SUMMARY:
by MARK MULLINS
Barrister (Co-chairman of the Public Policy Sub-committee of the Lawyers’ Christian Fellowship)
The following is the summary of a talk given by Mark Mullins at Inner Temple Hall in the Temple where many barristers have their chambers, on Tuesday 8 February.
IN December 2004, in the State of Victoria, Pastor Daniel Scot was found to have incited hatred against Muslims after holding a seminar on Islam in which he quoted from the Qu’ran. Could what happened to Daniel Scot happen in the UK if an “incitement to religious hatred” is created? I believe it could.
The government claims it couldn’t and that it is very different from the Australian law. They are right to say it is different — in fact it is much worse! We will look at why it is worse and why the government’s assurances are of little comfort. Let’s start by looking at the two offences.
Section 8 of the Racial and Religious Tolerance Act 2001 (the State of Victoria, Australia, Law) states:
A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Clause 122 of the Serious Organised Crime and Police Bill (UK) will amend Section 18 of the Public Order Act 1986 so that it will read:
- (1) A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is 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 the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial or religious hatred.
This proposed offence carries with it a penalty of up to seven years imprisonment. Religion is not defined in the proposed offence and can therefore cover cults including Satanism. (We saw recently that on HMS Cumberland a satanist was given permission to read his satanic scriptures on board ship.)
So, how are these laws similar and how are they different?
Conduct
The Australian law does not specify what conduct constitutes stirring up hatred. The UK government’s proposed law specifies that the conduct must be threatening, abusive or insulting.
This may sound fine. It may sound as though the government’s proposed offence has a more limited reach but, in actual fact, other cases show that it could catch conduct which most people would consider perfectly reasonable.
Consider Harry Hammond v DPP [2004] EWHC 69. Mr Hammond was a 67 year old street preacher who suffered from Asperger’s syndrome. On 13th October 2001 he stood in the Square in Bournemouth holding a placard displaying the words: “Stop immorality, Stop homosexuality, Stop lesbianism”.
This sign stirred up the crowd resulting in Mr Hammond being attacked and pushed to the ground with mud and water being poured over him. Mr Hammond was arrested and later convicted for displaying the sign. Very sadly Mr Hammond died shortly afterwards.
Following his conviction his case was appealed by the trustees of his estate to the High Court who held that the magistrates were entitled to find the sign to be insulting because it appeared to relate homosexuality and lesbianism to immorality.
The provision that the words must be threatening, abusive or insulting will not provide much protection if this case is anything to go by. One can easily see how other religions would be insulted by the claim of the Christian faith that the only way to God is through His Son, Jesus Christ.
Religious hatred
Let us look at what is meant by “religious hatred”. The Australian law includes more than just religious hatred. It includes conduct that incites “serious contempt”, or “revulsion” or “severe ridicule”. The proposed law in England and Wales only outlaws incitement to religious hatred. The government claims that this law, therefore, has a narrower scope than Australia.
However, it is important to remember that Daniel’s conduct in his seminar was considered by the Australian judge to be “inciting religious hatred”. He defined hatred as “intense dislike, detestation”.
In this country the same definition of intense dislike or detestation is likely to be used because it is the dictionary definition. There is therefore likely to be no practical difference between the two definitions.
It is worth saying something here about the nature of religious speech. Religious speech is an unusual species of speech in that it seeks to evangelise and reach the very individuals who do not wish to hear the speech. Therefore it has to be in the “public sphere”.
As such, religious speech can be a particularly insulting form of speech because it is specifically directed at individuals who do not want to hear it and they are often told that they are immoral. One person’s religious belief may be rankest error to one man and enlightened discourse to his neighbour; this is the very nature of religious dialogue.
Which is why a religious hatred offence defined in terms of causing “intense dislike or detestation” could very easily outlaw certain types of evangelistic conduct.
Intention
The Australian law does not require any intention on the part of the accused. It doesn’t matter whether you intended to stir up hatred or not, the question is: did you?
The proposed English law is even worse than that.
Not only is your intention irrelevant to the offence, but it doesn’t even matter whether someone was actually incited to hatred or not. The proposed subclause says:
(b) having regard to all the circumstances the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial hatred. [emphasis added]
In other words you can be found guilty of inciting religious hatred even if you didn’t intend to incite hatred and even if noone was incited to hatred. All that matters is that it was likely.
Defences
There is a defence in the Australian law if the defendant can show his conduct was engaged in reasonably and in good faith and was for genuine academic, artistic, religious or scientific purpose; or any purpose that is in the public interest; or in making or publishing a fair and accurate report of any event or matter of public interest.
It is most unfortunate that the judge in Daniel Scot’s case did not accept that Daniel Scot’s conduct was in good faith: a view that many disagree with. However at least the Australian law entitles a person charged with inciting religious hatred to raise a defence of acting reasonably and in good faith and that his conduct was for a genuine religious purpose.
Let us look at the defences for the UK government’s proposed offence:
- (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.
The lack of a defence in both sub clauses of “acting in good faith” is extremely worrying.
Furthermore in subclause 5 a person has to show that he was not aware that his words might be, threatening, abusive or insulting.
But, when it comes to criticising other people’s beliefs or lack of them, most people are aware that their words might be insulting to those who hold the views under scrutiny.
What about the European Convention on Human Rights?
Could such an offence be a breach of the right to freedom of religion (Article 9) and freedom of speech (Article 10)? I think it is unlikely that a general challenge to the new offence of religious incitement as being incompatible with Articles 9 and 10 would succeed although it may be that individual cases might
Burden of proof
The Australian law is a civil law, whereas the proposed English law is a criminal law. The government argues that there will therefore be higher burden of proof under its proposed offence.
However, the higher standard of proof is neutralised somewhat by the use of the words “likely to” be heard and “likely to” stir up hatred.
This brings the standard of proof nearer a civillaw standard and further away from a criminal standard.
The bottom line is: the standard of proof needed to get a conviction under this proposed offence will be lower than for most other criminal offences.
Attorney General
The government says no prosecution will take place without the consent of the Attorney General. In other words, the Attoney General will decide what is, and what is not, fair comment regarding religion: it is a huge responsibility for one man who may not himself have any faith.
In addition, the Attorney General, although acting in a judicial and nonpolitical capacity, could nevertheless be placed under a huge amount of political pressure by some faith groups to allow a particular prosecution.
The concern is that criticism of Christianity will not be treated with the same seriousness as criticism of other faiths.
Chilling effectThe introduction of such an offence will cause many lawabiding citizens to censor themselves for fear of breaking the law. The threat of police investigation can have a disproportionate effect and it can discourage people from coming anywhere near to crossing the criminal line.
I would say at this point that it is vital that we do NOT censor ourselves. I am not saying here tonight that if this law is passed, all criticism of other religions will immediately become illegal.
What I am saying, is that situations such as Daniel’s could easily be caught under the new offence as it is currently drafted.
Despite that fact we must continue to tell people that Jesus Christ is the way, the truth and the life, and no one comes to the Father except by Him: we must fear God and not man.
A stick to beat opponents?
I’d like to tell you about two recent broadcasting complaints.
These complaints demonstrate very well how some groups are likely to use an “incitement to religious hatred” law.
The Muslim Council of Britain recently sent a letter of complaint to OFCOM about the programme “series 24” broadcast by Sky.
The broadcast included a depiction of a Muslim terrorist.
At page 3 the MCB complained that the programme breached the ITC Programme code for transmitting a programme which is intended to stir up racial hatred or is likely to do so (emphasis added) and the part which applies similar considerations to minority religions.
Taking the MCB complaint at face value this would tend to indicate that if the religious hatred proposals were in force MCB would consider that Sky should be prosecuted.
Most of you will have listened to Premier Radio, the Christian radio station based in London. In 2001 the Mysticism and Occultism Federation used five parttime monitors to listen in to the station with the deliberate intention of taking offence and making complaints against it.
They objected to them airing preachers warning of the danger of dabbling in the occult.
Surprisingly, the authority upheld some of their complaints.
As a result of these complaints the renewal of Premier Radio’s broadcasting licence was put in jeopardy although it was in the end renewed.
If an “incitement to religious hatred” offence had been in place, it is fair to assume that the Mysticism and Occultism Federation would have been calling for a criminal prosecution of Premier Christian Radio.
The ‘need’ for this lawMost of the scenarios used by the government to claim a need for a religious hatred law are already covered by existing legislation.
The government says that Clause 122 is aimed at really serious cases and then refers to the attacks on mosques after September 11th.
Of course firebombing a mosque, or a church, or anywhere else, is already illegal.
They refer to posters such as “Muslims out of Britain” claiming they are outside the reach of the law. However in 2002 Mr Norwood, a BNP regional organiser, was found guilty of displaying a religiously aggravated threatening, abusive or insulting sign that was likely to cause harassment, alarm or distress. But the government seems to have forgotten about this offence which at least has the merit of containing a defence that the conduct engaged in was reasonable.
The government says the new law addresses what they call a gap, lacuna, whereby existing race law protects Jews and Sikhs, because they are monoethnic religions, but doesn’t protect multiethnic religions such as Christians and Muslims. However the law is not protecting them from religious incitement. It is protecting them from racial incitement. Their religion just happens to be coextensive with their race. It is not protecting their religion as their religion, but as a symbol of their race.
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Religion, by definition, determines a person’s morals. Race is about a person’s origin and biology. |
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Race and religion are two very different things.
Race is unchangeable.
However people change religion all the time.
Race has no moral component.
Religion, by definition, determines a person’s morals
Race is about a person’s origin and biology.
Religion is about ideas.
All men are created equal. All ideas are not.
The government also claims that this law is needed to catch extreme racists who attack someone’s “religion” as a smoke-screen for attacking someone’s race. However, this was also the justification used in Australia when the state of Victoria introduced its law.
It is ironic, then, that the first person to be charged is a Pakistani who criticised fundamentalist Islam.
This shows that government assurances do not matter once the law is in the hands of the courts. The only concern of the court is what the law says.
Footnotes:
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Appeared in Issue CETF NR 32 2005
"...contend for the faith which was once delivered unto the saints" -- Jude v3
© Copyright 2006 Christian Witness Ministries, except where noted. All rights reserved
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-Last revised-
Monday, October 09, 2006
