HATE CRIME LEGISLATION - THE LIMITS OF THE LAW

I found this to be quite an interesting read and thought I would share it for the purpose of discussion.

TO THE ORIGINAL ARTICLE

Nick Herbert: Hate Crime - the limits of the law
Nick Herbert MP, Monday, November 3 2008

Thank you for inviting me to talk to you today. I am especially pleased to be speaking to you on a subject - hate crime - which is of such great importance and relevance to our society today.

Next Sunday, 9 November, is Remembrance Sunday. But it is also the 70th anniversary of Kristallnacht, which saw 92 Jews murdered in the Third Reich and tens of thousands shipped to concentration camps.

The Holocaust which those events began, and the regime that devised and directed it, surely remains for us the most horrific example of the harm that human hatred can cause.

It is the triumph of the 21st Century that so much of that hatred has passed, yet its tragedy that so much remains. 70 years later, the scars in Germany and elsewhere are still so deep that the criminal law is deployed to ensure that history is not revised. When the President of Iran grotesquely describes the Holocaust as "a legend", it is not hard to understand the motivation for ensuring that such views can never take root again. Last month the Australian academic Frederick Toben was controversially arrested in this country, pending his extradition to Germany for the crime of Holocaust denial.

Denying the Holocaust is explicitly or implicitly illegal in 13 European countries. Yet such a law has never been accepted here, and in the United States, Holocaust denial is protected by the First Amendment to the Constitution. No issue could be more sensitive, and none could demonstrate better the acute dilemma which is created by the notion of hate crime, that between the desire to protect minorities from harm, and the desire to preserve free speech.

Striking the right balance has preoccupied Parliament since legislation to protect minorities was first conceived. When, two years after I was born, the Race Relations Act of 1965 was brought in, the Conservative Party opposed it, fearing that making racial discrimination a crime would only exacerbate race relations in areas where it was already a problem. But the Party's view changed. In 1986 we ourselves brought forward the Public Order Act which makes it an offence to stir up racial hatred. This began the move towards outlawing words designed to fuel hatred.

We also supported the current Government's plans for aggravated sentences for hate crime which were introduced in the 2003 Criminal Justice Act. But as the sphere of hate crime legislation increases, our concerns about the potential restrictions on free speech have grown. We pushed for the introduction of a free speech clause in the 2006 Racial and Religious Hatred Act. Most recently, on the issue of incitement to gay hatred, we supported the principle of the new offence, a position which demonstrates the compass of the modern Conservative Party and of which I am proud. But we also moved to ensure that free speech concerns were addressed.

Why hate crime legislation is necessary

In amending the Public Order Act 1986, the Government placed incitement to gay hatred on the same footing as that of racial and religious hatred, a change which led to serious concerns about the balance between protection for vulnerable groups and free speech.

Referring to this latest piece of hate crime legislation, the commentator Johann Hari said:

'Hate crimes laws undermine one of the most persuasive arguments of the gay rights movement. At every step of the way, all we have asked for is the same rights enjoyed by straight people: to have sex, to get married, to adopt. The anti-gay lobby has always claimed we are asking for "special rights", and it has always been a lie. But hate crimes laws do, finally, turn us into a special category. It says that stabbing me is worse than stabbing my heterosexual brother.'

Now I accept that, by its very nature, hate crime legislation singles certain groups out for special treatment, but this is not simply for being gay, or black, or disabled, or Muslim, but for being the victim of a particular type of crime. An assault against a gay man is not treated more seriously because the victim is a gay man, but only if the assault was motivated by the fact that the victim was gay. And the legislation does this for two very good reasons: the heightened emotional effect of such crimes on specific individuals, and because of the fear which cane be aroused in the affected communities.

When a young man is attacked in a random act of violence, or mugged for his ipod, or beaten up in a drunken affray outside a pub, this causes a substantial amount of personal trauma and may contribute to a general climate of fear and concern about crime, but it does not instil a particular fear in the wider community in which it takes place.

But when a black man is beaten up by racist thugs, or a Muslim family's house is daubed with Islamophobic graffiti, or a young gay man is kicked to death on Clapham Common by people shouting homophobic insults, the effect on their respective communities is far more pronounced.

Victims of hate crime experience a form of stigmatisation which carries a clear message that they, and their community, are a target, and that they are of marginal value. These crimes also create mental crime maps of harassment for communities. They contribute to creating no-go areas for some people.

Research suggests that that hate crimes can especially hurt individuals. For example, when looking at evidence of psychological and emotional harm caused to victims of crime it is clear that those who were victims of racially motivated crime present increased cases of shock, anxiety and depression when compared to victims of crimes which were not racially motivated.

I do not intend for one moment to diminish the serious impact of the majority of crimes, but rather I want to draw attention to the particular emotional harm which can be caused by hate crime. Victims of racial hate crime also fear more for future victimisation than victims of almost all other forms of crime, except rape.

It is because hate crimes against individuals make victims of whole communities that Parliament took the decision in the 2003 Criminal Justice Act to signal that crimes fuelled by hatred - hatred of something normally outside the victim's control, be it their race, or sexuality - have wider consequences and must be dealt with more harshly than, for example, acquisitive crime. Whilst enhanced penalties had existed, under the 1991 Criminal Justice Act, courts were not making full use of these powers. For example, in 1997-98, only a fifth of cases where racial motivation was a factor were sentences increased on that basis.

But despite the evidence of a harm 'premium' associated with hate crime, there nonetheless remains a body of opinion that questions the very basis of such legislation. Such criticism of hate crime laws is found on both the Left and the Right of the political spectrum.

The conservative or libertarian objection has been ably articulated by commentators like Melanie Phillips, who has argued that hate crime legislation is an 'Orwellian response to prejudice', and that, by attempting to legislate for people's thoughts and 'bad values', the State oversteps the limits of acceptable boundaries.

These are serious points, but on careful reflection I disagree with them. I believe that hate crimes, where the perpetrator's values strike at the core of the victim's identity, are deserving of a response which targets those very values. Moreover, hate crime legislation no more punishes offenders for their values than does the rest of criminal law.

Those who steal, assault, rape or murder - for whatever reason - make value judgements before committing those crimes. These judgements may be subconscious, and will likely be coloured by many other factors, for example, conditioning borne of childhood experience, the influence of addiction, or mental health problems, but there will be a value judgement made nonetheless. Just because the punishment of 'bad values' in hate crime legislation is more explicit does not mean that the rest of criminal law ignores or downplays these judgements. In fact, in almost all crime the major aggravating factor in determining the punishment is motivation; indeed, the presence of a guilty mind is of course an essential component of criminality. The idea that an offender's thoughts are irrelevant to the offence that has been committed simply does not accord with the fundamentals of our criminal law.

Another prominent commentator From the Left who invoked Orwell was Peter Tatchell, who in 2002 attacked the Government's equality agenda by paraphrasing Animal Farm's proclamation that 'some people are more equal than others'. Curiously, just four years earlier, he had unsuccessfully attempted to get anti-gay hate crime legislation introduced in the Crime and Disorder Act 1998 in order to achieve equality with the protection available to other, specifically racial, groups. That such a prominent gay rights activist has changed his mind is a sign of the dilemmas which hate crime laws throw up. Last year Tatchell argued forcefully that the proposed gay hatred legislation was not the right way to tackle prejudice.

Concerns about the use of hate crime legislation to drive equality cannot not be dismissed out of hand. But I think the best response came from Martin Luther King, who said:

'It is true that behaviour cannot be legislated, and legislation cannot make you love me, but legislation can restrain you from lynching me, and I think that is kind of important'

He repeated:

'While it may be true that morality cannot be legislated, behaviour can be regulate. It may be true that the law cannot change the heart but it can restrain the heartless.'


Free speech

But where the opponents of hate crime legislation really have a point is in relation to the potential infringement of freedom of speech. These concerns will be exacerbated if offences aimed at tackling incitement to hatred are not carefully drafted and enforced.

Free speech is a fundamental and historic liberty in Britain, and Parliament has always been rightly cautious about restraining it. It would be very easy to push harder and harder against the door of liberty in the name of protection for sensitive minorities or the easily offended, but the balance must always be struck so that people are free, and feel free, to voice opinions and disagreement which, even if objectionable, are not directly harmful.

During the passage of the recent Criminal Justice and Immigration Bill we grappled with this issue, attempting to strike the right balance between liberty and protection, and it is a balance with which we also struggled when approaching the religious hatred provisions the Government introduced in 2005.

It was my view during the passage of the latest Bill that we had to delineate between what Stonewall described as 'temperate criticism', which must never be illegal, and language which is so inflammatory that it causes harm or triggers violence. And it is important that the criminal justice system, and those who practice in it, understand that this is the balance on which we as legislators have settled.

It is a fair criticism that, whilst Parliament signalled this broad balance, what actually ended up on the Statute Book does not make it fully clear where the delineation lies.
The so-called 'free-speech clause' which was ultimately added to the Bill in the House of Lords by former Home Secretary Lord Waddington says that 'the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred'.

This rather dislikeable provision was, I regret, the best which Parliament could do in the restricted time which the Government made available. It now falls upon Ministers to issue clear guidance to the police and prosecutors on how it is to work in practice. It will then be for the courts to declare the right balance when cases present themselves.

However, the balance which I believe should be struck in deciding whether a hate crime is proved, and which reflects Parliament's will, is - to use the expression in the US Supreme Court decision R.A.V. v. City of St Paul - that 'fighting words' fall on the criminal side of the line, but merely offensive comment should not. Parliament has not introduced an offence of thought crime; nor should we.

The police and the CPS must pay attention to crimes of hate, and I applaud the DPP's speech last month on disability hate crime, where he both highlighted areas where prosecutions are failing and signalled a determination to do better. But the response of our law enforcement agencies must always be proportionate and must target the criminal, not just the immoral or unpleasant. Parliament did not intend that harmless abuse should be subject to criminal sanction. People who set out their views about gay practices in a temperate way might still cause offence, as might those who call Irishmen leprechauns, but such comment is not criminal, and should not attract heavy handed policing, still less prosecution. There have been some notorious examples of clumsy enforcement over the past few years. They have undermined public and media support for hate crime laws, and they have rightly made Parliament more cautious about extending the ambit of the criminal law. They have almost certainly also damaged the interests of the minorities which hate crime laws were meant to protect.

The police and Crown Prosecution Service should focus on those who seek to spread violent hatred. They should not be wasting resources on the politically-correct pursuit of neighbours who engage in tasteless insults. We must guard against a culture that allows criminal justice agencies to pursue easy targets while simultaneously allowing preachers of hate to call for the stoning of gay people.

Legislation alone cannot create a civilised society

But as well as things which legislation should not do, that is, infringe free speech without very good reason, there are also things it cannot do.

Hate crime legislation is designed to tackle the outward expression of values, but it also has a purpose in sending out a signal that certain views and values are anathema to civilised society, and that harmful actions emerging from those views will not be tolerated.

All criminal justice legislation must, by its nature, have some element of deterrence in it, and so when Parliament sets out in Statute that incitement to hatred on the grounds of race, religion or sexuality is to be outlawed, we intend that people sit up and take notice. Whether you are a white supremacist encouraging hatred of blacks, or an Imam preaching hatred of gay people, the message from Parliament is clear.

In fact, it is not only criminal justice legislation which seeks to change behaviour, or send a signal about what society considers acceptable. The legal status of marriage, for example, originally authored by the Established Church, clearly demonstrates that this is behaviour which society endorses and, indeed, actively promotes.

However, it would be wrong for politicians to assume that legislation is the only, or even the primary, means to govern public morality. Law making, however much it may send a signal or set a framework for dealing with events, cannot be the sole driver of social change. Whilst we in Parliament can plant a flag on an issue, declaring our intention, we cannot fundamentally alter people's views. Legislation cannot make windows into men's souls.

Let me give you one striking example. Despite all the laws and much progress over recent years, a poll in the Observer last weekend found that 24 per cent of the public think that gay sex should be made illegal. Eight years after the age of consent was equalised, and three years after civil partnerships were introduced, a quarter of the British public want to reverse these changes and take us back to the situation that existed before the 1967 Sexual Offences Act. Some might say that this argues for more laws. I am not so certain.

Attitudes may be constrained by laws, and sometimes led by them, but ultimately it is only by fostering a shared feeling of responsibility that we can promote a tolerant society where people are considerate towards others and their feelings, and where they exercise judgement in what they say and do. If the furore this week about Russell Brand and Jonathan Ross has any lessons for us at all, it is that consideration and judgement can lead to the avoidance of offence. Their offensive behaviour was not just a failing of management at the BBC. It began with a failing of personal responsibility. I am pleased that one of those involved reclaimed a bit of that personal responsibility by choosing to resign.

So we should not believe that laws are a panacea. We will never outlaw hate, any more than we can outlaw anger. But we can set a careful framework to outlaw hatred which really harms, while protecting fundamental liberties. As the former US Attorney General John Ashcroft said, after famously changing his mind and invoking federal hate crime law, "hatred is the enemy of justice".