Katie Hopkins: “22 dead- number rising. Schofield. Don’t you even dare. Do not be part of the problem. We need a final solution. #Manchester”

The recent comments made by Katie Hopkins have caused a great deal of controversy. Hopkins’ use of the phrase ‘final solution’ was deemed merely insensitive by some while others saw it as a deliberate use of a Nazi euphemism intended to stir up racial hatred.

Regardless of your opinion on Hopkins’ motive, the conversation is part of a larger debate surrounding hate crime and free speech. Legislation drafted to combat hate crime has had to develop alongside a rapidly changing political and social landscape. Law makers are expected to create legislation that criminalises those that incite hatred whilst protecting civil liberties like freedom of speech. This has been difficult. On one view, current domestic legislation has been harshly drafted and undermines fundamental freedoms. Whilst earlier legislation which was criticised for being weak, recent laws have gone too far in criminalising expression.

The Race Relations Act 1965 (‘RRA’) was the United Kingdom’s first attempt to address hate crime. The Act prohibited discrimination on the grounds of a person’s colour, race, ethnic or national origins. The legislation was introduced in response to the hostility faced by West Indian migrants into the UK and a series of racially motivated riots in 1958. However, he RRA was heavy condemned as ‘weak legislation[1]’ (among other failings it only outlawed discrimination in a public place).

Hate crime legislation was strengthened in the mid-Eighties as a result of heightened racial tension across Britain. Events such as The Broadwater Farm and Handsworth Riots contributed to the passing of the Public Order Act 1986 (‘POA’). Sections 17 of the Public Order Act 1986 defines racial hatred as, ‘hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.’ Sections 18- 23 criminalise acts likely to stir up such hatred.

Broadly speaking, the POA was appropriate for its time and focused on issues of race rather than religion or belief which were less of a pressing issue. However, this emphasis was detrimental to those subject to religious hatred and religion or belief were not recognised as matters of concern until the introduction of the Crime and Disorder Act 1998.

The CDA incorporated a religiously aggravated element alongside to existing offences in an attempt to give greater protect to all subject to racial abuse. To successfully prosecute, the CPS have to prove a basic offence had been committed followed by racial or religious aggravation. Section 28 defined an offence to be racially and religiously aggravated if; ‘the offender demonstrates to the victim hostility based on the victim’s membership (or presumed membership) of a racial or religious group, or the offence is motivated wholly or partly by hostility towards members of a racial or religious group based on their membership (or presumed membership) of that group.’

The Act can be criticised because it fails to give a strong and meaningful definition of ‘hostility’. The problem with this definition is that the meaning is open to dangerously wide interpretation. The Act does not take the opportunity to properly differentiate between behaviour demonstrating ‘hostility’ (which is to be criminalised) and acts which are merely ‘distasteful’. It is easy to envisage a scenario where the dominant political discourse could place pressure on the government to criminalise political groups merely because their ideologies are unsavory. It could further be argued that a broad definition of hostility would widen the scope of criminal behaviour too far, attract unnecessary prosecution and erode the principle of free speech. This can be demonstrated in the case of R v McFarlane[2] where the understanding of hostility was wrongly applied.

The defendant and another man, who was black, had a disagreement. McFarlane called the man a “jungle bunny”, a “black bastard” and a “wog”. The judge found that while such language had been racial in nature, it had not been motivated by hostility based on the victim’s membership of a racial group but rather had been directed toward the victim’s conduct in the disagreement. The DPP appealed the decision and the Court of Appeal held that it was immaterial for the purposes of s.28(1)(a) of the 1998 Act that an individual had additional reasons, such as being angry at certain conduct, for using racial words. This case shows the dangerously wide ambit of the CDA and the consequences of vague legal definitions.

Whilst arguably too harsh, the CDA’s flaw pale into insignificance when compared to later legislation.When reviewing hate crime legislation post CDA, we see an increase in provisions that infringements civil liberties being incorporated into legislation. The Anti-terrorism Crime and Security Act 2001 extends religiously aggravated elements to basic offences but infringes civil liberties by enabling the Home Secretary to indefinitely detain a person without trial and allows the police to access individual’s private documentation from public bodies. Such detention may well be on the basis of a suspect’s political views, expression or even the material they access online.

The Racial and Religious Hatred Act 2006, which created new offences of stirring up hatred against persons on religious grounds was considered unnecessary and overly restrictive. Comedian Rowan Atkinson claimed the bill would restrict the right to make light of religious sensibilities. Atkinson further states that, “To criticise a person for their race is manifestly irrational and ridiculous but to criticise their religion, that is a right. That is a freedom.”[3]

The early architects of hate crime legislation recognised that a freedom of expression is the fabric that hold together democracy and interferences with it should be minimal and cautious. Whilst being over cautious resulted in early legislation being weak the CDA struck the healthies balance between protecting and criminalising, whilst newer has added little more to protect victims at a great expense to civil liberties. It is to be regretted that more recent law-makers have been less protective of the fundamental right of free expression.