Hate Crimes and the Risk of Becoming an Orwellian State.

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Is there a line between Freedom of Speech and Hate Speech? This article will summarise the case R v Rogers (2007) UKHL which was an Appeal from the Court of Appeal (Criminal Division). 

Where is the line between Freedom of Speech and Hate Speech whilst the Courts sanctimoniously make themselves the ethical arbiters for an entire culture? This article will summarise the case R v Rogers (2007) UKHL which was an Appeal from the Court of Appeal (Criminal Division). The case came before the House of Lords before; Lord Hoffman, Lord Hope of Craighead, Lord Mance, Lord Walker of Gestingthorpe and Baroness Hale of Richmond in 2007. The different legislations hate crime can fall under are; Crime and Disorder Act 1998 and Public Order Act 1986.

A summary of the case taken from the Court transcript R v Rogers (2007) UKHL 8, is; Rogers, the appellant, uses a mobility scooter because he is incapacitated by arthritis. He was driving along on his mobility scooter on the pavement after having spent his evening in a public house. Three Spanish women (the victims) were also walking along the same pavement towards their home after celebrating the birthday of another in a local restaurant. A heated dispute then took place after Rogers tried to get past them on the pavement. Rogers is then said to have followed them aggressively into a local kebab shop where the three women went for refuge. Rogers called them 'bloody foreigners' and said 'go back to your own country’ and was later found guilty of racially aggravated offences. Rogers then appealed his conviction to the House of Lords and asked the House to review the facts of the judgement.

The key facts to focus on in the case R v Rogers (2007) are; Rogers, the appellant, had been found guilty of racially aggravated threatening behaviour under the Crime and Disorder Act 1998 section 31(1)(a), towards three young Spanish women. The House of Lords was asked if by using the phrases' bloody foreigners' and "go back to your own country" can be defined as a racially aggravated offence under the crime and disorder act 1998 section 31(1)(a).



The points of law to identify and focus on in R v Rogers (2007) are; The appellant was found guilty of racially aggravated threatening behaviour, contrary to the Public Order Act 1986, s 4 and the Crime and Disorder Act 1998. The crime and disorder statute has two limbs; one is outward action-based (the Actus Reus equals a guilty act); the other is an inward motivation (Mens Rea equals guilty mind) and for a criminal prosecution both have to be present barring strict liability offences. However, elements of the offence, challenged by the appellant through his legal counsel are that by using the words' bloody foreigners' and 'go back to your own country' he did not demonstrate hostility and the comments were not directed at a specific group of people and that 'foreigners' did not refer to a group of people that can be identified as a race. The appellant argued that he could have been guilty if he had used the term 'bloody Spaniards'.

The ratio decidendi of this case was 'are those of non-British descent considered a racial group for the purposes of the contravened section 31(1)(a)', and the answer is 'yes' as 'foreigners' are non-British. The second is, 'did the defendant demonstrate hostility to such a group' and again, the answer is 'yes' and based on this reasoning, the court chose to dismiss Rogers's appeal.

The detailed analysis of the court's dismissal was read out by Lady Baroness of Richmond for the House of Lords who unanimously decided to dismiss the appeal in the case; she also gave the only speech for The House of Lords. She stated that The House of Lords was satisfied that a basic offence had been committed Under Public Order Act 1986, s 4. However, the House then had to look at whether it would be classed as racially aggravated within the meaning of section 28 of the Crime and Disorder Act 1998, (Crime and Disorder Act 1998, 1998).

 

Baroness Hale identified the 'mischief' underlying 28- 32 of the Crime and Disorder Act 1998. The court looked at a gap in the law that Parliament felt necessary to close, then interpreted the Act to fill that gap and remedy the 'mischief' Parliament has been aiming to remedy. Would the same problem have existed if he had used the term 'bloody Spaniards'? The European Communities Act 1972 says that U.k courts must give effect to European law so as to use their methods. The 'mischief rule' provides scope for judicial lawmaking as it allows judges to decide what they think Parliament intended to put right in the provision of law. The judges do not focus on the words, as stated by Parliament. The statue says that it is an offence to use racially abusive or insulting words or behaviour with the intent to cause fear or violence aimed at a specific group.

Baroness Hale found that "the mischiefs attacked by the aggravated versions of these offences are racism and xenophobia" (Hale, R v Rogers, 2007). She further stated that "Their essence is the denial of equal respect and dignity to people who are seen as 'other' (Hale, R v Rogers, 2007). She continued that 'this is more deeply hurtful, damaging and disrespectful to the victims than the simple versions of these offences, and it is also more damaging to the community as a whole, by denying acceptance to members of certain groups, not for their own sake but for the sake of something they can do nothing about’(Hale, R v Rogers, 2007) and this is just as true if the group is defined exclusively as it is if it is defined inclusively' (Hale, R v Rogers, 2007). She further stated in the House of Lords decision 'those not of British origin are a racial group for the purposes of the Act. Whether the description also involves or displays any hostility is a matter of fact in each case' (Hale, R v Rogers, 2007). Baroness Hale relied upon Section 28(1)(a) which is concerned 'with outward manifestation of racial… hostility' and section 28(1)(b) with 'the inner motivation of the offender, she said 'The offences do not require particular words to be used' (Hale, R v Rogers, 2007).

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When looking at the letter of the law, there is not a single piece of legislation that defines 'hate crime', however, The Crown Prosecution Service (CPS) says the term 'hate crime' can be used to describe different criminal behaviour(s) where the perpetrator is motivated by hostility or demonstrates hostility towards the victim based on their disability, race, religion, sexual orientation or transgender identity (Hate crime | The Crown Prosecution Service, 2020). The police and the Crown have agreed on a standard definition for identifying hate crimes: "Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person's disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity" (Hate crime | The Crown Prosecution Service, 2020). However, there is no legal definition of hostility, so the common understanding of the word is used which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike (Hate crime | The Crown Prosecution Service, 2020). Lastly, the victim of the hate crime does not have to justify or provide any evidence of their belief it was motivated by hate and their subjective perception is not directly challenged and evidence of the hostility is not required for an incident or crime to be recorded as a hate crime or hate incident.

The protected characteristics in the CPS’s term of hate crime are however covered by legislation (sections 28-32 of the Crime and Disorder Act 1998 and sections 145 and 146 of the Criminal Justice Act 2003); this allows prosecutors to apply for an uplift in a sentence for those convicted of a hate crime. Hate crimes are 'strewn' between different pieces of legislation. Provisions in the criminal court for addressing hate crimes can be placed into three categories where the protected characteristics apply differently.

Firstly, derivative hate crimes are aggravated offences and are contained in the Crime and Disorder Act 1998 and apply to two of the protected characteristics: Race and Religion. Aggravated offences carry higher maximum sentences, where the crime involves hostility based on race or religion under the Crime and Disorder Act 1998, however, the Act was amended in December 2001 to encompass religion after the September 11, 2001, Terrorist attacks. Enhanced sentencing applies to all five characteristics and direct hate crimes- stirring up offences applies to three of the protected characteristics: race, religion and sexual orientation (Hate Crime [completed report: 2014] | Law Commission, 2014)).



Offences of stirring up hatred on grounds of race, religion and sexual orientation under the Public Order Act 1986 is defined by legislation as ‘An Act to abolish the common law offences of riot, rout, unlawful assembly and affray and certain statutory offences relating to public order; to create new offences relating to public order; to control public processions and assemblies; to control the stirring up of racial hatred; to provide for the exclusion of certain offenders from sporting events; to create a new offence relating to the contamination of or interference with goods; to confer power to direct certain trespassers to leave the land; to amend section 7 of the Conspiracy and Protection of Property Act 1875, section 1 of the Prevention of Crime Act 1953, Part V of the Criminal Justice (Scotland) Act 1980 and the Sporting Events (Control of Alcohol etc.) Act 1985; to repeal certain obsolete or unnecessary enactments; and for connected purposes’. Section 5 of the Public Order Act 1986 makes it an illegal offence "threatening, abusive and insulting words or behaviour", and has come under much public scrutiny.

In an article for the Guardian entitled Rowan Atkinson Defends Freedom Of Speech, While Frankie Boyle Wins It In Court in 2012, free speech advocate and comedian Rowan Atkinson, highlights the clear problem of the criminalising of insults. Atkinson, an Oxford University graduate, says that too many things can be interpreted as criticism, ridicule, sarcasm and merely stating an alternative point of view to orthodoxy. Atkinson relies on one example that saw the arrest of a 16-year-old boy, who was peacefully holding a placard reading 'Scientology is a dangerous cult' because it might upset disciples of the movement in question.

A case such as, R v Rogers (2007), can be used as a tool, to look at which way law and society are going and can be used to look at diversity and ethical related inequalities in society and used to put forward motions to overcome discrimination for an equal, diverse and inclusive society. Factors that contribute to the ethical and diversity inequalities in today's democratic society are right-wing media publications using the term ‘freedom of the press’ to push their political narrative in deceptive reporting on immigration and asylum seekers as seen in the alleged deceptive reporting in a Daily Mail headline in 2016; 'Calais kids' are LYING about their age’. Further contributing to social injustices in society is the toxicity of social media; a platform that gives everybody a ‘voice’ and frequently used as a justification for prejudices against immigrants by different groups in Great Britain is Nationalism and National identity.



In a bid to put an end to inequalities in the U.K, U.k’S crime-buster Tony Blair and his New Labour Government thought they had found an answer to every injustice by creating new laws. Blair believed robust legislation, where he felt necessary would improve the lives of people in the U.K. Blair manipulated the 1993 murder of Stephen Lawrence to use of the term ‘hate crime’ and used moral panic cynically to overturn longstanding common law principles. The murder of Stephen Lawrence was used to eliminate the double jeopardy rule and, as per the MacPherson report, to put an end to what was considered racially biased policing.

The Stephen Lawrence case caused concern as to what is racism in the U.K and how it was dealt with by the police and the Government. However, Tony Blair faced public scrutiny by Stephen Lawrence's mum, Doreen Lawrence in an article published in the Telegraph of ‘playing party politics with race’, which she believed did not promote ethnic harmony, even though Blair was rightly trying to protect the characteristics of minority groups. However, by creating more laws he was also enforcing through the law individuals to impose their strict beliefs onto that of another, which is communism. Other areas such as sexuality, religion and gender were also brought into question before this case; this type of crime was dealt with under various headings until the Crime and Disorder Act 1998.

The case R v Rogers (2007), highlights that everyone is fighting their own unfairness and injustices. Rogers had to deal with the unfairness and injustices he faced by being incapacitated by arthritis and requiring the support of a mobility scooter (R v Rogers, 207). The case also highlights that racism has a broad definition and is also a highly sensitive subject in an integrated, multicultural society, where some citizens could be thought of as ‘less than’. What the case R v Rogers (2007) may say to society is that the three Spanish women were not autonomous individuals but were members of a ‘group’ and in their case a racial group. This ‘group’ categorising then creates a battleground with power manoeuvres between different ‘groups’. These ‘groups’ then fundamentally identify people by the ‘group’ that they belong to instead of their unique individual characteristics, this then allows the whole world to be construed as a battleground for the different ‘groups’, and according to psychologist Jordan Peterson that is not progression for equality it’s tribalism that has also been characterised by a political group.



Of course, each legal case will have different individual aspects, Rogers, ‘the man in the wheelchair’ contravened the Act described as ‘mischief’ (Hale, R v Rogers, 2007). He didn't mention a specific race but rather a general term, although this is still seen as a hate crime, however, what the courts have decided is that commonly used parts of a language are ‘racist and xenophobia’ (Hale, R v Rogers, 2007) and that the people who didn’t get the memo about those words must be criminalised if they step over the legal line. It is at this juncture that perhaps the Government and individuals have to be careful of not becoming an Orwellian state where it is a crime to think and speak, thus curtailing a person's autonomy of freedom of speech and thought.

The world should still work to change hatred of any kind, not just race and hate crime. However, it should not be to the detriment of freedom of speech. Something that the European Courts of Human rights has already limited as Article 10 of the Human Rights Act 1998 says “everyone has the right to freedom of expression” in the UK. But the law also states that this described ‘freedom’ “may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary for a democratic society”. Stephen Fry wrote in his autobiography The Liar argues that free speech is meaningless if you can not say something that offends someone. What this case (Rv Rogers, 2007) highlights is that there is a fine line between what is freedom of speech and what is hate speech; and who can say what and when in a multicultural society?

In an integrated, multicultural society such as the U.K, it can be said that Rogers, the three Spanish women and Lady Hale do not all live in a shared reality, they each live in a reality of their own. The courts demonstrate the need for robust political correctness and at times appeared sanctimonious when drawing on the court's superior use of the English language such as using the term ‘Iberian continent’ (Hale, R v Rogers, 2007). There is a clear ‘need to be right’ from Lady Hale in her 2007 ruling and the courts show themselves to be the ethical arbiters for the entire culture, rather than trying to be effective, because the criminalisation of language, (or behaviour) that was not ‘speaking of terror’ is not going to bring human decency, tolerance and a better world. The language may have been unpleasant and may have offended in the heated moment but it did not incite violence. It can be argued that ‘offence’ appears to be the collateral damage of free speech and the offence should not come with certain rights over that of another.

By labelling Roger’s words and behaviour to be ‘racism and xenophobia’ (Hale, R v Rogers, 2007) the courts are ‘theoretically’ suppressing language because they are saying something that they disagree with and/or dislike. Furthermore, the Court did not consider that Rogers could have been using irony when he made his statements. Just because the Spanish women did not like his statement does not necessarily mean he is a racist, perhaps by taking offence they were simply trying to avoid a difficult conversation about their behaviour of blocking the pavement of a disabled man. The Spanish women's perception of what is hostile could also be argued as subjective. However, the law remains clear and the courts have decided that by making the statements aggressively Rogers had crossed a legal line, however, Rogers did not draw the line the courts did, therefore, again this topic of ‘hate crime’ is subjective.

To conclude, the case R v Rogers (2007) highlights the in-depth complexities of hate crime and it also highlights injustices faced by others in society. However, there is no excuse, nor should there be any type of intolerance for anyone who expresses any kind of racism or xenophobia. What Rogers said was irrational and terrible, but it was also only one moment in his life where the words expressed were said to cause offence to an innocent group of women in the course of one day. The comments do not necessarily represent or reflect what he believes or how he has treated people throughout his entire life, nor has the CPS or House of Lords taken into consideration the emotions and frustrations at the time of Rogers making the comments. Whilst it is acknowledged that Lady Hale applied the law correctly, the fact that the CPS even pursued this case which could also be described as an ‘alcohol-fuelled disagreement’, so vigorously suggests that they and the unelected Lords may have a little too much time on their hands. Lastly, moving forward. It leaves the question where does the criminalising of language stop? Not offending someone is impossible and ‘taking offence’ appears to have been given a social status that it does not deserve. To quote Stephen Fry in his autobiography The Liar who is ‘proud of being Jewish, and proud of being gay’ “It's now very common to hear people say, 'I'm rather offended by that.' Well, so fucking what.”

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Read 330 times Last modified on Sunday, 20 September 2020 18:44
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Staff Reporter

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