Court affirms limits of hate speech laws

The use of the criminal law to police the expression of political views has become increasingly common in this age of discontent. The right of freedom of expression is jealously guarded by those on all sides of the political spectrum and enshrined in Article 10 of the European Convention on Human Rights. But the right is not absolute so where is the boundary drawn?

Mr Justice Bennathan, sitting as a judge in the Crown Court, together with two lay justices, gave judgment in R v Coskun an appeal against conviction for a racially aggravated Public Order Act offence. Crown Court appeals take place with a rehearing of the evidence so in effect de novo. The offence in question was threatening behaviour contrary to section 5 of that Act. The Crime and Disorder Act 1998 provides for certain crimes to be ‘racially/religiously aggravated’ if the offence is committed based on hostility on racial or religious grounds. It is not a free-standing offence to be racist but it aggravates certain offences including threatening behaviour. 

The appellant in this case, a Turkish asylum seeker, had burned a copy of the Koran outside the Turkish Consulate. Shortly after having committed the act, which had not generated an enormous amount of attention, he was attacked by a man wielding a knife who kicked him and spat at him. He was also kicked by another man on a bicycle. He was arrested and so was his assailant. 

In a reasoned judgment, Bennathan J reviewed the authorities and noted that there is no offence of blasphemy in English law. The right of freedom of expression is policed only by the criminal law which will intervene in circumstances where an individual needs protection. It is here effectively that the line is drawn in terms of the extent to which a person can act in furtherance of his right to express himself. The law protects members of the public from becoming harassed, alarmed or distressed by conduct.

The alleged criminal conduct in this case was that in section 5 Public Order Act 1986 namely the use of threatening, abusive or disorderly words or behaviour. The offence, only if proven, was aggravated by the fact that it was directed at those who follow the Islamic faith who may be caused harassment, alarm or distress. 

The question for the Court was whether the act of the burning of the Koran outside the Turkish Consulate was threatening, abusive or disorderly and whether it was likely to cause harassment, alarm and distress. The Court ruled that it was not and that consequently no offence had been committed. 

It gave seven reasons for its decision.

• The conduct was not directed at any person.

• Consulate buildings are secure and have high security and thus harassment and alarm are much less likely (by contrast for example with a protest in a residential street)

• The Appellant was the only person involved and thus less likely to be intimidating

• It was daylight and any observer could see that the Appellant was empty handed

• The protest was of a short duration and thus less likely to cause distress

• There was no sense on the evidence that any of those who observed the protest were alarmed by it

• The criminal reaction of the Appellant’s assailant should not act to criminalise the behaviour of the Appellant.

This decision was followed by an announcement that the Metropolitan Police will not investigate allegations of ‘hate’ where there is no criminality after the arrest of the comedian Graham Linehan. The clear conclusion is that any court faced with a determination of whether words or behaviour is threatening, abusive or insulting must conduct a fact specific analysis of what took place. Blasphemous or even racist words or behaviour in and of itself does not attract the sanction of the criminal law unless it has a definitive negative impact on its audience. In reaching such a determination the Court must consider the specific environment into which the words or behaviour were directed. A larger scale demonstration at a different time of say in front of audience, for example, may have yielded a different verdict.