Hate legislation removes an increasing quantity of matters traditionally dealt with in civil society to the domain of the state and the courts. In a new report from the independent think tank Civitas, A New Inquisition: religious persecution in Britain today, Jon Gower Davies, formerly the Head of Religious Studies at Newcastle University, reveals the bizarre and oppressive nature of judicial attempts to prosecute individuals for 'religious hatred' - this new legal concept has resulted in some singularly worrying court cases.
Blasphemy Law by the Backdoor
The Blasphemy Law was abolished in 2008, but has re-emerged in a new and radically augmented guise. Today, individuals are not charged with blasphemy, but with causing 'religiously aggravated intentional harassment, alarm or distress' under the Public Order Act. Jon Davies argues that the growth in accusations of 'hate crime' threatens freedom of speech because they destroy the possibility and practice of open, sociable and critical discussion of religion.
'Hatred' in the legal sphere
Whilst the total number of racial and religious hate crimes fell from 13,201 in 2006-7 to 11,845 in 2008-9, the volume of hate legislation has rapidly expanded. There are now more than 35 Acts of Parliament, 52 Statutory Instruments, 13 Codes of Practice, 3 Codes of Guidance and 16 European Commission Directives which bear on 'discrimination'. And most recently, the Single Equality Act was passed by Parliament in April 2010. Yet legal definitions of 'hatred' are elusive. A government action plan states:
'A (religious) hate crime is a criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a persons religion or perceived religion.' (p.10)
In addition, 'hatred' is not only presented as an offence on its own account, but can also be seen as something which aggravates ordinary public order offences. When an ordinary offence is aggravated by 'hatred' based on race, religion, gender, or age, then the sentence too is 'aggravated' (i.e. increased).
Judges become theologians!
Jon Davies argues that these 'definitions' are without substance, and inevitably result in confusion and silliness in their application. The attempt to define a 'hate Incident' in terms of 'hostility' results in perilous imprecision: it is not possible to know when individuals have been hated - or, indeed, when they have themselves been hating! - and for how long and to what depth and to what effect. The essence of the criminal justice system should be justice and impartiality, but turning religious hatred into a criminal offence turns police, the Crown Prosecution Service and judges into surrogate theologians - a kind of theocracy (an uncomfortable theocracy at that) by the backdoor.
'Are judges, even judges giving the "right" verdict, so qualified in theology that they feel able to offer doctrinal guidance? Is the Crown Prosecution Service so prudent in its understanding of "religious hatred" that it should be free, with no penalty for error, to mobilise the power and resources of the state against ordinary citizens who make comments about religion?' (p.2)
To demonstrate the oppressive oddity of judicial attempts to regulate religious hatred, Jon Davies describes the 2009 case of Ben and Sharon Vogelenzang, owners of the Bounty House Hotel in Liverpool. Following a discussion between the Vogelenzangs and a guest at their hotel, Mrs Erica Tazi, about the respective merits of her religion (Islam) and theirs (Christianity), Mrs Tazi made a formal complaint to the Merseyside police about what she said were offensive remarks made by the Vogelenzangs. They were subject to a grim and prolonged ordeal when they were accused of a religiously aggravated hate crime. For several months they were pursued by the police and the Crown Prosecution Service! The Vogelenzangs were prosecuted contrary to the evidence; when the full story came to court, it transpired that a Muslim doctor had also been eating breakfast in the hotel and found nothing objectionable about the couple's conduct. Jon Davies calls the case:
'...a hackle-raising demonstration of disquieting changes in the relationship between our history, the citizen, his or her religion, his or her civil society and the state'. (p.2)
He argues that hate legislation has demolished several of the traditional defences of the citizen. For example, the 'burden of proof' is effectively reversed under section 66(5) of the Equality Act (2006), because whilst by long-established practice the Vogelenzangs should have been regarded as innocent until proven guilty:
'[There was a] public presumption of culpability... the local NHS authority [which provided 80 per cent of the Bounty House income] cancelled their bookings'. (p.14)
There is evidence of at best arbitrary, at worst biased, application of the law. In a recent case a Muslim man defaced a war memorial (a Christian and national symbol) in Burton upon Trent. He sprayed the words 'Islam will dominate the world-Osama is on his way' and 'Kill Gordon Brown' across the plinth.
'He was prosecuted for criminal damage, that is for neither a racially nor a religiously aggravated offence.' (pxii)
Ultimately, the exercise of hate legislation seems to create the very atmosphere it was designed to prevent - hatred:
'The hate laws are criminal laws operating under the police and the CPS; and their parading of assorted 'miscreants' through the degradation ceremonies of the courts, will create more abuse and hatred.' (p18)
A danger to freedom of speech
One of the great triumphs of liberalism has been to separate the discovery of factual truth from the assertion of religious doctrine. And yet, when Judge Richard Clancy dismissed the case against the Vogelenzangs in December 2009, he commented that it might be best for individuals not to engage in discussions about religion! As a result:
'It becomes "wise" to "be careful", to restrict the compass of what we say about what we believe, or do not believe, or about what others believe or do not or should not believe, and to turn what were once vigorous public conversations into a frightened, if safe, if amiable and fundamentally humourless chat about small and dwindling things.' (p.49)
Throughout most of human history the suppression of unwelcome opinions has been the norm. Therefore, open societies in which we try to settle our differences without violence have been a great human achievement. For some centuries we in this country have been accustomed to dealing with such matters 'amongst ourselves', in a public sphere regulated by our own good sense and law legitimised by general consent and softened by a live-and-let-live ethos. In contrast to such 'good sense', for example, 23 year-old Tauriq Khalid, was charged by Burnley Police in 2009 after he made a two-fingered gestures at a BNP demonstration and at its leader Mr Nicholas Griffin. Davies comments:
'[R]arely would anyone consider that 'two fingers' and a brusque invitation to "f--- off out of Burnley" indicated affection: but to take a man to court for such an attitude?' (p5)
Because freedom of speech is the prevailing view in Britain, we are not as alert to the risk of its overthrow as we should be. The freedom to speak our minds without fear or favour is worth fighting for. In A New Inquisition, Jon Davies shows why the liberal majority needs to reassert the convention that the law should be used not as a weapon to suppress unpopular opinions, but rather as the protector of free speech.
For more information contact:
Civitas on: 020 7799 6677
Notes for Editors
i. Civitas is an independent think tank. It receives no state funding either directly or indirectly and has no links to any political party.
ii. Jon Gower Davies retired from the University of Newcastle ten years ago. He lectured, first, in the Social Studies Department, and then in the Department of Religious Studies, of which he was Head. For twenty years he was a Labour Councillor on Newcastle City Council. He is the author and editor of books and articles on a wide range of topics, including Bonfires on the Ice: the multicultural harrying of Britain and In Search of the Moderate Muslim published by the Social Affairs Unit; and on attitudes to death and dying in the ancient religions of the world, published by Routledge.
iii. To buy A New Inquisition by Jon Davies, contact Civitas on: 020 7799 6677.