Since the
horrendous events in London on 7 July, Muslim owned property has been
attacked in London, Leeds, Birkenhead, Telford and Belvedere in Kent.
It
is therefore not surprising that the British Muslim community is
feeling increasingly vulnerable, despite roundly condemning the
atrocities in London.
It is against this backdrop that the
Government is attempting for the third time to meet its promise to give
all people of all faiths the same protection against incitement to
religious hatred. The Racial and Religious Hatred Bill is intended to
extend the incitement to racial hatred offences in the Public Order Act
1986 to include stirring up hatred against persons on religious
grounds. As such, any prosecution will require the consent of the
Attorney General.
The Bill was last considered by parliamentary
committee on 30 June. It will face further parliamentary scrutiny at
the report stage before it can go forward for a third reading and the
royal assent.
Related
As currently drafted, the legislation will make it
a criminal offence, punishable by a maximum of seven years
imprisonment, for anyone to use threatening, abusive or insulting words
or publish or distribute such material, either:
● with the intention of stirring up hatred of people on religious grounds; or
●
where in all the circumstances the material is likely to be seen by any
person in whom it is likely to stir up religious hatred.
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Those
intending to stir up religious hatred are caught by the first limb of
the offence but many, including those in parliament, have expressed
concern about the scope of the second limb of the offence.
While the inclusion of the words “in all the circumstances”
allows
for some judicial discretion to consider context and intention, the net
is cast very wide. All that the prosecution must show is that religious
hatred was likely to be stirred up in one person who was likely to read
the material.
Religious hatred is defined as “hatred against a
group of persons defined by reference to religious belief or lack of
religious belief”. It is intended to protect the believer, not the
belief.
Hatred is not defined in the legislation so that task
will fall to the courts. The parliamentary debates have made it clear
that hatred is more than contempt, ridicule or prejudice; it is
“intense dislike and enmity” or a “sustained, not necessarily violent
but certainly aggressive dislike”.
While the legislation will
contain a list of religious beliefs whose holders will be protected by
the legislation and a list of those that fall outside the legislation,
the lists are not exhaustive.
Although there are many situations
where this legislation will be relevant, in practice it probably will
arise most frequently in relation to news stories with a religious
element. A report of the concerns recently expressed by the
Metropolitan police that certain West African religious groups are
involved in ritual child abuse could unintentionally give rise to a
risk of religious hatred. In the absence of threatening, abusive or
insulting language it should be possible to avoid the risk of any
prosecution.
Most would welcome any reasonable measures to
prevent those determined to encourage religious hatred and to reassure
those exposed to it. However, for those measures to be successful they
must be clear, certain and applied only in circumstances where the
mischief is obvious and damaging.
Jonathan Crusher is a partner in the media team at Farrer & Co
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