Expert Legal Adviser MILTON FIRMAN asks: What is racist and religious crime?

Oct. 20, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

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Racist and religious crime is particularly hurtful to victims as they are being targeted solely because of their personal identity, their actual or perceived racial or ethnic origin or their actual or perceived belief or faith. Black and minority ethnic victims can also be targeted because they belong to other minority groups and may experience duplicitous discrimination.

The impact on victims is different for each individual, but there are common problems that are experienced by victims of racist of religiously aggravated crime. They can feel extremely isolated or fearful of going out or even staying at home. They may become withdrawn, and suspicious of organisations or strangers. Their mental and physical health may suffer in a variety of ways

Parliament has passed legislation aimed at outlawing crime where the offender is motivated by hostility or hatred towards the victim's race or religious beliefs (actual or perceived).

Crime and Disorder Act 1998 (as amended)

This Act created a number of specific offences of racially aggravated crime, based on offences of wounding, assault, damage, harassment and threatening/abusive behaviour.

The Act was amended by the Anti-terrorism Crime and Security Act 2001, which came into effect on 14 December 2001. It extended the scope of the Crime and Disorder Act by creating new specific religiously aggravated offences and applying the same sentencing duty to all other offences where there is evidence of religious aggravation.

The legislation provides definitions of racial groups and religious groups in the following terms:

A racial group means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins. Gypsies and some travellers, refugees or asylum seekers or others from less visible minorities would be included within this definition. There has been a legal ruling that Jews and Sikhs are included in the definition of a racial group (Mandla v Dowell-Lee [1983] 2 AC 548).

A religious group means a group of persons defined by reference to religious belief or lack of religious belief. This includes Muslims, Hindus and Christians, and different sects within a religion. It also includes people who do not hold any religious beliefs at all.

To prove that an offence is racially or religiously aggravated, the prosecution must prove the "basic" offence followed by racial or religious aggravation, as defined in section 28 Crime and Disorder Act 1998. An offence will be racially or religiously aggravated if:

a) at the time of the offence (or shortly before or after), the offender demonstrates to the victim hostility based on the victim's membership (or presumed membership) of a racial or religious group, or

b) 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 ordinary dictionary definition of hostile includes simply being "unfriendly". Proving this limb of the offence requires evidence of words or actions which show hostility toward the victim. However, this hostility may be totally unconnected with the "basic" offence which may have been committed for other, non-racially or religiously motivated reasons.

The following cases illustrate the approach that the courts have adopted when interpreting the law.

In DPP v McFarlane (2002) EWHC 485, Rose LJ found that once the "basic" offence was proved (in this case a public order offence) and that racist language was used that was hostile or threatening to the victim, it made no difference that the defendant may have had an additional reason for using the language. The test under section 28(1)(a) was satisfied.

In R v Rogers (2007) 2 W.L.R. 280, the defendant was involved in an altercation with three young Spanish women during the course of which he called them bloody foreigners and told them to go back to your own country. The House of Lords, in upholding the defendants conviction, held that the definition of a racial group clearly went beyond groups defined by their colour, race, or ethnic origin. It encompassed both nationality (including citizenship) and national origins. Furthermore the victim might be presumed by the offender to be a member of the hated group, even if s/he was not. Also, the fact that the offenders hostility was based on other factors as well as racism or xenophobia was irrelevant.

The offences under the Crime and Disorder Act 1998 carry higher maximum penalties than the basic offence equivalents.

In addition to the specific offences created by the Crime and Disorder Act 1998, the law imposes a general duty on criminal courts, when sentencing an offender, to treat more seriously any offence which can be shown to be racially or religiously aggravated (Section 145 Criminal Justice Act 2003)

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).

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.

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.
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.

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.

The offence of stirring up religious hatred is committed if a person uses threatening words or behaviour, or displays any written material, which is threatening, if he intends thereby to stir up religious hatred. Threatening is the operative word.  Possession, publication or distribution of inflammatory material is also an offence. The offence can be committed in a public or private place, but not within a dwelling, unless the offending words and behaviour were heard outside the dwelling, and were intended to be heard. The defendant must intend to stir up religious hatred; recklessness is not enough.
So using abusive or insulting behaviour intended to stir up religious hatred does not constitute an offence, nor does using threatening words likely to stir up religious hatred.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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