Incitement to racial hatred is not an especially commonly prosecuted offence. It is what is known as an inchoate offence (inchoate being one of those extraordinary legal words that is almost never encountered outside the courts), that means that it is the potential effect of the defendant's behaviour on others that is of interest. It has been a specific statutory offence for nearly 30 years since the Public Order Act 1986 which, by virtue of section 19, created an offence triable either way:
19.— Publishing or distributing written material.
(1) A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if—
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.
(2) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.
(3) References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public.
Triable either way means it can be tried in the magistrates' court where the maximum sentence is six months' imprisonment or the Crown Court where the maximum sentence is seven years' imprisonment. When the case first comes before the magistrates' court the magistrate/s will decide whether the maximum sentence that can be imposed there is sufficient in deciding whether to accept or decline jurisdiction. Alternatively the defendant has an unfettered right to choose trial by jury in the Crown Court.
The CPS website contains full guidance on racially aggravated offences part of which I set out below (http://www.cps.gov.uk/legal/p_to_r/racist_and_religious_crime/):
Incitement to racial hatred
This offence is committed when the accused person says or does something which is threatening, abusive or insulting and, by doing so, either intends to stir up racial hatred, or makes it likely that racial hatred will be stirred up. This can include such things as making a speech, displaying a racist poster, publishing written material, performing a play or broadcasting something in the media.
One of the first things we have to prove for this offence is whether the behaviour is threatening, abusive or insulting. These words are given their normal meaning but the courts have ruled that behaviour can be annoying, rude or even offensive without necessarily being insulting.
We also have to consider whether the offender intended to stir up racial hatred or whether racial hatred was likely to result. Hatred is a very strong emotion. Stirring up racial tension, opposition, even hostility may not necessarily be enough to amount to an offence.
Sometimes it may be obvious that a person intends to cause racial hatred, for example, when a person makes a public speech condemning a group of people because of their race and deliberately encouraging others to turn against them and perhaps commit acts of violence. Usually, however, the evidence is not so clear-cut and we may have to rely upon people's actions in order to infer their intention.
If we are not able to prove that someone intended to stir up racial hatred, we have to show that, in all the circumstances, hatred was likely to be stirred up. 'Likely' does not mean that racial hatred was simply possible. We therefore have to examine the context of any behaviour very carefully, in particular the likely audience, as this will be highly relevant.
These offences appear in the Public Order Act 1986, which is generally designed to prevent acts of violence, disorder, harm or threats. Although it will often be present, the risk of commission of a criminal act of this nature is not essential to prove the commission of an offence of stirring up hatred on the grounds of race.
When people hate others because of race, such hatred may become manifest in the commission of crimes motivated by hate, or in abuse, discrimination or prejudice. Such reactions will vary from person to person, but all hatred has a detrimental effect on both individual victims and society, and this is a relevant factor to take into account when considering whether a prosecution is appropriate.
It is essential in a free, democratic and tolerant society that people are able robustly to exchange views, even when these may cause offence. However, we have to balance the rights of the individual to freedom of expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.
As these decisions involve questions of public policy, a specialist team of lawyers based at CPS Headquarters reviews the police file in all such cases and decides whether there is enough evidence. In addition, a case of incitement to racial hatred cannot be brought without the permission of the Attorney General, who is the senior Law Officer for the Crown.
The law only covers acts that are intended, or are likely to stir up, racial hatred. Whilst the definition of what constitutes "race" or "racial" is wide, it is clear that it does not cover "religious" hatred.
Incitement to Racial Hatred - Part III Public Order Act 1986
Article 10 of the European Convention on Human Rights [ECHR] allows freedom of expression save in certain limited circumstances. These circumstances include the offences contained within Part III of the Public Order Act 1986 (ss 18-23).
Additionally, Article 17 of the Convention states: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." Relevant case law includes Glimmerveen and Hagenbeek v Netherlands 18 DR [1987] and Kuhnen v Germany 56 DR [1988].
For an offence to be committed under any of these sections of the Public Order Act 1986, there has to be one of the acts described therein: it has to be "threatening, abusive or insulting", and it has to be intended to or likely in all the circumstances to stir up racial hatred.
The words "threatening, abusive or insulting" are to be given their ordinary meaning and case law dealing with other provisions of the Public Order Act 1986 can assist with this.
Racial hatred is defined in section 17 of the Act. The prosecution must prove that hatred was intended to be stirred up or that it was likely to be stirred up. Likely does not mean that racial hatred was simply possible. We therefore have to examine the context of any behaviour very carefully, in particular the likely audience, as this will be highly relevant.
These offences appear in the Public Order Act 1986, which is generally designed to prevent acts of violence, disorder, harm or threats. Although it will often be present, the risk of commission of a criminal act of this nature is not essential to prove the commission of an offence of stirring up hatred on the grounds of race.
When people hate others because of race, such hatred may become manifest in the commission of crimes motivated by hate, or in abuse, discrimination or prejudice. Such reactions will vary from person to person, but all hatred has a detrimental effect on both individual victims and society, and this is a relevant factor to take into account when considering whether a prosecution is appropriate.
It is essential in a free, democratic and tolerant society that people are able to robustly exchange views, even when these may cause offence. However, we have to balance the rights of the individual to freedom of expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.
All such allegations are by their very nature highly sensitive. For that reason, and to ensure a consistent approach, any allegation under this legislation, must be referred by the relevant CPS Area to the Special Crime and Counter Terrorism Division (SCCTD). Referral means the submission of a report which is sufficient to enable SCCTD and the Area to have an informed discussion about where the responsibility for the case should lie.
When an Area becomes aware of such a case, it should be referred to SCCTD within seven days. If it is decided that the case should be prosecuted as an offence of incitement to racial hatred, SCCTD will take over the conduct of the case from the Area. If SCCTD considers that it is clearly a case where incitement to racial hatred does not apply, the case should be returned to the Area within seven days of that decision being made.
If SCCTD decides to deal with a case, the file is held there and dealt with there. Thereafter, cases can only proceed with the consent of the Attorney General.
The law only covers acts that are intended, or are likely, to stir up racial hatred. Whilst the definition of what constitutes "race" or "racial" is wide, it is clear that it does not cover "religious" hatred.
One of the more recent leading cases on the section is R v Sheppard [2010] 1 Cr. App. R. 26 which concerned the prosecution of two men for publishing racially inflammatory material in which material casting doubt on the holocaust and containing abusive racial remarks had been published on the internet.
