Incitement to racial hatred has no place in a civilised society, says Geoffrey Bindman
The Race Relations Act 1965 created a new criminal offence: inciting racial hatred. Threatening, abusive, or insulting speech or behaviour intended to stir up racial hatred became punishable by imprisonment and has remained so. In 1976 the need to prove intention was relaxed and the crime was anachronistically transferred to the Public Order Act 1936, s 5A.
Prosecutions have to be brought by or with the consent of the attorney general. The Race Relations Board and its successor—the Commission for Racial Equality (CRE)—reported many examples of grossly inflammatory racist material. As legal adviser to these bodies I attended meetings with more than one attorney general. They had little appetite for prosecution. I recall Sir Michael Havers arguing that it would be counter-productive: those accused would become martyrs; public sympathy would flow in their direction.
In May 1986 a particularly obnoxious case came my way. I was instructed not by the CRE but by the Arab League. Four years earlier, on 17 April 1984, a policewoman, Yvonne Fletcher, had been murdered by shots fired from the Libyan People’s Bureau in St James’s Square in central London. The staff of the bureau refused to identify or surrender the culprit. They were expelled and diplomatic relations with Libya broken off.
In January 1986, it became known that one of the bureau’s staff had been allowed back into Britain on compassionate grounds. The Sun reported this on its front page with the headline “Arab Pig Sneaks Back” The Press Council rejected a complaint that this was “racist and insulting”. Noting that it referred to one specific individual, they concluded that it was merely “intemperate”.
blatant incitement
Exulting in its exoneration, The Sun on 15 May published a cartoon by Franklin depicting a group of pigs approaching the gates of Fortress Wapping. A security guard was saying to his mobile phone: “Trouble, now the pigs object to being called Arabs.” This was plainly a smear on Arabs in general.
I wrote to Havers, inviting him to prosecute for what seemed blatant incitement. I feared he might not agree. His legal secretary, D N Kirk, informed me that the director of public prosecutions had been asked to investigate. Over the next few weeks Kirk kept in touch: the police were conducting interviews; the opinion of counsel was being obtained; and the papers were being prepared for the attorney general to make his decision.
On 30 July, Kirk rang me with the glad tidings that Havers had decided to prosecute. The decision was confirmed in a formal letter the next day. A chief inspector from Scotland Yard rang me to make arrangements to see the director of the Arab League, from whom he needed a formal statement.
The Observer got wind of the impending prosecution and published a brief report on 10 August.
sudden reversal
Two days later another letter arrived from Havers’s office enclosing a copy of a letter to The Sun “clarifying the situation”. It referred to a call from The Sun on the day of The Observer report. Contrary to that report, and Kirk’s several communications, the letter claimed that no final decision had yet been made—it would be made only after a further police report had been received.
On 22 August I received a letter from a different legal secretary, Juliet Wheldon, (later Dame Juliet QC and treasury solicitor) telling me that the attorney general had now decided that proceedings against The Sun would not be appropriate. What had caused this sudden reversal?
I was deeply suspicious. I discovered that the great fixer of our profession, Lord Goodman, had intervened on behalf of The Sun’s proprietor. Goodman’s sinister influence was reputed to come from his knowledge of potentially embarrassing details of the private lives of the rich and powerful—but the displeasure of his client could have been enough to sway the government.
My clients were furious. Havers told the House of Commons that his final decision not to prosecute was taken “on the basis of all the relevant circumstances including as one—I stress one—of the factors, a mistake in my department which arose from a misunderstanding between myself and an official and led to the complainants being wrongly informed that I had decided to prosecute. The true position was I simply wished police enquiries to be made”. This made no sense. The only relevant facts were the cartoon itself and its publication to millions of The Sun’s readers. Nor was the outcome of the “police enquiries” ever revealed.
Belatedly the Press Council had second thoughts, finding The Sun guilty of an “ugly piece of racism”, but it had no power to impose any sanction.
inefficient legislation
I believe The Sun should have been prosecuted, but it would be hard to maintain that this law is an efficient instrument or that it has wide public support. In the last 20 years there have been a few more prosecutions, but attorney generals since Havers have shown little more enthusiasm for this law than he. When the government recently proposed prohibiting incitement to religious as well as to racial hatred, its Bill was watered down in the House of Lords before the Racial and Religious Hatred Act 2006 (RRHA 2006) finally reached the statute book.
RRHA 2006 prohibits only “threatening” behaviour and there are explicit safeguards in the interests of freedom of speech for discussion and criticism—and even dislike, ridicule, insult or abuse—of particular religions or their beliefs or practices.
Prosecutions are likely to be rare and recent experience of prosecutions for racial incitement show how difficult it is to secure a conviction. Last year a jury failed to convict leaders of the British National Party for inflammatory statements secretly recorded by a BBC journalist.
It is right in a civilised society that inciting hatred of people for no other reason than their ethnic or religious identification should not be tolerated. As a practical means of curbing such anti-social behaviour the present law has had little effect. It is ripe for review.
