Carys Moseley comments on the effects of extending hate crime laws to people’s homes.
This Wednesday, it was reported that the Law Commission has decided not to recommend extending hate crime laws into people’s homes. The Commission’s consultation on reforming hate crime law in England and Wales closed on Christmas Eve last year. It received around 2,500 responses, which suggests a high level of public concern about the proposals. This comes shortly after the Home Secretary, Priti Patel, was reported to want to repeal laws criminalising hate speech in England and Wales.
Offence of stirring up hatred
Currently the Public Order Act 1986 criminalises words or behaviour used to stir up hatred on grounds of race, religion and sexual orientation. However, there is an exemption for words or behaviour used in a dwelling, i.e. in people’s homes. The Law Commission had proposed that this exemption should be removed.
The chairman of the Law Commission Sir Nicholas Green sent a letter on this matter to Lord Pearson and Lord Vinson, which was then sent to the press and which Christian Concern has also seen. Justice Green assured them that the Law Commission did not intend to change the law to allow prosecution for words used in the home “for the mere giving of offence.”
No change to offence test level
Sir Nicholas went on to emphasise that the Law Commission would not recommend any change to the prosecution test for whether the offence catches words, behaviour or material. The current test weighs up whether words, behaviour or material are likely to stir up hatred on grounds of race, religion or sexual orientation.
Sir Nicholas tried to alleviate concerns by stating that such offences aren’t often prosecuted, and then only in the most extreme instances. He listed particular examples of successful prosecutions.
Race, religion and sexual orientation
What neither the press nor Sir Nicholas Green are saying explicitly here is that the prosecution test differs according to whether someone is accused of stirring up hatred on racial grounds as opposed to religion or sexual orientation. Stirring up hatred on racial grounds is covered in sections 17-23 of the Public Order Act. Stirring up hatred on grounds of religion or sexual orientation is covered in sections 29A-29G of the Public Order Act.
Currently, the prosecution has to prove that someone ‘intended to’ stir up hatred on grounds of religion or sexual orientation. In addition, only words, behaviour or material deemed ‘threatening’ can be prosecuted. Words, behaviour or material deemed ‘insulting’ or ‘abusive’ are not illegal. In its consultation the Law Commission proposed getting rid of this test. Instead it proposed that the prosecution would no longer need to prove intent to stir up hatred. It would be enough to show that the words, behaviour or material in question was ‘likely to stir up hatred’. This would be the case as long as the person ‘ought to have known’ that these would ‘stir up hatred’.
Our warning about removing the dwelling defence
Christian Concern responded to the Law Commission consultation last December. In our response we gave a clear warning about the likely effect of removing the so-called dwelling defence as follows:
“Prosecuting threatening, abusive or insulting words which cause a person harassment, alarm or distress in a dwelling would clearly affect the following:
1) Parents reprimanding children
2) It would cause a spike in false allegations of abuse within households
3) It would result in prosecution on grounds of family feuds and could fuel them
4) It could be used against house groups and house churches
5) It could be used against deliverance ministry and exorcism carried out in private homes.”
Clearly this is an indicative and not an exhaustive list of potential problems. Given that the letter did not actually provide reassurance on free speech on sexual orientation or religion, there are further concerns.
Criminalising ‘conversion therapy’ by the back door?
Sir Nicholas Green’s letter to Lord Pearson and Lord Vinson does little to alleviate our concern that extending hate crime laws could be used to enact a ‘conversion therapy’ ban by the back door. LGBT activists have frequently falsely accused people working in ex-gay ministry and counselling of ‘hatred’. It is obvious that they would jump at the chance to report such Christian work as ‘likely to stir up hatred on grounds of sexual orientation’.
Currently the Scottish Hate Crime Bill is the target of attempts at sneaking in amendments targeting laws that LGBT activists claim ‘allow conversion therapy’. We must remain vigilant in case any similar amendments are proposed for England and Wales.
Criticism of Islam at risk
Likewise changing the prosecution test for stirring up hatred on religious grounds would seriously damage free speech. It would become possible to bring a prosecution against an individual or organisation criticising Islam due to being ‘likely to stir up hatred’ on religious grounds.
It should be obvious that Christian outreach to Muslims could be treated as ‘likely to stir up hatred’. If the prosecution test is changed, we could even end up with a situation where the anti-Prevent lobby take the government to court on the grounds that the Prevent Strategy is ‘likely to stir up’ Islamophobia.
Inconsistency of the law
Sir Nicholas relayed the Law Commission’s tentative view that some private conversations should be subjected to criminal investigation. The examples given were the confession of a serious crime or an individual conspiring with other people to commit a serious crime. Currently speech that stirs up hatred can only be treated as an offence if it is possible to hear it from outside a private dwelling.
The letter also drew attention to the inconsistency of the current dwelling exemption. As an example, it protects speech between two outsiders in someone else’s home, but not between two people from the same family in their car. The Law Commission says it is now looking at ways of removing the inconsistency in the law, whilst balancing respect for freedom of expression and respect for private and family life.
Hate Crime review due later this year
The Law Commission is due to send a review of Hate Crime law to government ministers later this year. Presumably, this review will have to take into consideration the considerable number of responses to the consultation. Vigilance is needed as publication of the review may well coincide with government plans for regulating so-called ‘online harms’.
