
approach that the Attorney-General ask the inspectoratesof
the police, CPS and Courtsto look into how well the legislation
has been working. The Attorney-General accepted the practical
impediments to prosecution, about the person(s) responsible for
producing the material and in what jurisdiction it has been produced.
So he has instigated discussions between the Association of Chief
Police Officers and the CPS to diagnose these problems. It is
not that the cases are coming to him and he refuses consent; the
cases are not reaching him because the evidence is not available[100].
The Committee also recognises that there must be cases where,
as the Legal Officer with overall (and not only in incitement
to hatred cases) responsibility for the public interest element
in prosecutions, the Attorney-General has to withhold his consent
on grounds where the public interest itself dictates a denial
of the publication of reasons.
91. In 1986, one reason for interposing the Attorney-General's
fiat was to prevent vexatious prosecutions. In the religious context
this would be essential in order to minimise litigation over disputes,
for example, between (or within) sections of a particular religion
or to protect those who, quite unknowingly, stray into remarks
(perhaps when proselytising) which turn out to be religiously
offensive to someone. This, however, is not all: in 1986 the Home
Office minister in charge of the Public Order Bill said: "The
Crown prosecutors will provide an important and formidable legal
check, but, as these criminal offences give rise to major issues
of principle regarding freedom of speech and the freedom of the
press, the Attorney-General's fiat is appropriate. Offences involving
such tricky issues should be properly and professionally assessed.
The balance between freedom of expression and a criminal act is
a highly sensitive issue"[101].
92. As to his role in this respect, either under
the existing racial legislation or what is proposed in connection
with religious aggravation and, specifically, incitement to religious
hatred, the present Attorney-General said: "the starting
point is that Parliament itself has decided where the balance
should be struck between freedom of expression and unlawful conduct[102]
When I exercise my power to consent, whether it is to this
sort of offence or indeed in any of the other cases where I have
a duty or the statutory power to consent to consider, I do so
of course independently from government, that is clear
It is important as well that it is not just independent but quasi
judicial, and that is what I am attempting to do
So I regard
personally the requirement for my consent as an entirely appropriate
safeguard against unmeritorious cases going forward, against the
wrong cases going forward"[103].
If a prosecution is not permitted, the question of whether that
decision is subject to judicial review arises. In his evidence,
the Attorney-General referred to the Gouriet case,[104]
in which the House of Lords ruled that the Attorney-General was
only answerable to Parliament. But in 2001 Lord Woolf said that,
notwithstanding that judgement, if the Attorney-General gave his
consent in a case where it was perverse to do so this decision,
today, would probably be subject to judicial review[105].
Thus it is at present difficult to know whether the Attorney-General's
refusal to consent can be tested. If the filter were to be the
DPP (through whom any such decision would have been considered,
in the process of being passed upwards to the Attorney-General),
there is no dispute that a refusal to prosecute would be subject
to judicial review. It may be, therefore, that the level at which
consent must be given is such that, though appropriate in 1986,
it should now be reduced to the DPP. At least there would then
be some certainty that the boundary of Article 10.2 could be tested
in the courts.
93. There does not appear to be any case law
from the European Court in Strasbourg about a member of the Executive
(however impartial) taking this sort of decision. The Attorney-General
said in evidence that his duty to consider giving consent was
much more empirical[106],
and is also quite independent from the Government of the day:
he quoted the example of the fall of a Government in the 1920s,
the Campbell case, as a warning about the necessity for
political impartiality. His responsibility is to Parliament[107].
It must be recognised, however, that this is part of the UK constitutional
arrangements and is not proof against criticism in Strasbourg.
94. What has never yet been considered, however,
is the question whether English legislation can encapsulate the
distinctions, which arise jointly under the European Convention's
Articles 9 and 10, so as to be susceptible to a decision, after
proper directions, by a jury. Similar considerations would
almost certainly be necessary in order to implement the proposed
Council Framework Decision on Xenophobia and Racism (see Hate
Crime, paragraph 107); the same would hold good if something like
the present proposals for incitement to religious hatred were
enacted. It may be that a form of words can be distilled from
the judgement in Otto-Preminger Institut (see paragraph
48 above), but we have no doubt that a test would have
to be devised. The Attorney-General saw no problem: it was his
stance that once Parliament has decided that incitement to hatreda
strong wordis an offence the line has then been drawn[108].
It is hardly a matter for the prevention of disorder (other offences
are quite good enough to attend to that). Both proportionality
and the protection of the rights and freedoms of others seem to
indicate a test based on vilification of a community or its faith.
The threshold would have to be quite high, so as to allow for
criticaleven hostileopposition. But the ceiling
would need to be low enough to ensure that those who abide by
the beliefs under attack are not discouraged from exercising their
freedom to hold and express them. We find this a difficult issue.
85 Volume II, page 72 (para 5) Back
86
Volume II, QQ594/5 at pages 215/216 Back
87
Volume II, Q159 at page 40 Back
88
Volume II, Q160 at page 40 Back
89
Volume II, Q338 at page 138 Back
90
Volume III, page 3 (para 5) Back
91
Volume II, QQ306 & 308, 342, 370 and 395 at pages 128, 138,
157 and 175 Back
92
Volume II, page 134 (para 3.8) Back
93
Volume II, Q651 at page 226 Back
94
Volume III, page 51 (para 3) Back
95
Volume II, Q131 at page 35 Back
96
Volume II, Q123 at page 35 Back
97
Volume II, QQ 74/75 at page 21 Back
98
Volume II, Q584 at page 214 Back
99
Volume II, Q614 at page 218 Back
100
Volume II, QQ653, 676 at pages 226 and 230 Back
101
HC Hansard Standing Committee G, 25 March 1986, col. 887 Back
102
Volume II, Q641 at page 224 Back
103
Volume II, Q650 at page 225 Back
104
Gouriet v. Union of Post Office Workers [1978] AC 435 Back
105
R v. Shayler [2001] 1 WLR 2206 at p 2216 Back
106
Volume II, Q650/651 at pages 225 & 226 Back
107
Volume II, Q683 at page 231 Back
108
Volume II, QQ661-664 at pages 227 & 228 Back
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