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Punish criminals for their actions, not their thoughts

Hate crime laws have made the punishment of thoughtcrime a reality.

Jon Holbrook

Topics Politics

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In recent years, a new class of criminal offence has come to the fore in the UK: hate crime. This is a crime defined not by what the offender does but by his beliefs and thoughts while doing it.

Until recently, hate crimes were limited to the intentional stirring up of racial hatred, a crime dating back to the Race Relations Act 1965. But since 2001, more characteristics have been protected by the criminal law: religion in 2001, sexual orientation and disability in 2003, and transgender in 2012. So there are now five characteristics recognised and protected by the law.

Each act of parliament recognising a new characteristic is met with a claim for recognition of another characteristic. Comedian Rowan Atkinson even jokingly suggested that future legislation could be extended to outlaw hatred directed at ‘people with big ears’. Still, a serious case could be made for protecting women, the elderly and fat people, or sub-cultures like Goths. In 2003, Viscount Colville proposed an amendment in the House of Lords that would protect persons who were targeted on the basis of race, religion or ‘other identifiable characteristics’.

These claims for further protections are merely direction-of-travel arguments. And here’s the problem: the criminal law has been travelling in the wrong direction for too long. The hate-crime reforms over the years have seen one pragmatic but erroneous exception to principle after another, each one justified by the previous ones. If race, why not religion? And if race and religion, why not race, religion and sexual orientation? The principle upon which hate-crime legislation is based remains stubbornly unquestioned.

So it ought to come as good news that the body charged with keeping the law under review, the Law Commission, has opened a consultation about hate crime. Yet what should be an opportunity for people to question the current direction of travel is no such thing. The government has required the Law Commission to avoid all questions of principle. The thrust of the consultation is simply: if race, religion and sexual orientation, then why not race, religion, sexual orientation and disability and transgender?

The consultation is concerned with the detail of existing hate crime, and in particular, its three-level application: specific hate crimes; crimes that are aggravated by hate; and enhanced sentencing on the basis of an offender’s hate.

These effectively refer to the levels of offence, aggravation and sentence. The Law Commission’s consultation is directed at an inconsistency: namely, the fact that the five protected characteristics are all recognised at the level of sentencing, but sexual orientation, disability and transgender are not recognised at the level of offence (that is, they do not have their own hate-crime offence). And disability and transgender cannot give rise to offences with aggravating features.

Over the course of 305 pages, the Law Commission notes the differences between these three levels of protection. The purpose of this, as Law Commissioner Professor David Ormerod QC states, is to ‘look at options for reform that would bring consistency’. But ‘consistency’ is not a meaningful legal principle. If hate crimes are wrong in principle, then developing them consistently at each of the three levels is only going to make a bad situation worse.

The UK government could have allowed the Law Commission to open a debate about whether hate crimes are desirable at all. But it has expressly ruled such a discussion off limits. The title of the consultation says it all: Hate crime: The Case for Extending the Existing Offences. It stipulates that the commission’s ‘focus is solely to examine the case for extension of the existing statutory regimes to those five protected characteristics’.

For those interested in a wide-ranging debate about hate crime, this fundamental fact needs to be grappled with: hate crime is about policing people’s beliefs and thoughts. Whichever level of hate crime is engaged (offence, aggravation or sentencing), the thrust of a hate crime is that the offender is punished for behaviours that stem from his beliefs and thoughts.

This raises two problems: first, why is a crime committed with a mind full of racial hatred or homophobia worse than a crime committed out of greed, vengeance or sheer wanton malice? Proponents of hate crime usually point to the social harm caused by racism or homophobia, etc. This is unconvincing and is difficult to square with the fact that hate-crime protections have expanded as hatreds towards the target groups have decreased across society.

But the alleged concern with social harm draws attention to the second problem with hate crime: the proper limits of criminal law. In short, parliament should not enact crimes or pass sentences that are motivated by a desire to make people hold different beliefs and thoughts. Freedom of speech and conscience, and the ability to act on those beliefs, should not be curtailed unless, to use John Stuart Mill’s classic statement of liberalism, it is for self-protection or to prevent harm to others.

Take the recent case of Jacqueline Woodhouse, who became notorious in 2012 after her seven-minute racist rant on a late-night tube train went viral on YouTube. Among her profusion of swear words were insults like ‘you Africans take our council flats’ and ‘our country has been overtaken by people like you’. Woodhouse was so drunk she could not remember the incident but, after recognising herself on YouTube, she handed herself into the police. She pleaded guilty to racially aggravated harassment and was jailed for 21 weeks.

Woodhouse was imprisoned for expressing her thoughts. No doubt many would find her views wrong, vile even, but is it the role of the criminal-justice system to police her views? The victim, Galbant Singh Juttla, thought so. He claimed he found the incident ‘very distressing’. But since he sat opposite arguing with her, while collecting evidence for a criminal prosecution, this merely shows the convenience of the word ‘distress’ as a hook on which to hang a hate crime. Neither of Mill’s tests – of self-protection and harm to others – were satisfied.

Not all hate crimes involve drunks venting their spleens on late-night tube trains. Some are far more serious. The racist murder of Stephen Lawrence in 1993, for instance, did much to prompt hate-crime legislation. In 2011, five thugs were jailed for the torture and murder of a disabled woman, Gemma Hayter, who they beat, stabbed, suffocated and forced to drink urine. But in these cases, Mill’s tests of self-protection and harm were clearly satisfied, which shows that the criminal law could deal adequately with the offenders without concerning itself with their beliefs and thoughts about race or disability. The killers of Stephen Lawrence and Gemma Hayter should be imprisoned not because of their beliefs and thoughts, but because they committed murder.

And that’s the problem with hate crime as a category: it allows the state to prosecute people on the basis of their thoughts, not their actions. Like George Orwell’s notion of ‘thought crime’, hate crime allows the authorities to police what’s in people’s heads.

In his book, The Enforcement of Morals (1959), Patrick Devlin, better known as Lord Devlin, noted the distinctions between crime and sin, and crimes and morals. He warned that if these distinctions were elided then new offences would be ‘too often made on the simple principle that “there ought to be a law against it”’. His views fed into the famous debate that Devlin had with Professor HLA Hart on the role of the criminal law in enforcing moral norms (against a background of legalising homosexuality). It’s time for another debate about the role of the criminal law in enforcing moral norms and the ‘right’ kind of thoughts and beliefs. Sadly, the Law Commission consultation paper has not started it.

Jon Holbrook is a barrister in London. Follow him on Twitter @JonHolb.

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Topics Politics

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