Simon Perfect explains The Law Commission’s proposals for reforms to hate crime law in England and Wales and the implications for free speech. 19/11/20

Hate crime is back on the agenda. Last month, it was revealed that during June, at the height of the Black Lives Matter protests, racially or religiously aggravated offences in England and Wales were a third higher than they had been in June 2019.[1] In January, the Hate Crime (Misogyny) Bill will have its second reading in the House of Commons. Meanwhile, police have recently investigated both the historian David Starkey over his comments around slavery and genocide, and the interviewer he was speaking to, Darren Grimes – with the investigation of Grimes sparking criticism from people as far apart as Priti Patel and Tim Farron.

More widely, the Scottish government’s Hate Crime and Public Order (Scotland) Bill has generated significant controversy over concerns about its impact on freedom of speech. A poll in February found that nearly 3/4 of people in Britain think hate speech is a problem.[2] And in September, the Law Commission (a statutory body made up of judges, lawyers and academics) published a massive paper (544 pages) with proposals for reforming hate crime law in England and Wales. It had been asked by Theresa May’s government to review the law to ensure it works effectively. Most media attention focused on its recommendation that ‘sex or gender’ be protected under hate crime law, though the implications of the proposals are wider than that. The Commission wants to hear the public’s views on the proposals, with the consultation ending on Christmas Eve. But ultimately, it’s entirely up to the government whether to implement any of these proposals; for now, the law stays unchanged.

This issue generates intense public debate, and there is a lot of confusion about what the law actually says. To cut through the noise, here is a Hate Crime 101, explaining the current law and some of the criticisms of it. I’ll also outline some of the more notable recommendations from the Commission’s paper. The focus is on England and Wales; the relevant laws are different in Scotland and Northern Ireland. It is up to the reader to weigh up the merits or drawbacks of these proposals.

In brief:

·       There are two different issues that are addressed by hate crime laws. There are existing crimes (such as assault) which are motivated by hatred of someone’s ‘protected characteristic’ (such as their religion). And there are ‘stirring up hatred’ offences (which refer to ‘hate speech’). There are distinct laws relating to these two categories. Most hate crime court cases are to do with the former category, but most of the public debate focuses on the latter.

·       Current hate crime laws face criticism from two sides. Some people think they go too far, overly infringing freedom of speech. Others think they don’t go far enough in protecting vulnerable groups.

·       Current hate crime laws protect some groups more than others. The Law Commission sees this as unfair, and its recommendations try to rectify it by offering equal coverage to each ‘protected characteristic’.

·       The Commission proposes a set of standard criteria for determining whether new characteristics should be protected.

·       The main effect of protecting ‘sex or gender’ under hate crime laws would be that judges could hand down tougher sentences for existing crimes against women motivated by hatred of women.

·       The Commission wants to make it easier to prosecute ‘stirring up hatred’ offences. This would expand the range of speech that would become unlawful. The Commission wants to make it an offence to ‘stir up hatred’ on grounds of disability or transgender.

·       The Commission proposes coupling this with strong free speech protections, particularly on topics of intense public debate like religion and transgender issues. This is crucial. But there are still significant concerns about how the changes could chill debate even with these protections.

·       In particular, the Commission’s proposals would not resolve the ‘hate incident’ problem – where police investigate and record incidents alleged to be a hate crime, but which turn out not to be crimes at all – and indeed, would likely exacerbate it. This risks chilling open debate on controversial issues. Allegations of ‘non–criminal hate incidents’ may also show up on someone’s enhanced DBS check, meaning they could detrimentally affect someone’s career progression even if no crime has been committed.

It remains to be seen whether the government will take up any or all of these proposals.

What is hate crime? Aggravated offences and enhanced sentencing

‘Hate crime’ is an ambiguous term which is thrown around a lot to refer to things people find offensive. But often the things it is applied to do not amount to ‘hate crimes’ for the purpose of the law. In this section I address the first category of hate crime law referred to above.

The CPS definition of hate crime is any crime – such as physical assault, verbal and online abuse and damage to property – “which is perceived, by the victim or any other person, to be motivated by hostility or prejudice towards someone” based on one of five factors: race, religion, sexual orientation, disability, and transgender identity.[3] These are called ‘protected characteristics’. (Confusingly, equality legislation also refers to a longer list of ‘protected characteristics’, but the latter includes characteristics which are not protected under hate crime law, such as sex, marriage and civil partnership, and pregnancy and maternity).[4] We’ll come back to the perception element of this definition (and the related ‘hate incident’ problem) below.

When a court finds that a crime (of any kind) has indeed been motivated by hatred of the victim’s protected characteristic, such as their religion, it can be punished with higher sentences, within the existing maximum already available for that type of crime. This is the enhanced sentencing regime.  In addition, certain crimes, such as assault, harassment or criminal damage which are motivated specifically by racial or religious hatred, can receive even more serious punishments; these are called ‘aggravated offences’, and can receive higher maximum penalties than is usual for that crime. For example, a common assault would usually receive up to six month’s imprisonment; if it is racially or religiously aggravated, that maximum could be increased to two years.[5]

So, much of hate crime law is about existing crimes which have a particular motivation of hatred towards the victim’s protected characteristic, rather than another motivation, such as greed. But there is no standard legal definition of ‘hatred’ or ‘hostility’ (the CPS guidance suggests it could mean things like ill–will, prejudice, unfriendliness, resentment or dislike),[6] so deciding whether it was involved is a matter of judgment. 

In court, prosecutors either need to prove that hatred was the motivation or, more simply, to prove that the defendant demonstrated such hostility during (or immediately before or after) the offence – for example, demonstrating that they used a racial or homophobic slur while committing the crime. The ‘demonstration’ pathway is much easier than the ‘motivation’ pathway for prosecutors, because they don’t need to engage in an evaluation of the defendant’s state of mind; they just need to show that there were clear outward signs of hostility.[7]

Of course, demonstration does not always equal motivation. Using a slur when drunkenly assaulting someone doesn’t necessarily mean the crime is motivated by hatred. For this reason some legal scholars are critical of the UK’s demonstration pathway, which is unusual when compared to other countries.[8] But this pathway to conviction reflects the fact that hate crime laws are not only concerned with the defendant’s motivation, but also with the consequences for the victim and wider society.

Indeed, the uplift in sentences in hate crime law is primarily justified by the idea that a crime motivated by hatred of the victim’s very identity causes additional harm to the victim (and to the victim’s group) than if it was not so motivated – because it diminishes them, denies them dignity, and may make them doubt their safety and acceptance in society. This idea has some empirical support in victim surveys. In the 2019/20 Crime Survey of England and Wales, for example, 36% of hate crime victims said they were “very much” affected emotionally after the incident, compared with 15% for all crime victims.[9] And academic studies have concluded that victims of hate crime are more likely than victims of comparable, otherwise motivated crimes to report suffering panic attacks, depression, fear, feeling vulnerable or being in shock.[10]

The other main justification for increased punishment is educative and about sending a message: to deter potential offenders and challenge prejudices, and to signal that the state values victims of hate crime as equal members of society worthy of respect.[11]

As the Law Commission notes, the first justification rests on a retributivist idea of justice – that offenders deserve a punishment proportionate to the seriousness of their offence, and that because hate crime is said to cause additional harm, it deserves additional punishment. The second, symbolic, justification reflects an expressivist theory of justice – that one of the main purposes of punishment is to communicate the wrongfulness of the behaviour.[12] These justifications will make sense to many people, but they are not without criticism. For instance, as my colleague Paul Bickley notes, it’s questionable whether the expressivist reason (educating the public) is a sufficient justification for giving hate crime offenders harsher sentences. Arguably, the punishment of the individual offender becomes more about wider society than about redressing the offence itself.

How common are hate crimes in England and Wales?

This is difficult to know for sure. Regarding the first category of hate crime (existing offences motivated by hatred towards the victim’s protected characteristic), the number recorded by the police has increased dramatically over the past few years – from 57,676 in 2015/16 to 105,090 in 2019/20, a jump of 82%. But the Home Office attributes most of this rise to improvements in how the police record crimes. It acknowledges, though, that there have been genuine spikes in hate crime following particular trigger events, including the EU Referendum, the 2017 terrorist attacks, and most recently following the Black Lives Matter protests.[13]

Aside from police reported crime, the Home Office also uses the Crime Survey for England and Wales to measure hate crime, which asks households if they have experienced crime, regardless of whether or not they reported it. This actually shows a significant decline in hate crime over the last decade – though unsurprisingly, the estimated scale of hate crime is still much higher than in the police reported data.[14]

The conflict between the two data sources makes it difficult to know what to conclude about the overall trends. However, we do know that the proportion of reported hate crime resulting in a criminal charge has declined in recent years (down to 9% in 2019/20) – a similar pattern for all crime, even as total crime is rising. Again the Home Office attributes this to changes in police recording, as well as to an increase in crimes which are more complex and challenging to investigate.[15]

So what motivates hate crimes? Racial hatred dominates the list, amounting for 72% of hate crimes in 2019/20. Hate crimes based on sexual orientation make up 15%; disability 8%; transgender 2%; and the number of these reported by the police have been increasing year on year. Religion makes up 7% of the total (6,822 in 2019/20), though many religious hate crimes may also be recorded as racial hate crimes. Unsurprisingly, where the (perceived) religion of the victim was recorded, half of religious hate crimes were targeted against Muslims, and 19% against Jews.[16]

What is ‘stirring up hatred’?

In the vast majority of cases, hate crime legal cases involves uplifting sentences for things which would have been crimes anyway, but are more serious because of their hatred motivation. But there is a second category of hate crime law. This involves the quite separate offences of ‘stirring up hatred’, where someone intends (through their words or behaviour) to incite people to hate a group based on their race, religion or sexual orientation. This could either be offline or online. Currently, there isn’t a specific offence of stirring up hatred against disabled or trans people.

These are very serious offences – stirring up religious hatred, for example, carries a max penalty of 7 years in prison. And it is these kinds of hate crime which generate the most media commentary, because they amount to a prohibition on certain kinds of speech. But there is a very high threshold for prosecution, and in practice the number of cases which end up in court is absolutely tiny: in fact, in 2018–19 there were only 13 prosecutions, with 11 convictions.[17]

So, what exactly would count as a convictable stirring up hatred offence? It’s a high bar, as demonstrated by a consideration of the kind of speech which could actually lead to conviction. Last year, Jay Davison was sentenced to four years in prison for stirring up both religious and racial hatred. On Instagram, while drunk, he had posted a photo of himself holding a musket–type gun, with a finger on the trigger, alongside various anti–Muslim statements, including references to decapitation.[18]

Davison’s comments were deeply offensive, but offence alone is not enough to convict someone of stirring up hatred. Such a conviction depends on two factors: 1) whether a statement was intended to, or likely to, stir up hatred; and 2) whether it was threatening or abusive or insulting. The criteria for convicting racial, religious and sexual orientation hatred are not the same (see below). In Davison’s case, the judge ruled that he intended to stir up religious and racial hatred, and that the material was threatening – the photo compounding the references to decapitation.[19]

However, if Davison had expressed his anti–Islam views in a more moderate way (and without the inflammatory image), it’s very unlikely he would have been convicted of a crime. That’s because the law contains a strong freedom of speech exemption with protects “criticisms or expressions of antipathy, dislike, ridicule, insult or abuse” of religions and beliefs and their practices.[20] A similar clause exists protecting criticism of sexual and marriage practices (effectively protecting criticism of same–sex relationships and marriage).[21]

In addition, under Article 10 of the European Convention on Human Rights, everyone has the right to freedom of expression, including for speech acts which “offend, shock or disturb”.[22] States can only restrict someone’s freedom of speech in narrow circumstances, such as to protect the rights of others or prevent disorder. These strong legal protections for criticising religion often get forgotten in our public debates about free speech.

What are the main criticisms of the current law in England and Wales?

Inappropriate or unjust uplifting of sentences?

Some people’s criticism of the current law focuses on the first category of hate crime law – the enhanced and aggravated sentencing regimes. As we’ve seen, some scholars worry that the ‘demonstration pathway’ in prosecutions means that the label ‘hate crime’ (and the uplift in sentences) may be applied inappropriately to offences which don’t warrant it.

More radically, some question the very notion of uplifting sentences for crimes motivated by hatred of certain groups and not of others – asking whether this unequal treatment of groups at sentencing is just. In a previous Theos blog on this topic, Paul Bickley asks whether “equality before the law” remains the goal.

The ‘hate incident’ problem: A chilling effect on freedom of speech?

A more common criticism focuses especially on the second category of hate crime law – the stirring up hatred offences. Some people argue the current law – and / or how the police implement it – goes too far and overly restricts free speech. In particular, there are significant concerns about how police investigations of ‘hate incidents’ might affect freedom of speech, even where there is no eventual prosecution or conviction.

As the CPS definition of hate crime indicates, the police will record any hate incident someone “perceives” to have occurred, and may investigate it to determine the facts of the case. The police argue that recording reported hate incidents helps them to identify if community cohesion problems are arising. But many perceived hate incidents do not amount to crimes. Inevitably, this means the police sometimes investigate (and make records of) people for making allegedly offensive comments which do not in fact cross the boundary into illegality. Since the factor driving police investigations here is someone’s perception of whether or not particular comments were hateful, and whether or not a crime has been committed, it means there is an inherent level of subjectivity in the process.

In court, someone accused of stirring up hatred could draw on the free speech protections discussed above. But that doesn’t help them before they get to court. Someone investigated by the police for an alleged hate incident would feel pressured to censor their speech in the future – even if they are not ultimately charged with committing a crime.

A further concern is about how police records of ‘non–crime hate incidents’ might affect the accused person later in life. Such incidents would not appear on a basic or standard DBS check, but they could appear on an enhanced DBS.[23] In a recent legal case discussed below, the judge concluded that such disclosure to potential employers would be permissible “where the individual may be in contact with vulnerable individuals… [who] belong to the group against whom it is complained the applicant was hostile”.[24] This makes sense – an employer at a charity supporting vulnerable people would want to know whether their potential employees had previously made even non–criminal hateful comments about that group. But again, the subjectivity of perceived hate is important here. There is a clear possibility of people’s career progression being inhibited because of perceived hateful speech, even if wrongly perceived in legal terms. 

This ‘hate incident’ problem was the centre of a recent important legal case, which is worth examining in some detail. In 2019, a Mrs B made a complaint to the police about Harry Miller, who had made a number of tweets about transgender issues which Mrs B found offensive. The tweets, which were aimed at Miller’s Twitter followers rather than targeted at a particular individual, were ‘gender–critical’ (for example, in one tweet he wrote, “Transwomen are women. Anyone know where this new biological classification was first proposed and adopted?”). They ranged from profane sarcasm to a disparaging poem.[25]

After the complaint, a police officer visited Miller’s place of work and also called him to discuss the tweets. The officer said that the tweets were upsetting many members of the trans community, that the episode had been recorded as a hate incident, and that although Miller’s behaviour was not unlawful, “if it escalated then it may become criminal”. Miller, on his part, claimed the officer said he needed to “check” Miller’s “thinking”, and that “continuing to tweet Gender critical content could count as an escalation from non crime to crime”. The officer denied he said these things. Miller claimed as a result of embarrassment about the police action, he withdrew from involvement with his company; he also said he faced threats as a result of his tweets, though subsequently he continued to post about transgender issues.[26]

In court, the judge concluded there was no evidence that the tweets might escalate to the point of a crime.[27] He also held that the police action (particularly turning up at his workplace and warning him about prosecution) was an unjustified, disproportionate interference with Miller’s right to freedom of speech.[28] The judge emphasised that, under the European Convention on Human Rights, there are particularly strong protections for “political speech and debate on questions of public interest”, including trans issues.[29]

This case is important because it shows the ‘hate incident’ problem in action – how police investigation of an alleged hate crime (including those which turn out not to be crimes) can risk undermining free speech on controversial issues. Though the judge found in Miller’s favour on freedom of speech, he held that the police guidelines which require the investigating and recording of alleged hate incidents (including non–criminal ones) are lawful and serve a legitimate aim. It remains to be seen if the guidance will face further legal challenge in the future.

It’s impossible to know how significant the chilling effect of the ‘hate incident’ problem is, and it’s unclear how it could be avoided without dismantling the hate crime laws altogether. But it remains a serious concern: we must be free to speak within the boundaries of the law, even if that means causing offence to others.

A hierarchy of hate? Some groups have less protection than others

Some people think the current laws need reforming in the opposite direction – strengthening protections over different groups. This is the Law Commission’s position. Among its criticisms of the law are that there is unequal protection for the five characteristics currently protected by criminal law.[30] Disabled and trans people receive markedly less protection than the other groups, because there isn’t a specific offence of stirring up hatred against them, and the aggravated sentences regime (increasing maximum sentences) doesn’t cover them.

Some disability campaigners have argued that the current test for whether a crime also amounts to a hate crime needs reform. As discussed above, there are two pathways for prosecuting a potential hate crime – proving the defendant was motivated by hostility, or proving they demonstrated hostility during, or immediately before or after, the offence. Some campaigners have argued that ‘hostility’ doesn’t properly capture the kind of exploitation involved in crimes against disabled people. They argue that such crimes are more likely to be characterised by derision, contempt and a fundamental disregard for them, rather than by actual hatred – and this might make it more difficult to prove a crime was a hate crime in the context of disability compared to other characteristics.[31]

In addition, there are unequal thresholds for prosecuting the stirring up of hatred on grounds of race, religion or sexual orientation:

·       To convict stirring up racial hatred, the defendant must have been “threatening, abusive or insulting”, and must either have intended to stir up racial hatred, or (regardless of their intention) was likely to have stirred it up.[32]

·       The goalposts are narrower to convict stirring up hatred on the basis of religion or sexual orientation. Here, the defendant’s words or conduct must have been threatening (not merely abusive or insulting), and they must have intended to stir up hatred (a likelihood of stirring it up is not enough).[33]

The disparity is intended to protect freedom of speech, alongside the specific exemptions discussed above, which cover religion and sexual orientation. But it means that groups recognised by the law as a ‘race’ have much more protection than groups recognised as ‘religions’. One notable consequence of this is that Sikhs and Jews, which are recognised by the law as both religious and racial groups, receive stronger protections from incitement to hatred than members of more multi–ethnic religions like Christianity and Islam. So it is easier to convict someone who made an abusive comment about Jews or Sikhs, for example, than if the same comment was made about Muslims.

Finally, and most obviously, the current hate crime laws do not apply to groups beyond the five protected characteristics. Assaulting a woman because of hatred of women would be a crime – but would not generate a higher than usual sentence, as it would if it was motivated by racial or religious hatred. That hate crime legislation in England and Wales is currently limited to these characteristics is simply the result of piecemeal legislating rather than any principled reason. Other common law jurisdictions protect different characteristics: age is protected in Canada and New Zealand; language in New South Wales; and homelessness, personal appearance and even political affiliation in some US states.[34] Scotland’s recent Hate Crime and Public Order (Scotland) Bill will add ‘age’ and also give the Scottish government the ability to add ‘sex’ at a later date if it wants to.[35]

Some groups, like Stop Hate UK, argue that we should move away from a list of specific characteristics and have a flexible, open–ended approach where offences motivated by hate against any group can be punished by a sentence uplift. This would ensure that all groups can be protected equally and that emerging trends of hate can be captured.[36]

What’s the Law Commission proposing?

The Law Commission was asked by the government to assess the effectiveness of the current law in England and Wales and make recommendations. It says that issues about how the law is actually enforced by the police (such as the hate incident problem) were outside the remit of its review.[37]

Among the various proposals, these are the most notable:

Give all characteristics equal protection and make the test for hate crime ‘hostility or prejudice’

The Law Commission wants there to be standard protections for the different protected characteristics. The main upshot would be to ensure that crimes motivated by hatred on grounds of disability or transgender (or any other characteristic adopted) can be dealt with as aggravated offences, meaning they would receive higher maximum sentences. This would undo the current legal disparity between the characteristics. It also suggests broadening the current ‘transgender’ category to ‘transgender, non–binary or intersex’, to ensure hate crime law explicitly covers a wider range of people who may experience hostility because of their “non–conformity with normative sex and gender expectations”.[38] (I come back to this below).

Additionally, the Commission proposes amending the test for whether a crime should also be considered a hate crime, in response to the concern from disability campaigners. It proposes amending the ‘motivation’ pathway (not the ‘demonstration’ pathway), so that prosecutors would need to prove that a crime was motivated by ‘hostility or prejudice‘. This would make it somewhat easier to apply the label hate crime (and the sentence uplifts) to some of the exploitative crimes experienced by disabled people.[39]

In practice though, the Commission doesn’t think this will significantly increase the number of crimes that meet the threshold for the hate crime label, because proving that a defendant was motivated by either hatred or prejudice (an assessment of their mental state) would remain a much more difficult task than proving they ‘demonstrated’ outward signs of hostility.[40] And it’s important to remember this particular change would apply to things which are already crimes, such as assault, rather than outlawing prejudice in general.

Expand hate crime laws to protect other groups – but only if it’s clearly needed

The Law Commission says it wants to make provision for expanding hate crime laws – but in a way that is based on need and the scale of the problem. Despite the merits of an open–ended approach to hate crime, the Commission recommends sticking with a specific list of characteristics. It argues that some groups experience more severe harm as a result of hate crime than others (as a result, for example, of historical oppression and current socioeconomic disadvantage), so these groups should be protected explicitly in the law. There’s also a strong case to be made about keeping the scope of what conduct is criminalised to the necessary minimum.[41]

As a way of resolving the arbitrary nature of hate crime law, the Law Commission offers a set of criteria for determining whether other characteristics should be added to the list:

·       How prevalent is the targeting of a particular group based on hostility or prejudice towards their shared characteristic?

·       Does the targeting based on hatred of the characteristic cause additional harm to the group and to society? (I may be targeted because someone hates my murky–green eyes, but this isn’t such a big part of my identity as to cause me harm beyond the crime itself).

·       Would extending protection to this characteristic be workable in practice and fit with wider sentencing and policy considerations?[42]

This approach would mitigate against a continuous expansion of criminal law without legitimate reason.

Add ‘sex or gender’ to the list of characteristics

These criteria explain why the Law Commission thinks ‘sex or gender’ should be covered by hate crime laws, including the sentence uplift regime (the first category of hate crime law). Despite the terminology (discussed below), in practice the Commission is primarily thinking of crimes motivated by anti–women hatred (indeed several MPs have called specifically for the category to be about misogyny).[43] The prevalence of crime against women in the UK is shocking; among the raft of data the Commission cites are the fact that 1 in 4 UK women will experience domestic abuse in their lifetime.[44]

But how much of this abuse is directed against women specifically because of hatred of their gender? You can’t assume, for example, that all sexual or domestic violence against women is a sex or gender–based hate crime – and proving the hatred motivation in court might be very difficult. As the Commission notes, there’s a danger that introducing sex or gender–based hate crime would create a problematic ‘hierarchy’ of violence against women, where crimes which, say, feature gendered slurs might be punished more harshly (as potentially motivated by sex / gender hate) than those which do not.[45] The Commission doesn’t have an easy answer to this issue, and it creates a difficulty for adding this characteristic under the Commission’s third criteria of workability or suitability.

Nonetheless, citing various experts and organisations fighting violence against women, it argues there is clear evidence that much of the abuse (particularly online abuse) is connected to prejudice and hatred of women; that this hatred of their very identity means such crimes can cause additional harm to them; and therefore that the characteristic should be added.[46]

In contrast, the Law Commission says it is far less clear that crimes against men are routinely motivated by hostility to men in general. It suggests the protected characteristic should simply be ‘sex or gender’ (so covering hostility to both women and men), but asks for the public’s views on whether it should be specifically misogyny / anti–women hatred.[47]

What would the implications be? If adopted by the government, the proposals would not suddenly outlaw a range of sexist behaviour. Some media commentators have worriedly claimed that wolf–whistling would be banned,[48] but this isn’t true. Currently wolf–whistling may already be illegal if it is found to amount to harassment, but one–off incidents are not likely to be a crime.[49] Expanding hate crime law would primarily mean that existing crimes which are motivated by hatred of someone’s sex or gender could receive a sentence uplift. The main effect would be in the signal it sends: acknowledging the severity of crimes motivated by sex or gender–based hatred, and encouraging more women to report crimes committed against them.

Of course, by expanding hate crime to cover sex or gender, you make it much more likely that misogynistic incidents that don’t amount to a crime (such as one–off wolf–whistling) will be reported as a hate incident to the police. There is an obvious risk this could significantly increase the workload of already overstretched police. This is why Chief Constable Sara Thornton, chair of the National Police Chief’s Council, argued against making misogyny a hate crime in 2018.[50] Encouragingly, a well–publicised trial of recording misogyny hate incidents in Nottinghamshire did not lead to a massive overburdening of police – between 2016–18 only 174 incidents were reported, 73 of which amounted to crimes[51] – but it’s unclear what the impact would be on a national level.

It’s also worth noting the wider implications of the Commission’s categories of ‘sex or gender’, and ‘transgender, non–binary or intersex’. These are different from the categories currently recognised under equality law (‘sex’ and ‘gender reassignment’),  which is primarily relevant to the workplace and people providing a service. The Commission’s aim is to ensure that hate crime law protects people who might fall through the gaps if the categories were ‘sex’ or ‘transgender’ alone. For example, they suggest that an assault against a trans woman motivated by misogyny (rather than transphobia) might not be eligible for a sentence uplift on grounds of sex– or transgender–based hate crime, but it would be under the broader category of ‘sex or gender’.[52]

Some people will welcome these wider categories as a recognition (in the Commission’s words) of changing understandings of “sex and gender variation”.[53] The emphasis is on how people self–identify in these matters.[54] But in general, statute and case law have tended to recognise a binary distinction between the sexes, usually but not always rooted in biology (trans people are able to change their legal sex via a Gender Recognition Certificate (GRC), so for example a trans woman with a GRC has the legal sex of a woman).[55] Thus, some people will worry the Commission’s expanded categories will create tensions with the different categories under equality law (though recent employment tribunal cases have interpreted equality law categories in a similarly wide way on gender issues – see the endnote).[56] More fundamentally, some people will also oppose the direction of travel signalled by the Law Commission, seeing it as reshaping established legal understandings of these issues.

Make it easier to prosecute stirring up hatred

As part of its agenda to secure equal protection across the protected characteristics, the Law Commission also wants to expand the stirring up hatred offences. This is one of the most contentious of its recommendations.  Under the proposals, it would become illegal to stir up hatred on grounds of disability or transgender (or someone’s ‘sex or gender’ more broadly), unlike the current situation.

The Law Commission wants to make it easier to prosecute these offences. It proposes modifying the stirring up offences with a two–limb mechanism, based on intention:

1)      Intent is proven: If it can be shown the defendant intended to stir up hatred, then it would become much easier to secure a conviction. The prosecution would no longer also need to show that the words (or conduct) were threatening, abusive or insulting; the tone of the language would no longer matter.

This would capture scenarios that currently would fall beneath the high threshold for conviction – such as when someone deliberately stirs up religious hatred but avoids using threatening words. The Law Commission gives the example of a Neo–Nazi group spreading the ‘blood libel’ conspiracy, to incite hatred against Jews, but using ‘moderate’ language to do so.[57]

2)      Intent is not proven: If it can’t be proved that the defendant intended to stir up hatred, then a higher bar for conviction would exist. The prosecution would also need to show that the words or conduct used were threatening or abusive (not merely insulting); that hatred was likely to be stirred up; and that the defendant “knew or ought to have known” that their actions were threatening or abusive, and likely to stir up hatred.[58]

This second limb goes further than the current law, because it means someone can be prosecuted for having been likely to stir up hatred on grounds of religion or sexual orientation (or transgender or disability) even if it can’t be proved they intended to do so. This ‘likely to without intent’ limb was one of the issues which generated public criticism of Scotland’s Hate Crime and Public Order Bill. The Scottish government has now said it will revise the Bill, so only those who intend to stir up hatred on grounds of religion or sexual orientation etc will be prosecuted. (In Scotland, the ‘likely to without intent’ limb would only apply for stirring up racial hatred, as is currently the case). 

The Law Commission’s proposals for England and Wales would also make it possible to prosecute organisations “complicit in the distribution of inflammatory material”, even if they had no intention of stirring up hatred. The Law Commission gives a hypothetical example of a religious broadcaster buying in materials from external groups and, by failing to vet the material properly, allowing the transmission of a recording calling for apostates to be killed. The proposals would make the broadcaster liable, as it “ought to have known” that the material was threatening and likely to stir up religious hatred.[59]

It is likely that this would lead to a welcome reduction in the circulation of extreme, violent material, by forcing organisations to vet material more thoroughly. But there’s also a clear danger here of chilling freedom of speech, because such organisations could be discouraged from hosting controversial speakers and material in case it crosses the legal boundary.

What about freedom of speech under the stirring up hatred offences?

This is the critical issue for the stirring up hatred offences: how to balance protecting people from harm (or language we think is so offensive it can be harmful) with protecting free speech. Squaring this circle is ultimately impossible. The Law Commission attempts to do it by extending protections in both directions.

Crucially, it wants to maintain the current free speech exemptions in the stirring up hatred offences. So criticising, insulting or abusing religions and beliefs and their practices remains strongly protected (as does criticising different sexual and marriage practices). This is absolutely crucial for a free society, even though it means we may find ourselves faced with comments we find deeply offensive.

In the interests of fairness, the Law Commission asks the public for its views on whether similar free speech exemptions should be introduced for other protected characteristics.[60] It’s hard to see what exemptions would be needed in the case of disability. But for racial hatred, the Commission suggests explicitly protecting criticism of particular countries or their governments. This suggestion is obviously motivated by the current furore over the intersection of Antisemitism and criticism of Israel, and a desire to spell out explicitly that the latter is not the former.[61]

It’s on trans issues that the Law Commission is most concerned to ensure there are free speech exemptions, since this is one of the most controversial, ongoing areas of public debate today. It suggests there could be explicit free speech exemptions for debate and criticism of things like gender reassignment, differences related to sex or gender, and access to single–sex facilities.[62] This would presumably protect ‘gender–critical’ comments which dispute, for example, that transwomen are women.

If the government adopted these proposals, it would be up to the judges to decide whether a particular statement crosses the line from legitimate (even if offensive) debate about trans issues and attempts to stir up hatred against trans people themselves, in a threatening or abusive way. Where it’s unclear that there is an intent to stir up hatred and to threaten or abuse, it’s likely the judges would err on the side of protecting free speech. As noted above, the judge in the Miller case emphasised the particularly strong legal protections for “political speech and debate on questions of public interest”, which he said included trans issues.[63]

In the Commission’s view, the proposals would amount to a solid protection of free debate on trans issues, while outlawing the most extreme forms of anti–trans speech. But some people will think that any extension of the stirring up hatred offences is overly censorial and chilling of debate – particularly because the free speech exemptions would not resolve the hate incident problem, where people are reported to the police for offensive comments that are not ultimately against the law.

Conversely, and understandably, some trans people will think the Law Commission’s recommendations don’t go far enough in prohibiting speech they find deeply offensive or even denying of their identity. Moreover, it’s difficult to see a government passing legislation explicitly enshrining protection for gender–critical comments; it’s worth noting that Scotland’s Hate Crime and Public Order Bill extends stirring up hatred offences to cover transgender, but does not include a free speech exemption.[64] But not including the free speech exemption would make the law more ambiguous, leaving it more to the courts to decide the limits of debate.

This is a deeply controversial area, and it is quite possible that the government will simply decide to hedge its bets by not legislating at all on stirring up anti–trans hatred. It remains to be seen what will happen.

***

Evidently the proposals will resolve some key issues with the current law. They would remove the disparity among the current protected characteristics, and would close up some of the loop holes. But they won’t resolve other issues. In particular, the Commission doesn’t provide a satisfactory solution to the ‘hate incident’ problem, where police investigate alleged crimes which turn out not to be crimes at all, and which risk chilling free, lawful speech. The Commission says that how the police implement the law was outside the remit of its review.[65] But whether or not the proposals are taken forward, there needs to be much clearer guidance available for the public about which kinds of statements are unlawful, and which are not. We must protect our right to speak freely within the law, even if that causes offence. 

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