Written by Dr Peter Jepson
The recent acquittal of the BNP Leader, Nick Griffin , has resulted in politicians calling for a reform in the law concerning racial hatred. Indeed, it has been widely reported that the Chancellor, Gordon Brown, believes that the words used by Nick Griffin were “offensive” and that a reform of the law is necessary . This article seeks to examine the implications of a change in the law that would make the use of racially offensive words – that stir up racial hatred – a criminal offence.
The words used were “offensive”.
There can be little doubt that Gordon Brown has a strong argument when he says that the words: “The Koran contains verse after verse which says you can take any woman you want as long as it’s not a Muslim woman. If they get a non-Muslim girl and they get her pregnant … the child generally grows up a Muslim ad that’s the way this wicked vicious faith has expanded from a handful of lunatics to sweeping country after country. ” are offensive to Muslims and others.
Offence is not enough to establish a prosecution for racial hatred.
However, a close examination of s.18 of the Public Order Act 1986 reveals that for there to be a criminal offence the words used must be threatening, abusive, and/or insulting and likely to stir up racial hatred. Quite clearly, two juries have concluded that the words used did not amount to a criminal offence under the Act. This is hardly surprising, since the words do not easily fit the requirement that the words used are “threatening, abusive, and/or insulting”. Logically, Gordon Brown may recognise that fact because he simply states that the words of Nick Griffin were “offensive”. On the basis of such logic, it is easy to conclude that Gordon Brown himself can agree with the decision of the jury – because he is not arguing that the words used complied with the requirements for a prosecution under the law. The only surprise therefore is that the Attorney General, who must give approval for such a prosecution, decided that it was in the public interest to bring such a high profile case when the probable outcome was a jury acquittal.
Reforms to the race-hate laws
Given the outcome of the trial and resulting publicity, it is not surprising that Government Ministers are openly talking about a need to reform the law. However, taking up the suggestion of Gordon Brown by changing the pre-requisite requirement for a race-hate prosecution to words that are “offensive” establishes all sorts of problems associated with freedom of expression, with a potential for the opening of criminal law floodgates. For example, the recent debate concerning Muslim women wearing a veil has stirred up all sorts of ill feeling with reports of resulting violence . If a person could simply be prosecuted for stirring up racial hatred through the use of “offensive’ words then a number of Government Ministers – including Jack Straw - could today be facing prosecution. I make that point because it is abundantly clear that many of the comments about the wearing of the veil are potentially offensive and do open up accusations of stirring up racial/religious hatred.
It is also worth thinking about what can be potentially “offensive”. For example, a woman sat on the train next to a man who is reading Page 3 of the Sun Newspaper could easily be offended. Clearly, such a photo image may not be racially offensive – but if we add to the photo a woman wearing just a veil we do have potential for the stirring up of racial/religious hatred.
There is also the issue of freedom of expression under Article 10 of the European Convention of Human Rights. The ECHR case of Handyside v UK  makes clear that “Freedom of expression constitutes one of the essential freedoms of a democratic society” – with it being widely accepted that the state should not interfere with legitimate free speech – i.e. unless there is a threat to public order. Obviously, if the words used are threatening, abusive, and/or insulting, then there can be a justification for interference on public order grounds. However, words that are merely “offensive” generally fall far short of justifying arrest – since they are not threatening, insulting, or abusive, and we can all be easily offended by what may be the most innocuous of remarks.
In conducting detailed research for my PhD on race-hate material, I was offended by the vast majority of the leaflets and publications of the far-right political parties such as the BNP. However, the fact that such material offended me should not in itself justify prosecution. Though, I did conclude that there could be a justification for prosecution if the words were not simply offensive – but are also capable of stirring up racial/religious hatred. To give a classic example to justify such a conclusion: to shout the word “Fire” cannot be a criminal offence. However, to shout it out loud, and mischievously, in a darkened theatre could stir up panic and thereby justify liability for any resulting injuries.
As a consequence of such logic, and in order to protect society from racial disorder, I concluded that that there should be a law to tackle words that are offensive and likely to stir up racial/religious hatred. However, it is essential when taking such a legislative step that a clear and workable defence method/mechanism is established so as to limit interference with freedom of expression. Such a simple defence mechanism could be a counter-message defence - in the form of a “Say No to Racism’ message - attached to potentially racially offensive words and material.
For the state to prosecute those that use racially offensive words would be an interference with freedom of expression. However, while there can be a justification to prosecute if the offensive words go on to stir up racial-hate, it is important to tread carefully before producing legislation. Indeed, it is vital that any new legislation should be carefully reflected upon, with a need for a simple and workable mens rea defence a necessity.
Dr Peter Jepson.
Strode’s College, Egham,
Author of the book ‘Tackling Militant Racism” –
Ashgate Publishing ISBN 0754621634.
In effect this means that a person would be prosecuted if the words are threatening, abusive, and/or insulting and likely to stir up racial hatred. However, they would not be prosecuted if the words used stirred up race-hate but were merely offensive – with the counter-message defence an automatic means of preventing prosecution.