Sunday, December 10, 2006

Hate Laws Under Scrutiny

This article was published as the lead comment piece in the New Law Journal on 8 December 2006.

The recent conviction of Danish embassy protestor Mizanur Rahman followed by the acquittal of BNP leader Nick Griffin and his associate have raised important questions as to the effectiveness of the race hate laws in this country and led to politicians such as Gordon Brown to call for a review of current legislation. The problem is not a new one and reflects the inherent tension between the conflicting rights of freedom of speech and freedom from acts of violence and hostility. Chomsky neatly summarised the difficulty when he said, “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” The real problem that these cases raise is whether the laws as they currently stand are working for or against those they were designed to protect.

The issue finds its roots in the common law crime of sedition and as long ago as 1732 a newspaper was found guilty of this having published scurrilous allegations against Portugese Jewish immigrants resulting in violence against Jews. The article was found “to raise tumults and disorders among the people, and inflame them with a spirit of universal barbarity against a whole body of men, as if guilty of crimes scarce practicable, and totally incredible”. The current law was originally inspired by the calls for stronger legislation which followed the acquittal of a newspaper owner James Caunt in 1947 over his publication of an anti-Semitic editorial on the basis that the article was not intended to promote violence.

That case highlighted one of the major problems with the race hate laws which is that the successful cases often appear to be disproportionately against those they were ostensibly designed to protect. For example, the first person to be charged under the Race Relations Act in 1967 was Michael Abdul Malik (Michael X), the leader of the Black Power movement, for stirring up racial hatred against white people. In that same year, four members of the Universal Coloured People's Association were also successfully prosecuted. This presented a stark contrast to the acquittal the following year of four members of the Racial Preservation Society after they claimed that they were not intending to stir up racial hatred, but were educating the people about the problems of coloured immigration and attacking politicians for their inaction. The acquittal was despite the fact that in the course of the trial they espoused theories on the purity of races, genetic inequality of the races and the impact of immigration upon the crime rate.

Another problem with these cases is the catch 22 situation in which prosecutors find themselves. A successful prosecution potentially allows a bigot to claim to be a martyr of the civil liberties movement. On the other hand, a finding of innocence results in the accused claiming that the court had in some way given respectability and legitimacy to their views. Indeed, those acquitted in 1968 even reprinted a 'Souvenir edition' of the offending article.

The legal difficulties of the 1960s provide a powerful analogy with the two cases which have been decided this month. What the BNP case highlights in particular is the need to take account of such factors before making a decision to proceed with a prosecution. In particular, prosecutors should be extremely careful in ensuring the strength of the case before giving it the oxygen of publicity. Many may well point out that the failure to secure a prosecution the first time around should have sounded a warning bell that there might be difficulties ahead.

The government’s reaction to this was encapsulated by Mr Brown suggesting that the race hate laws need to be reviewed. Perhaps Mr Brown had been pre-occupied with the effects of the interest rate rise at the time. Whatever the reason, he appears to have overlooked the fact that the government did just this when they passed the Racial and Religious Hatred Act in February of this year and introduced new provisions to cover the stirring up of religious hatred. What is inexplicable is why the government has not yet brought this into effect. Indeed, though next February has been hinted at in the press, not even this has been confirmed.However, even when the new law comes in, it is to be hoped that the lessons of the past are borne in mind. In particular, it should not be forgotten that a major justification for the new provisions was the ending of the loophole that had left Muslims as a group unprotected by the race hate laws since, unlike Jews and Sikhs, their community did not have any racial foundations. Whilst one would not want to discourage the authorities from invoking the incitement laws for those preaching violence, it is to be hoped that the authorities are sensitive enough not to end up using the new law religious hatred laws against the very community it was designed to protect.

1 comment:

Anonymous said...

I've run into a web article that hits between the eyes - or at least between the i's in "israelites"! Just bring up "National Journal" and look for "The Earliest 'Hate' Criminals." (This one is for mature audiences only!) M.E.