The meaning of “threatening, abusive, or insulting” is not defined in the legislation. The meaning is likely to be interpreted by the courts in the same way that they interpret the phrase “threatening, abusive, or insulting” for the Intentional Harassment, Alarm and Distress under Section 4A Public Order Act 1986. Please see the Public Order guide for more guidance on what these words mean.
In a 1973 case, the United Kingdom’s highest court ruled that “insulting” should be given its “ordinary meaning” – and whether words or behaviour is insulting is a question to be determined on a case-by-case basis by a jury. The same approach applies to the words “offensive” and “abusive”. Where swear words are coupled with racial slurs, it seems that this is “almost undeniably abusive” (see Director of Public Prosecutions v Humphrey (2005)).
Possession of racially inflammatory material
A person who has in their possession written material or a recording of sounds or visual media which is threatening, abusive or insulting commits an offence if they intend to distribute, publish, show, or display the material, and they intend to stir up racial hatred (or such stirring up is likely) in so doing. It is a defence to this crime if the accused is not aware they have the material in their possession and had no reason to suspect it was threatening, abusive, or insulting.
If a police officer has reasonable grounds for believing racially inflammatory material will be found at certain premises, a magistrate can issue a warrant for the search those premises.
Religious hatred and hatred on grounds of sexual orientation
It is an offence under Section 29B of the Public Order Act 1986 for an individual to use threatening words or behaviour, or display any written material which is threatening, that is intended to stir up hatred on the grounds of religion or sexual orientation.
Hatred on sexual orientation grounds is defined in the legislation as “hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both”, (Public Order Act 1986, Section 29AB). Religious hatred is defined in the legislation as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”, (Public Order Act 1986, Section 29A).
It is important to note that the offences related to hatred of religious groups or sexual orientation are more narrowly defined than racial hatred offences in two specific ways.
First, unlike racial hatred offences, offences related to hatred of religious groups or on sexual orientation grounds apply only where the words, images or conduct are “threatening”. No offence is committed by using words, images or behaviours that are merely insulting or abusive. An act is likely to be considered “threatening” if it is clearly intended to place people in fear for their safety or wellbeing. Words or actions that are intended or likely to upset, shock or offend are unlikely to count as “threatening”.
Secondly, a person must intend to stir up religious hatred or hatred on sexual orientation grounds. The mere likelihood that a person’s act might stir up hatred, or even the fact that it did, is not sufficient for a conviction in respect of religion and sexual orientation.
The fact that only threatening conduct that is intended to stir up hatred on the grounds of religion or sexual orientation is criminalised means that a narrower range of conduct is prohibited on these grounds, and, conversely, a broader range of conduct is prohibited in the context of race. Regardless, if it can be shown that a person intended to stir up hatred on the grounds of religion or sexual orientation by doing any of the following, their behaviour will be a crime unless a defence applies:
- Using threatening words or behaviour
- Displaying, publishing, or distributing written material which is threatening
- Public performance of a play involving the use of threatening words or behaviour
- Distributing, showing, or playing a visual or sound recording which is threatening
- Broadcasting a programme involving threatening visual images or sounds