Select Committee on Religious Offences in England and Wales First Report

CHAPTER 6: Incitement

69.  Section 2 of the Religious Offences Bill proposed the creation of a new criminal offence of incitement to religious hatred. This was to be achieved by amending Part III of the Public Order Act so as to extend the offence of incitement to racial hatred to include incitement to religious hatred. This proposal replicated a clause in the Anti-terrorism, Crime and Security Bill 2001, which was subsequently dropped. One of the objectives was to extend the protection provided to mono-ethnic religions under race relations legislation (for example Jews and Sikhs) to multi-ethnic religions like Christianity, Islam and Hinduism. The main argument for rejecting the original proposal was that it bore little or no relation to anti-terrorism legislation[69], and that there should be separate legislation aimed at protecting religious beliefs and their expression following a proper public debate and a careful weighing of the options[70].

70.  Incitement is, in origin, a common law offence. However, it "is not widely used by prosecutors in England".[71] It is an offence to incite another person to commit a criminal offence even though that other offence has not been committed or even attempted[72]. At common law, for there to be incitement there has to be both some form of communication with a person whom it is intended to incite and, in that communication, some attempt to persuade or encourage that person to commit a criminal offence[73]. However, for there to be incitement at common law it is not necessary to prove that the person who it was attempted to incite was in fact affected by the attempt, and incitement may exist even though the attempt was unsuccessful[74]. Moreover the persuasion inherent in the incitement can be implicit[75]. The incitement does not have to be directed towards a specified person or group of persons but, rather, may be general[76]. To be guilty of incitement one must normally intend that the offence that is being incited will be committed, but sometimes recklessness as to whether or not the offence is committed will suffice.

71.  Incitement has on occasion been used in instances where there has been an attempt to stir up hatred of a particular person or groups of persons. However in such instances the hatred incited has itself taken the form of a criminal offence. Thus in R v Most, the accused (Most) published in London in his German language newspaper, an article, "Die Freiheit". In that article he was found to have incited his readership "to the murder of the Emperor Alexander, or the Emperor William, or, in the alternative, the crowned and uncrowned heads…from Constantinople to Washington" (p 252).

72.  From time to time, specific forms of incitement have been made statutory criminal offences, often as a reaction to the perception that a novel social mischief has arisen or that an existing mischief has become particularly damaging to society. Thus, for example, following the mutinies at Spithead and Nore, which resulted from harsh discipline and low pay, it was made an offence, under the Incitement to Mutiny Act 1797, to seduce any member of the armed forces "from his duty and allegiance to His Majesty" or to incite them to commit an act of mutiny. During the first prosecution under the Act counsel described this statute as being "a temporary statute, and a measure of extraordinary vigour".[77] The history of this and other similar statutes demonstrates some of the problems inherent in the creation of new statutory forms of incitement.

73.  Despite the fact that the 1797 Act was said to be temporary in nature it remains in being to the present day. Prosecutions have been relatively rare and the higher courts have never had to consider the precise interpretation of the statute. Nevertheless, the use that has been made of the statute has frequently proved to be controversial and has often been accompanied by allegations of political partiality both in relation to who has and who has not been prosecuted under the Act. Thus, for example, in 1912 five people were prosecuted after they had been involved in the publication of "An Open Letter to British Soldiers" in "The Syndicalist". The letter, published at a time when there was considerable industrial conflict, encouraged soldiers not to kill civilians, reminding those soldiers of their working-class roots. In the House of Commons in July 1912 Sir J D Rees commented that if "there be any crime which is a great crime, a crime against society, against the Constitution, against the country, against every British subject, it is the crime of urging troops not to shoot". As a consequence of the public outcry that followed the convictions of the five who had been associated with "The Syndicalist", the Home Secretary exercised the prerogative of mercy and reduced the sentences on all those convicted. There was, nevertheless, a persistent perception that prosecution under the Act was as much a political as a legal matter.

74.  In the following year Bonar Law indicated his support for Ulster Protestants' opposition to Home Rule and suggested that the Army should, if necessary, refuse to obey orders if ordered to quell this opposition. Neither Bonar Law nor Sir Edward Carson, who expressed similar sentiments, was prosecuted under the 1797 Act.

75.  In 1931 a mutiny in Invergordon resulted from cuts in the pay to members of the Royal Navy. Prosecutions under the 1797 Act followed. That Act had made it an offence to seduce a serviceman from his "duty and allegiance to His Majesty". The 1934 Incitement to Disaffection Act made it an offence to seduce a servicemen from his "duty or his allegiance", thus expanding the ambit of the law. The Act was widely criticized as being an unnecessary restriction on freedom of speech. This perception remains to this day, Bradley and Ewing noting for example that the Act "does restrain certain forms of political propaganda".[78] The 1934 Act eventually produced the only occasion on which the higher courts have had to pronounce on this form of legislation[79]. In 1973 Pat Arrowsmith, a pacifist campaigner, and others distributed leaflets to the married quarters of soldiers living in the Warminister area. The leaflets, which were put out in the context of British involvement in Northern Ireland, contained quotations from soldiers who had deserted and gave advice about how to desert to either Sweden or the Republic of Ireland. The leaflets also contained information on Army regulations regarding discharge and argued that soldiers should refuse to serve in Northern Ireland. In judgement, the court described the leaflet as being "not only mischievous but…wicked" (p 684). Ms. Arrowsmith was convicted and the Court of Appeal subsequently upheld the conviction although it reduced her sentence because the Director of Public Prosecutions had on a previous occasion refused to prosecute her for distributing the same literature, arguably leading her to believe that she would never be prosecuted (p 691). However, an attempt to prosecute 14 pacifists who had distributed similar leaflets failed when the jury, seemingly on the basis of a perverse verdict, refused to convict.[80] It is necessary to obtain the consent of the Director of Public Prosecutions before there can be a prosecution under the 1934 Act—this necessity being specifically introduced because of the "uncertain scope of the Act" which had created an offence of "a political or possibly political flavour".[81] Nevertheless, some have seen prosecutions under the 1934 Act, as in the case of the 1797 Act (which does not have this requirement), as being motivated as much by political considerations as because of legal reasons. Thus, for example, Roberston has commented that:

"[the] most powerful incitement to disaffection was made in the 1987 election campaign by the Prime Minister, Mrs Thatcher, who announced that service chiefs should consider resigning in protest if the Labour party were elected and sought to implement its non-nuclear policy."[82]

76.  Some but probably not all of the behaviour above would, irrespective of the provisions of the 1797 and 1934 Acts, be caught by more general public order legislation. In 1968, people handing out anti-Vietnam leaflets, which amongst other things called for American soldiers to desert, were convicted of conduct likely to cause a breach of the peace contrary to the then s 5(b) of the Public Order Act 1936[83].

77.  Incitement to racial hatred was first made a criminal offence under the Race Relations Act 1965. The relevant legislation is now found in Part III of the Public Order Act 1986. The legislation extends beyond the realm of that which ordinarily would be called public in that it is an offence, under sections 18(1) and 18(2), to use threatening, abusive or insulting words or behaviour or display written material which is threatening, abusive or insulting and which is intended to or is likely to stir up racial hatred in private premises as much as in public. The only exception to this is that, under section 18(2), no offence is committed if the words or behaviour are used or the written material is displayed in a dwelling and are not seen or heard by others than those in the dwelling. Under section 27(1), proceedings for a prosecution can only be instituted with the consent of the Attorney-General. Prosecutions under the Act, as in the case of incitement at common law and the statutory forms of incitement in the 1797 and 1934 Acts, have been relatively rare. Unsuccessful prosecutions can be counter-productive:

"When members of the Racial Preservation Society were acquitted for publishing a newspaper claimed to be 'innocently informative' rather than 'intentionally inflammatory' they derived benefit from the publicity surrounding the trial and reissued the edition, overprinted 'Souvenir Edition—the paper the Government tried to suppress".[84]

78.  As a consequence, it has been argued that laws against inciting racial hatred create more expectations than can be fulfilled by prosecuting authorities anxious to avoid giving racist utterances the publicity of a trial and the endorsement of an acquittal.

69   e.g. Lord Dholakia "We on these benches find it difficult to accept that the Bill is the right place for such legislation" November 28, col 211; Lord Campbell of Alloway "…what was agreed by the House was…that there was no or no sufficient connection with terrorism and that Part 5 should not be included in the Bill" November 28, 2001 col 421; Lord Dixon-Smith "I cannot find any linkage between this part of the Bill and anything to do with anti-terrorism" November 28, 2001 Col 430. Back

70   HL Hansard 27 November 2001, Cols 140-289 Back

71   A Ashworth "Principles of Criminal Law" (1999) p 482. Back

72   R v Higgin (1801) 2 East 5. Back

73   R v Fitzmaurice [1983] 2 WLR 227 at p 231. Back

74   R v Krause (1902) 18 LTR 238 at p 243 Back

75   Invicta Plastics Ltd v Clare [1976] Crim LR 131. Back

76   R v Most (1881) 7 QBD 244 at p 252. Back

77   D Williams "Keeping the Peace", Hutchinson (1967) p 180. The Committee is grateful to Professor Sir David Williams QC for arranging a seminar for it at the University of Cambridge, when he outlined for it the history of statutory incitement offences. The Committee has relied heavily on this and other papers delivered at the seminar.  Back

78   A Bradley and K Ewing "Constitutional and Administrative Law", Longman (1997, 12th ed) p 586. Back

79   R v Arrowsmith [1975] QB 678. Back

80   G Robertson "Freedom, the Individual and the Law", Penguin Books (1993, 7th ed) p 209. Back

81   S 3(2) Incitement to Disaffection Act 1934; Williams op cit p 190. Back

82   Robertson op cit p 210. Back

83   Williams v Director of Public Prosecutions (1968) 112 Solicitors Journal 599 Back

84   Robertson op cit pp 98-99. Back

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