Raising the bar for hatred prosecution

Analysis
By Jon Silverman
Legal affairs analyst

The government's two defeats in the Commons mean that the Racial and Religious Hatred Bill will go for royal assent in the version amended substantially by the Lords last autumn.

The bill has attracted criticism from religious groups

Only threatening - as distinct from abusive or insulting - words or behaviour may give rise to criminal misconduct.

The burden is placed explicitly on the prosecution to prove a criminal intent rather than "recklessness", as the government had proposed. And safeguards for free expression will be on the face of the bill.

The government originally introduced a version of this measure in 2001. The then Home Secretary, David Blunkett, sought to incorporate it into an anti-terrorism package drafted in the wake of 9/11.

It was dropped after opposition in the Lords. The timing was significant.

Race riots

Riots in Bradford and Oldham had exposed a vein of anti-Muslim sentiment.

Supporting the bill, the Association of Chief Police Officers (Acpo) argued that the extreme right used the term Muslim as a proxy for inciting race hatred and that robust legislation might have prevented the riots.

Jews and Sikhs are protected from racial hatred by the Public Order Act

Acpo also told a Lords select committee on religious offences that the police were unable to respond under existing legislation to certain acts of incitement.

Although the bill has provoked an acrimonious debate about free expression, few commentators have noted how seldom it is likely to be used.

The best guide to that is the Public Order Act 1986, which protects Jews and Sikhs against race hatred but which, in 20 years, has been applied infrequently.

Last summer, figures given by the Home Office minister, Paul Goggins, showed that 67 people had been tried under the act and 44 convicted.

'High threshold'

Lawyer James Libson, who acts for the Board of Deputies of British Jews, told a conference: "I have passed on many complaints to the attorney general but they are rarely acted upon. The threshold is pretty high."

The effect of the Lords amendments means that the bar for a prosecution under the racial and religious hatred law will be even higher.

The bitter row over the bill has focused attention on the difficulty of penalising by law the expression of opinion or belief.

The government faces a similar problem with its attempt to make the glorification of terrorism a criminal offence - and familiar hostility from the upper house.