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Free speech & the law: “Hate Speech” & Non-Discrimination

28 Jan 2020 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

UK and European law allows free speech to be limited to protect people from suffering abuse on account of who they are. The criminal law and civil law in the UK have developed in such a way as to protect different characteristics differently. This guide will explore the laws that protect citizens against incidents of discrimination and hate in England and Wales that are most likely to encroach on an individual’s free expression rights. We also look at discrimination law, a type of non-criminal law, providing people with the means to sue individuals or organisations who discriminate against them because of certain “protected characteristics”.

Hate Crimes

Hate crimes are generally understood to involve someone committing a crime who, in the course of doing so, demonstrates or is motivated by hostility towards someone based on certain characteristics. The UK’s criminal law currently responds to hate crime in three main ways:

Criminalising conduct, including expression, that is intended or likely to “stir up hatred” on grounds of race, or is intended to do so on grounds of religion or sexual orientation.
Creating separate “aggravated offences” for specific crimes which demonstrate or are motivated by hostility towards a person’s race or religion.
Giving courts greater sentencing powers if in committing the crime the perpetrator was motivated by hostility towards a person’s race, religion, sexual orientation, disability, or transgender status.

The police and Crown Prosecution Service record data on hate crimes for five protected characteristics: race, religion, sexual orientation, transgender status, and disability. However, as may be noted from above, there is inconsistency in the way these five characteristics are treated in the law. Other characteristics, such as gender and age, are not specifically protected by the criminal law. For example, there is no offence of stirring up hatred on the grounds of someone’s disability. The Law Commission (the statutory body in charge of reviewing the UK’s laws) is currently undertaking a review of the protections offered by hate crime legislation.

Discrimination Law

The Equality Act 2010 protects a greater range of characteristics than the hate crime legislation. The act protects people from discrimination (less favourable treatment) on grounds of their age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, or sexual orientation. It enables private individuals to sue a person or organisation for discriminating against them on the protected grounds in various contexts, including in employment (including from the application and recruitment stage), in the provision of services, and in education. If the court finds discrimination has occurred, then it can award damages (including for injured feelings), or order an injunction or declaration.[/vc_column_text][vc_column_text css=”.vc_custom_1580136685403{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

The difference between civil proceedings and criminal prosecutions

Since crimes are viewed as harmful not only to individuals but also to communities, they are pursued and punishable by the state through the criminal justice system. Criminal prosecutions in England and Wales are pursued by government lawyers working for the Crown Prosecution Service, known as prosecutors. They are tasked with delivering justice for and on behalf of their communities and upholding the rule of law (the idea that a state should be governed by law, not the arbitrary decisions of individual government officials).

Prosecutors must identify cases that are worth pursuing in court, and conduct the case in court. In identifying cases to pursue, prosecutors must ensure the case has enough evidence, and that it is in the public interest to pursue it. Prosecutors will work closely with the police to build their case since the police will usually hold much of the evidence about a case. If a person is found guilty of a crime, they will usually undergo some sort of punishment, which could include prison time and/or a fine, and they may have to pay compensation to the victim.

Civil court proceedings are brought by private individuals. There is no state body pursuing these proceedings on behalf of individuals, even though the harmful act might be considered to be harmful to the community at large. The civil courts do not imprison people, but they can award compensation to the injured party (in the form of damages) and make public declarations (for example, that an act by a public body was illegal), and order people to do or refrain from doing certain acts. People pursuing civil proceedings will usually have to pay for their legal assistance, although they might receive legal aid, which will help pay for their legal costs, and if they win their case, they may have their legal costs paid for by the losing party.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”hs2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. What does international law say about hate crimes?” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The UK ratified the International Covenant on Civil and Political Rights (ICCPR) in 1976. This is an international human rights treaty requiring the UK to respect and protect many human rights. Article 19 of the ICCPR sets out the right to freedom of expression, which includes the “freedom to seek, receive and impart information and ideas of all kinds”. However, the right may be restricted to respect the “rights or reputations of others”.

Article 20(2) of the ICCPR states:

“Any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Article 4 of the Convention on the Elimination of Racial Discrimination, which the UK ratified in 1969, states:

“States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin…and:

(a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts.”

The UN Special Rapporteur on freedom of expression issued guidelines on Article 19(3) of the ICCPR (restrictions on freedom of expression) in 2001. Regarding hate speech, these stated:

“The Special Rapporteur is aware of, and concerned by, the potential harm, whether psychological or physical, which can result from hate speech, in particular incitement to violence, heightened tensions between groups of different cultural, ethnic, racial and religious identities and the perpetuation of stereotypes.

In light of these concerns, the SR recognises that hate speech calls for reasonable restrictions which are necessary to prevent incitement to acts of imminent violence, hatred or discrimination on grounds, among others, of race, religion, colour, descent, or ethnic or national origin.

At the same time, the SR expresses concern about the possibility of such prohibitions being abused, particularly where respect for human rights and the rule of law is weak and hate speech laws have been used in the past against those they were intended to protect.”

The Special Rapporteur recommended that any law prohibiting so-called hate speech should, at a minimum, conform to the following:

No one should be penalised for true statements;
No one should be penalised for the dissemination of hate speech unless it has been shown that the perpetrator had the intention to incite discrimination, hostility, or violence;
The right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance;
No one should be subject to prior censorship;
Sanctions imposed by courts must be proportionate;
Crimes interfering with free expression rights must be narrowly defined in clear terms.

The treaty obligations set out in the ICCPR and the Convention on the Elimination of Racial Discrimination are duties with which the UK has agreed to comply. The Special Rapporteur’s guidelines outline how the UK should comply with its obligations under the ICCPR.[/vc_column_text][vc_custom_heading text=”The European Court of Human Rights & The Human Rights Act” use_theme_fonts=”yes”][vc_column_text]The European Court of Human Rights has the power to review the UK’s laws and government actions and determine whether it has acted in accordance with human rights law. The European Court of Human Rights has considered a number of cases from the UK concerning people who were convicted of criminal offences over speech inciting hatred based on prejudice against a particular group.

The court has tended to rule that convictions for such speech do not violate a person’s free expression rights under Article 10 of the European Convention on Human Rights (ECHR). That is because, first, such expression goes against the ECHR’s core values of tolerance, social peace, and non-discrimination. These types of claims are therefore usually blocked by Article 17 of the ECHR, which says that nothing in the ECHR can be interpreted as giving a person a right to engage in activities “aimed at the destruction of any of the rights and freedoms” in the ECHR. Secondly, the court has often found that restrictions on free speech rights are justified on one of the grounds set out in Article 10(2) of the ECHR.[/vc_column_text][vc_column_text]

Restrictions on free expression

Article 10(2) of the European Convention on Human Rights (ECHR) says that the right to freedom of expression “carries with it duties and responsibilities”. Because of this, the right to free expression may be subject to restrictions and conditions that are necessary in a democratic society and are set out clearly in the law. Any restrictions must be for one or more of the following purposes: national security, public safety, territorial integrity, preventing crime or disorder, protecting health or morals, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary.

Article 17 of the European Convention on Human Rights states: “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”[/vc_column_text][vc_column_text css=”.vc_custom_1580137953168{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Norwood v. United Kingdom

Mark Norwood was a regional organiser for the extreme right-wing political group, the British National Party. In 2003, he tried to persuade the European Court of Human Rights that it should support his right to freedom of speech by letting him put up a poster in his living room window, with an image of the Twin Towers in flames and the words “Islam out of Britain – Protect the British People.” It also featured a symbol of a crescent and star (a symbol associated with Islam) in a prohibition sign.

Norwood had been convicted of an offence under Section 5 of the Public Order Act 1986 (discussed below) as aggravated by Section 31 of the Crime and Disorder Act 1998, which together criminalise displaying, with hostility towards a racial or religious group, any writing, sign or other visible representation which is threatening, abusive or insulting, within the sight of a person likely to be caused harassment, alarm or distress by it. Norwood was fined £300. He appealed his conviction to the High Court, which dismissed his appeal. Lord Justice Auld held that the poster was “a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people.”

Norwood then took his case to the European Court of Human Rights in Strasbourg, arguing that his conviction violated his right to free expression under Article 10 of the ECHR.

He argued, quoting a judgment in a previous freedom of speech case, that “free speech includes not only the inoffensive but also the irritating, contentious, eccentric, heretical, unwelcome and provocative, provided that it does not tend to provoke violence.” Norwood also argued that “criticism of a religion is not to be equated with an attack upon its followers” add said he lived in a rural area and did not think any Muslim person had seen the poster.

The court did not agree and the case was declared “inadmissible”. They looked to Article 17 of the ECHR, which they said was designed to prevent people with “totalitarian aims” of exploiting the human rights in the ECHR “in their own interests”. They said Norwood’s poster:

“amounted to a public expression of attack on all Muslims in the United Kingdom. Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination.”

Since Norwood’s display of the poster was an “act aimed at the destruction” of ECHR rights, it was contrary to Article 17 ECHR and it was not protected by Article 10.

When UK courts are deciding on human rights issues, the Human Rights Act says they must “take into account” any judgments handed down by the European Court of Human Rights. There have been various debates about what “taking into account” really means, but the upshot is that what the European Court of Human Rights says on human rights issues is very impactful. It means that courts in England and Wales will generally adopt the approach taken by the European Court of Human Rights unless there is a good reason not to.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”hs3″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”3. Hate crimes explained” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]

Stirring up hatred on racial, religious, or sexual orientation grounds

UK law criminalises conduct that is likely or intended to “stir up” racial hatred, or that involves threatening behaviour that is intended to stir up hatred on grounds of religion or sexual orientation.

“Conduct” includes the use of hateful words, but also a broad range of expression, such as displays of text, books, banners, photos and visual art, the public performance of plays and the distribution or presentation of pre-recorded material. In all three cases, a magistrate can grant the police a warrant to enter and search premises to locate any material that incites hatred on racial, religious or sexual orientation grounds.

Acts intended or likely to stir up racial hatred

The offence of stirring up racial hatred, located in Section 18 of the Public Order Act 1986, is set out below:

A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—
a) he intends thereby to stir up racial hatred, or
b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

The patchwork history of the “stirring up” offences

The “stirring up” offences were established in the wake of decades of efforts to challenge discrimination in the UK. The offence of incitement to racial hatred was originally enacted in the Race Relations Act 1965 before migrating to the Public Order Act 1986. It was joined by the new offences of incitement to religious hatred in 2006, and incitement to hatred on sexual orientation grounds in 2008. The legislation has developed in a piecemeal way, and as barrister Ivan Hare QC points out, “[i]n the course of the debates about the introduction of each of these offences, no coherent account has been given as to why protection against incitement to hatred should be confined to the three characteristics of race, religion and sexual orientation.”

The passage of the Racial and Religious Hatred Bill in 2006, which introduced the new offence of inciting religious hatred, was particularly controversial. The offence was introduced largely to offer greater protection to Muslims in the wake of reprisals after the September 2011 attacks in 2001. However, broadcasters, authors and a range of other secular and non-secular groups expressed concerns the offence would limit their free speech rights. The then Executive Director of the National Secular Society argued the “inevitable consequence of this proposed legislation would be to protect religious dogmas and beliefs from insult and mockery.”

English PEN and a number of free expression groups lobbied for further amendments to protect free speech from inappropriate use of the act.[/vc_column_text][vc_column_text css=”.vc_custom_1580138359641{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

The PEN amendment

Section 29J of the Public Order Act 1986 (the so-called “PEN amendment”) states that the rules on public order must not be applied “in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system”.[/vc_column_text][vc_column_text]

How do the stirring up offences work?

Racial Hatred

Racial hatred is defined in the Public Order Act 1986 as “hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.” Sections 18 to 23 of the Public Order Act 1986 set out several specific acts where racial hatred is likely to be stirred up. The following acts are therefore crimes, if (and only if) by doing them, the perpetrator intends to stir up racial hatred, or, given all the circumstances, the act is likely to stir up racial hatred:

Using threatening, abusive, or insulting words or behaviour
Displaying, publishing, or distributing written material which is threatening, abusive, or insulting
Public performance of a play involving the use of threatening, abusive, or insulting words or behaviour
Distributing, showing, or playing a visual or sound recording which is threatening, abusive, or insulting
Broadcasting a programme involving threatening, abusive, or insulting visual images or sounds

The term “written material” refers to “any sign or visible representation” and therefore includes imagery, paintings or other forms of physical artistic expression.

Remember that to be a criminal offence, the perpetrator must have acted with intent to stir up racial hatred, or it must have been likely that their action(s) would have caused racial hatred to be stirred up. For the offence of using words or behaviour that are threatening, abusive, or insulting, the alleged offender has a defence if:

It cannot be proven that their actions were intentionally threatening, abusive or insulting and the accused was not aware they might be so received;
It can be proven that the action took place inside a private dwelling and that the accused had no reason to believe that their words or actions would be heard or seen by persons outside it.

[/vc_column_text][vc_column_text css=”.vc_custom_1580138478458{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Inciting racial hatred

Lawrence Burns was a member of National Action, a far-right neo-Nazi terrorist organisation based in the UK. He operated a Facebook account under an alias, onto which he posted virulently racist updates, comments, and links, aimed primarily at Afro-Caribbean and Jewish communities. His messages promoted militant action against them, with the aim they should be eliminated, to make way for “an advanced warrior race consisting of white men and women”. Material found on Burns’ laptop showed material that extolled Adolf Hitler as “the ultimate being” and which expressed other anti-Semitic views. He was charged with stirring up racial hatred by publishing written material, contrary to Section 19(1) of the Public Order Act 1986 (count 1).

In May 2015, Burns made a speech during a demonstration staged outside the United States embassy in London. He said that non-white immigrants were “rapists, robbers, and murderers” and Jewish people were “parasites and bankers” who wanted to create a “mongrelised” race. The speech was filmed and posted on YouTube. For this, Burns was charged with stirring up racial hatred through words or behaviour, contrary to Section 18(1) of the Public Order Act 1986 (count 2).

Burns’ defence was that his Facebook comments were intended to be “private banter” and his speech – while not private banter – was not intended to stir up racial hatred and was not likely to do so. The jury found him guilty on both counts.

Burn’s four-year sentence was cut following an appeal, although appeal court judge Mr Justice Phillips noted : “whilst freedom of speech is a fundamental freedom of our society, [Burns’] conduct in this case went far beyond what was regarded as acceptable. It was designed publicly to promote racial hatred, to mobilise the applicant’s listeners, and to encourage them to move from ideas into action.”[/vc_column_text][vc_custom_heading text=”Insulting, threatening and abusive” font_container=”tag:h3|text_align:left” use_theme_fonts=”yes”][vc_column_text]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

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Discussion of marriage and sexual practice is not a hate crime

The Public Order Act 1986 provides that the discussion or criticism of “marriage which concerns the sex of the parties to marriage” and “sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices” shall not be taken of itself to be threatening or intended to stir up hatred.

This provision seeks to ensure that views critical of same-sex marriage or sexual conduct generally are not criminalised under the hate offences.[/vc_column_text][vc_custom_heading text=”Religious and racially aggravated offences” use_theme_fonts=”yes”][vc_column_text]The Crime and Disorder Act 1998 introduced a new series of “racially or religiously aggravated” crimes. These are the existing crimes such as assault or damage to property, but which are perceived to be motivated by hostility or prejudice based on a person’s race or religion (or perceived race or religion). They carry higher sentences than the underlying crimes.

In addition to higher sentences for the specific racially or religiously aggravated crimes, Section 145 of the Criminal Justice Act 2003 provides for increased sentences for any other crimes that are found to be racially or religiously aggravated. If the offence was racially or religiously aggravated, the sentencing judge must say so in open court and take that factor into account when handing out a sentence. It is the sentencing judge’s decision by how much (if any) to increase a sentence if there is found to be a religious or racial aggravation.

Section 146 of the Criminal Justice Act 2003 applies if the perpetrator of an offence was motivated by hostility based on a person’s sexual orientation, disability, or status as a transgender person. The court must treat that motivation as an aggravating factor for the purposes of imposing an appropriate sentence.

Racially or religiously aggravated Public Order offences

Certain public order offences can be racially or religiously aggravated. These offences are explained more fully in our Public Order guide. These offences criminalise certain types of speech, written material, and behaviour, and so may have free speech implications. It is worth noting, however, that the European Court of Human Rights has consistently ruled that expressions of religious and racial hate are not protected by Article 10 of the ECHR because they are incompatible with the convention’s fundamental values, including tolerance, social peace, and non-discrimination.

The racially or religiously aggravated public order crimes include:

Fear or Provocation of Violence – Section 4 – Public Order Act 1986

Using threatening, abusive, or insulting words or behaviour in such a way as to make a person think unlawful violence will be used against them imminently or to provoke violence.
Distributing or displaying material which is threatening, abusive, or insulting in such a way as to make a person think unlawful violence will be used against them imminently or to provoke violence.

If charged as a “racially or religiously aggravated” crime, this offence carries a maximum penalty of two years’ imprisonment and a fine. Without aggravation, the maximum sentence is six months imprisonment and a fine.

Intentional Harassment, Alarm or Distress – Section 4A – Public Order Act 1986

Using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
Displaying material which is threatening, abusive, or insulting.

With the intent and result of causing someone alarm, harassment, or distress.

A person has a defence if they were inside a dwelling and had no reason to believe their words or material would be seen or heard by someone outside. They also have a defence if they can argue their conduct was “reasonable.”

Similar to the above, the maximum sentence for this racially or religiously aggravated offence is two years’ imprisonment plus a fine.[/vc_column_text][vc_column_text css=”.vc_custom_1580141532049{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Racially aggravated intentional harassment

John Keogh, 74, told an Afro-Caribbean member of staff in a south London betting shop that “When Brexit comes you will be gone” and he used a racist slur against her. Keogh was apparently angry that his winnings had been placed on the counter and not in his hand. Keogh pleaded guilty to the racially aggravated charge of using threatening, abusive, and insulting words with intent to cause alarm, distress, and harassment contrary to Section 31(1)(b) of the Crime and Disorder Act 1998 and Section 4A of the Public Order Act 1986. He was ordered to pay £600 in legal costs and compensation and was given a 10-week 8pm to 6am curfew as part of a community order.[/vc_column_text][vc_column_text css=”.vc_custom_1580140834150{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Harassment because of someone’s sexual orientation

In July 2019, a 38-year-old woman was arrested under Section 4A of the Public Order Act 1986 for shouting homophobic abuse at people taking part in a Pride march in London. Footage posted on social media showed the woman, who was wearing a black niqab, shouting “shame on you” to participants – one of whom was wearing a rainbow flag – passing by. She also shouted “God created Adam and Eve, not Adam and Steve. Shame on you, shame on all of you. Shame on you, you despicable people.”

Although the Crime and Disorder Act 1998 did not create a specific aggravated public order offence on grounds of sexual orientation, the police can charge this individual with a (non-aggravated) Section 4A intentional harassment charge. If she is found guilty, and the court also thinks she was motivated by hostility towards the victims’ perceived sexual orientation, then under Section 146 of the Criminal Justice Act 2003, the court will have to treat that as an aggravating factor for sentencing.[/vc_column_text][vc_column_text]

Harassment, Alarm or Distress – Section 5 – Public Order Act 1986

Using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
Displaying material which is threatening, abusive, or insulting

Within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Where the offender and the victim are both inside a dwelling, no offence is committed. The offender may also have other defences such as being inside a dwelling and having no reason to believe anyone would hear or see his conduct, or that the conduct was “reasonable.”

When charged as a racially or religiously aggravated offence, the maximum sentence is a fine. A lesser fine can be imposed if the offence is not racially or religiously aggravated.[/vc_column_text][vc_column_text]

Where will a criminal trial for stirring up hatred take place?

Criminal trials in England and Wales take place either in the Crown Court or the magistrates’ court. The more serious crimes take place in the Crown Court and are called “indictable” offences. The less serious crimes take place in the magistrates’ court are “summary” offences. The “incitement to hatred” crimes are known as “either-way” offences, meaning trials can take place either in the Crown Court or the magistrates’ court. There will be a court hearing to decide where the trial will take place. If convicted of a summary offence, the perpetrator of a racial incitement crime may face up to six months’ imprisonment (or twelve months for hatred on grounds of religion or sexual orientation), a fine or both. The more serious indictable offences will be tried by a jury, but on conviction, offenders face up to seven years’ imprisonment, a fine or both. All prosecutions must be approved by the Attorney General (the government’s chief law officer).[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”hs4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Discrimination” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]

The Equality Act 2010

The Equality Act 2010 prohibits discrimination, both by public bodies or private individuals (including companies and organisations), based on certain characteristics. The prohibited conduct defined in the Equality Act 2010 includes direct and indirect discrimination, as well as harassment and victimisation. The Equality Act 2010 does not create criminal offences – it gives people the ability to sue another person for discriminating against them. Breaches of the relevant provisions can only result in declarations or mandatory orders and the award of damages.

The Equality Act 2010 prohibits discrimination on the grounds of one or more of nice “protected characteristics”. These are:

Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation

Under the act, discrimination involves treating someone less favourably than others because of their protected characteristic. It also includes applying a discriminatory practice against someone, which puts them at a disadvantage because of their protected characteristic. Harassment entails engaging in “unwanted conduct” relating to a protected characteristic, with the effect of violating a person’s dignity or creating an intimidating or hostile environment for them. Victimisation is where a person is the subject of reprisals for bringing or assisting with an Equality Act claim.

Overview of types of discrimination under the Equality Act 2010

Direct discrimination
- Treating someone less favourably because of a protected characteristic
- Indirect discrimination
- Applying a practice or policy that puts a person at a disadvantage because of their protected characteristic
Harassment
- Engaging in unwanted conduct related to a protected characteristic with the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them
Victimisation
- Subjecting someone to a detriment because they pursued or assisted with civil proceedings under the Equality Act 2010

In a civil case under the Equality Act 2010, the judge will determine, looking at all the evidence, whether it is more likely than not that the alleged perpetrator discriminated against the claimant (in any of the ways listed in the Act). If so, they may make the perpetrator pay compensation to the injured party, or order them to do something or refrain from doing something.[/vc_column_text][vc_column_text css=”.vc_custom_1580141438478{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #891c39 !important;}”]

Case study: Social work student unfairly expelled from course

A man who was expelled from a university social work course after a series of Facebook posts in which he called homosexuality as a ‘sin’ and ‘wicked’ won an appeal against the decision to remove him.

The Court of Appeal ruled that the process used by the University of Sheffield process to remove devout Christian Felix Ngole from the MA in social work course “flawed and unfair” to him.

This court ruled the decision was a disproportionate restriction on Ngole’s freedom of expression.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

Free speech & the law: Child Protection

22 Jan 2020 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

[vc_row][vc_column][vc_column_text css=”.vc_custom_1579268532812{margin-bottom: 30px !important;background-color: #f5f5f5 !important;}”]Please note: This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exist for free speech and where the law currently permits restrictions.[/vc_column_text][vc_column_text]This guide is available to download as a PDF here.[/vc_column_text][vc_single_image image=”112028″ img_size=”large” add_caption=”yes” alignment=”center”][vc_raw_html]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[/vc_raw_html][vc_custom_heading text=”1. Child protection offences explained” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes” el_id=”ct1″][vc_column_text]Child protection is a sensitive area of law and a deserved focus of public concern.

As there is no clear legal definition of the concept of indecency, and because of the sensitivity of the matter, decisions made by the police and the Crown Prosecution Service (CPS) can be subjective and inconsistent, and in the wrong context can seriously compromise freedom of expression rights. For that reason, it is important to be aware of the legal framework and, if you are concerned that your artistic work, journalistic work or other projects or behaviour will be scrutinised under child protection laws, to take practical preparatory steps at an early stage.

The offences set out in law cover a broad spectrum of behaviour. If someone makes, displays or possesses images of children that could be considered to be indecent, obscene or pornographic, it could be a serious criminal offence. The circumstances or motivation of a defendant are not relevant to determining whether or not the image is indecent. It is for a jury to decide whether or not images are indecent, by asking whether the images offend based on recognised standards of propriety. Information about an investigation, an arrest and a prosecution can be kept and may be legally disclosed to others by police in certain circumstances. Convicted people may be treated as sex offenders depending on the seriousness of the charges.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. Overview of UK laws” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The UK laws that can be used to prosecute people in relation to images of children include:

Protection of Children Act 1978, which prohibits making, taking, permitting to be taken, distributing or showing indecent photographs (including film or computer data such as scans) or “pseudo-photographs” of children. As defined by the act, “children” are people under 18.
Criminal Justice Act 1988, which creates an offence of possessing an indecent photograph or “pseudo-photograph” of a child.
Coroners and Justice Act 2009, which criminalises the possession of non-photographic images of children (including cartoons, paintings and drawings) which are pornographic and grossly offensive, disgusting or otherwise of an obscene character.
Children and Young Persons (Harmful Publications) Act 1955, which criminalises the printing, publishing, hiring or selling of a book, magazine or similar work, which consists mostly of stories told in pictures and is of a kind likely to fall into the hands of children or young people, and which portrays acts of violence or cruelty, the commission of crimes or repulsive incidents in such a way that it might “tend to corrupt” a child reader. There have been very few prosecutions for this offence.
Indecent Displays (Control) Act 1981, which criminalises the public display of “indecent matter”.
Obscene Publications Act 1959, which criminalises the publication of an “obscene article”.
Police and Criminal Evidence Act 1984, which gives police a range of statutory powers to stop, search, and arrest individuals.
Serious Crime Act 2015, which created the offence of being “in possession of any item that contains advice or guidance about abusing children sexually”. The crime is called “possession of paedophile manual”. If a defendant has material containing advice or guidance about how to make indecent photographs (but not pseudo-photographs) of children they will likely be committing an offence under this act.

These laws are intended to protect the rights of children. The police and prosecuting authorities should also consider the free-expression rights of alleged perpetrators under the European Convention on Human Rights (ECHR) when making decisions about whether to investigate or prosecute.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp3″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”3. Protection of Children Act 1978 – Taking, making, showing and distributing indecent photographs of children” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Individuals may commit a criminal offence under the Protection of Children Act 1978 in relation to indecent photographic, film and “pseudo-photographic” images (which are defined as non-photographic images that appear to be photographs – these could be computer-generated). Under the legislation, “photograph” includes negatives, tracings of photographs and data stored on a computer or electronically that is capable of being converted into photographs. For a photograph or film to be considered indecent under the law, it must be found by the jury or court to offend recognised standards of propriety. This is an extremely fluid test that changes along with society’s changing expectations.

The criminal offence set out in Section 1 of the 1978 act prohibits the making, taking, permitting to be taken, distributing, or possessing (with a view to distributing) indecent photographs or pseudo-photographs of children. “Making” an indecent image is defined as “to cause [it] to exist, to produce by action, to bring about” (R v Bowden 2000). It includes intentionally opening an email attachment knowing that it contains (or is likely to contain) an indecent photograph of a child.

Equally, accessing a pornographic website and knowing that indecent images of children will automatically be generated as on-screen “pop-ups” amounts to “making” an indecent image of a child (as will knowing the image will be automatically saved to a hard drive, and keeping it there). Downloading an image from a website on to a computer screen and “live-streaming” indecent images also constitute “making” an indecent image (R v Smith and R v Jayson 2002). The making must “be a deliberate and intentional act with knowledge that the image made was, or was likely to be, an indecent photograph of a child (R v Smith and R v Jayson 2002). An unintended copying or storing of an image does not constitute the offence of “making” an indecent image. Consequently, someone who opens a doubtful email attachment that turns out to be an indecent photograph or whose computer automatically saves it in its cache is not guilty of making those photographs (Atkins v DPP and Goodland v DPP 2000).

“Sexting” (the creating, sharing, sending or posting of sexually explicit messages or images via mobile phones or other electronic devices), if it involves someone under the age of 18, may amount to distributing or showing an indecent photograph of a child under Section 1(b) of the Protection of Children Act.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Coroners and Justice Act 2009 – Possession of prohibited non-photographic images of children” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]It is a crime under the Coroners and Justice Act 2009 to possess non-photographic images that are grossly offensive, disgusting or otherwise of an obscene character. Non-photographic images include computer-generated images (CGIs), cartoons, manga images, and drawings. They can be still or moving, and produced by any means. The images must also be pornographic, meaning it can be assumed they were principally or solely produced for the purpose of sexual arousal. The image must also focus solely or principally on the anal or genital region of a child, or show certain specific sexual acts (such as oral sex with, or in the presence of, a child). There is an exclusion from the offence for works classified by the British Board of Film Classification.[/vc_column_text][vc_column_text]

The difference between Protection of Children Act 1978 and Coroners and Justice Act 2009 crimes

Photos and films (and images appearing to be photos)

Protection of Children Act 1978

A photograph of a naked child in a room full of clothed people could be considered indecent under the Protection of Children Act if it offends what the jury considers the “recognised standards of propriety”. This will depend on the context and all the circumstances surrounding the image’s creation.

Drawings, paintings and sculptures

Coroners and Justice Act 2009

Under the Coroners and Justice Act there is a higher test for a drawing, painting or sculpture. It needs to be grossly offensive, disgusting, or obscene and pornographic and it needs to depict certain sexual acts featuring children or certain sexual parts of a child’s body. For example, a drawing of a 14-year-old masturbating could be prohibited because it may be considered pornographic (meaning it can be reasonably assumed to have been produced for the purpose of sexual arousal), and obscene, and it involves the sexual act of a child.[/vc_column_text][vc_column_text css=”.vc_custom_1579691218533{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #21277a !important;}”]

Case study: Obscene manga?

In October 2014, Robul Hoque admitted 10 counts of possessing prohibited images of children at Teesside Crown Court. Police seized Hoque’s computer from his home in June 2012 and found 288 still and 99 moving images. The images were in Japanese manga or anime-style and were not of real people. However, they were classified as prohibited images because they depicted young girls, some in school uniforms and some engaging in sexual activity.

Hoque had been convicted some six years prior of making “indecent pseudo-photographs” for having realistic-seeming “Tomb Raider-style” computer-generated pictures of fictional children.

The conviction was criticised in online media. Spiked magazine pointed out that the material Hoque was looking at did not involve any actual children (only drawings) and he had no convictions for child abuse or possession of actual child pornography, and that he was not a threat to children. His consumption of manga magazines could therefore not be said to result in any exploitation of children or create a market for that exploitation (which are the usual arguments for criminalising possession of indecent images of children). In the writer’s words: “The fact that possessing something in private, which gives a window into your thoughts and nothing else, can now be a crime, shows how insidious and deranged the moral panic over paedophilia has become.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp5″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”5. Criminal Justice Act 1988 – Possession of an indecent photograph of a child” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Under the Criminal Justice Act 1988, it is a crime to simply possess an indecent photograph (or pseudo-photograph) of a child. People “possess” a photograph if they are capable of accessing or retrieving it and they are aware that they possess an image or images. Photos are not retrievable if they are located on a hard drive that requires specialist software to access, which the suspect does not have. To possess the photo, the suspect does not need to have opened or scrutinised it. A person receiving unsolicited indecent images on WhatsApp, which automatically download to the phone’s memory, will likely be found to possess indecent photographs. However, if the suspect has not seen the photos, and has no reason to believe they are indecent, then he or she will have a defence under Section 160(2)(b).[/vc_column_text][vc_column_text css=”.vc_custom_1579690479213{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #21277a !important;}”]

Case study: Possession of digital files

The case of R v Cyprian Okoro 2018 concerned London doctor Cyprian Okoro, who received an unsolicited indecent images of children on WhatsApp. It was downloaded on to his phone and found in a vault application, which is a storage area protected by a password. It was impossible to tell whether the video had been viewed.

Okoro said that when he received the message on WhatsApp he did not view it and intended to delete it, but it went into the vault by mistake. He did not realise it was indecent until he viewed it later with his lawyer and the police. The trial judge initially told the jury that Okoro had admitted that he “possessed” the indecent images, and the only question was whether or not he had a defence.

Okoro’s defence lawyer then raised the question of whether “possessing” an indecent photo required the defendant to know he possessed the images and that the images were indecent. The court said that possession required only that the suspect was aware they had the image, and they had the capacity to access and retrieve it. The suspect did not have to know that the image was indecent.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp6″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”6. Defences to child-protection crimes” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]If the CPS decides to prosecute, there are limited defences available. In the case of distributing or showing indecent photographs of children prohibited under the Protection of Children Act 1978, and possessing indecent photographs under the Criminal Justice Act 1988, alleged perpetrators have to demonstrate that:

they had not seen the images and had no reason to suspect they were prohibited;
or they had a “legitimate reason” for being in possession of them or showing or distributing them.

If the child in the photograph is over 16 and is the spouse or civil partner of the perpetrator, no offence under Section 1 of the Protection of Children Act has been committed. This includes making or taking an indecent photograph. The same is true for the offence of possessing indecent photographs under the Criminal Justice Act.

There is also an additional defence under the Criminal Justice Act that the photo was sent to the defendant without any prior request made by him or her, or on his or her behalf, and that the defendant did not keep it for an unreasonable time. There is very little information available on what amounts to an “unreasonable time”. CPS guidance states that this is a question that will be determined by juries on a case-by-case basis.

The leading case on the concept of “legitimate reason” (Atkins v Director of Public Prosecutions 2000) suggests that the defence applies only in very restricted circumstances, such as when it is necessary to possess the images to conduct forensic tests or for legitimate research. It also suggests that any court should approach such a defence with scepticism. The court in Atkins said that:

“The central question where the defence is legitimate research will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs, or by contrast a genuine researcher with no alternative but to have this sort of unpleasant material in his possession. In other cases there will be other categories of legitimate reasons advanced. They will each have to be considered on their own facts.”

As stated above, to a certain extent those who could be considered to have a “legitimate reason” – such as artists and galleries – can rely on their right to freedom of expression under Article 10 of the ECHR: the right to receive and impart opinions, information and ideas, including those which shock disturb and offend. That right is qualified by the need to protect the rights and freedoms of others (in this context, children), and a 2001 case (R v Smethurst 2002) found that the Protection of Children Act 1978 offence was compatible with Article 10 rights to free expression under the ECHR.

In the context of child protection, the rights of children not to be exploited and those of a young audience will be set against the right to freedom of expression. That means the police and courts are permitted in some circumstances to act in ways that will compromise the freedom of expression rights of individuals. Any decision they make will require these competing objectives to be balanced.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp7″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”7. The Lanzarote Convention” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]In 2018, the UK ratified the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, also known as the “Lanzarote Convention”. It requires the UK to criminalise many offences concerning child pornography, including “knowingly obtaining access, through information and communication technologies, to child pornography”. This may well be covered through the Protection of Children Act 1978 offence of making an indecent image of a child (which can cover downloading such images, or knowingly entering websites where such pop-up images will appear) or the crime of possessing an indecent image under the Criminal Justice Act 1988. Alternatively, the UK may be obliged to create a more specific criminal offence.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp8″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”8. Online Harms White Paper” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The government’s 2019 Online Harms White Paper proposed establishing a statutory duty of care to make companies operating on the internet more responsible for their users’ safety and to “tackle harm caused by content or activity on their services.” An independent regulator would be set up to enforce compliance. The white paper stated that enforcement in respect of activity involving harm to children would be prioritised.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”cp9″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”9. The powers of the police and prosecuting authorities” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Under Section 4 of the Protection of Children Act 1978, a judge may issue a warrant authorising police to enter and search any premises where they reasonably believe an indecent photograph (or pseudo-photograph) of a child will be found. The warrant can permit the police to seize any articles they reasonably believe are – or include – indecent photographs of children.

Section 67 of the Coroners and Justice Act 2009 applies these powers to the “possession of prohibited images of children” offence. So if police reasonably believe they will find prohibited images of children other than photographs (such as computer-generated images, cartoons, manga images and drawings), they can request a warrant from a judge to search the place and seize any prohibited material.

If the police seize indecent photographs or prohibited images during a search, they may apply to court to “forfeit” them (that is, destroy or condemn them), or they may automatically do so if no one claims the property after the police inform all possible owners of the property of their intention to forfeit the property.

The Indecent Displays (Control) Act 1981 empowers magistrates to issue a warrant to a police officer who has reasonable grounds for suspecting someone is displaying indecent matter to enter premises and seize any articles used in the commission of the indecent-matter crime. The act also empowers a police officer to “seize any article which he has reasonable grounds for believing to be or to contain indecent matter and to have been used in the commission” of the indecent-matter offence.

Prosecutions under the Protection of Children Act 1978, the Criminal Justice Act 1988 and the Coroners and Justice Act 2009 require the consent of the Director of Public Prosecutions. As with all criminal cases, the Crown Prosecution Service (CPS) will consider whether it is in the “public interest” to prosecute, taking into consideration the competing rights of the alleged perpetrator and others, including children. A reading of the CPS code, which governs its decisions and its list of public-interest factors, suggests that there will be a lower threshold for prosecutions involving offences against children.[/vc_column_text][vc_column_text css=”.vc_custom_1579690942191{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #21277a !important;}”]

Convention on the Rights of the Child

The Convention on the Rights of the Child is an international treaty established in 1989 and signed by 196 countries. It sets out the civil, political, educational, health and other rights of children which countries signing up to the treaty agree to respect. For example, with regard to free expression, the treaty says: “States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” It also lists a separate free-expression right for children in Article 13. Under Article 34, the signatories agree to “protect the child from all forms of sexual exploitation and sexual abuse”, including the “exploitative use of children in pornographic performances and materials.” The UK ratified the treaty in 1991. The USA has signed but not ratified it, meaning it intends to comply with the treaty but is not bound by it.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

Free speech & the law: Obscene Publications

21 Jan 2020 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

[vc_row][vc_column][vc_column_text css=”.vc_custom_1579268532812{margin-bottom: 30px !important;background-color: #f5f5f5 !important;}”]Please note: This is part of a series of guides produced by Index on Censorship on the laws related to freedom of expression in England and Wales. They are intended to help understand the protections that exist for free speech and where the law currently permits restrictions.[/vc_column_text][vc_column_text]This guide is available to download as a PDF here.[/vc_column_text][vc_single_image image=”112007″ img_size=”large” add_caption=”yes” alignment=”center”][vc_raw_html]JTNDZGl2JTIwc3R5bGUlM0QlMjJmb250LXNpemUlM0EuOWVtJTNCcGFkZGluZyUzQTVweCUzQmJhY2tncm91bmQtY29sb3IlM0FXaGl0ZVNtb2tlJTNCZmxvYXQlM0FyaWdodCUzQm1hcmdpbi1sZWZ0JTNBMTVweCUzQndpZHRoJTNBNDAlMjUlM0IlMjIlM0UlM0NoNCUzRVRhYmxlJTIwb2YlMjBjb250ZW50cyUzQyUyRmg0JTNFJTBBJTNDb2wlM0UlMEElM0NsaSUzRSUzQ2ElMjBocmVmJTNEJTIyJTIzdG9wJTIyJTNFT2JzY2VuZSUyMHB1YmxpY2F0aW9ucyUyMG9mZmVuY2VzJTIwZXhwbGFpbmVkJTNDJTJGYSUzRSUzQyUyRmxpJTNFJTBBJTNDbGklM0UlM0NhJTIwaHJlZiUzRCUyMiUyM29wMiUyMiUzRU92ZXJ2aWV3JTIwb2YlMjBVSyUyMGxhd3MlM0MlMkZhJTNFJTNDJTJGbGklM0UlMEElM0NsaSUzRSUzQ2ElMjBocmVmJTNEJTIyJTIzb3AzJTIyJTNFVGhlJTIwT2JzY2VuZSUyMFB1YmxpY2F0aW9ucyUyMEFjdCUyMDE5NTklM0MlMkZhJTNFJTNDJTJGbGklM0UlMEElM0NsaSUzRSUzQ2ElMjBocmVmJTNEJTIyJTIzb3A0JTIyJTNFVGhlYXRyZXMlMjBBY3QlMjAxOTY4JTNDJTJGYSUzRSUzQyUyRmxpJTNFJTBBJTNDbGklM0UlM0NhJTIwaHJlZiUzRCUyMiUyM29wNSUyMiUzRUluZGVjZW50JTIwRGlzcGxheXMlMjAlMjhDb250cm9sJTI5JTIwQWN0JTIwMTk4MSUzQyUyRmElM0UlM0MlMkZsaSUzRSUwQSUzQ2xpJTNFJTNDYSUyMGhyZWYlM0QlMjIlMjNvcDYlMjIlM0VDcmltaW5hbCUyMEp1c3RpY2UlMjBhbmQlMjBJbW1pZ3JhdGlvbiUyMEFjdCUyMDIwMDglM0MlMkZhJTNFJTNDJTJGbGklM0UlMEElM0NsaSUzRSUzQ2ElMjBocmVmJTNEJTIyJTIzb3A3JTIyJTNFV2hlcmUlMjBjYW4lMjBJJTIwZmluZCUyMG91dCUyMG1vcmUlMjBpbmZvcm1hdGlvbiUyMGFib3V0JTIwb2JzY2VuaXR5JTIwbGF3JTNGJTNDJTJGYSUzRSUzQyUyRmxpJTNFJTBBJTNDJTJGb2wlM0UlM0MlMkZkaXYlM0U=[/vc_raw_html][vc_custom_heading text=”1. Obscene publications offences explained” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes” el_id=”ct1″][vc_column_text]It is nearly 300 years since bookseller Edmund Curll was convicted in 1727 on a charge of obscenity in an English court for his publication of the mildly pornographic Venus in the Cloister or The Nun in Her Smock. Obscenity was thereafter recognised as a crime under common law. Since then, the definition of obscenity has narrowed from the broad concept under common law of engendering “revulsion, disgust or outrage” (although this remains the definition of obscenity for the offence of outraging public decency) to the notoriously vague current definition under the Obscene Publications Act 1959 of “tending to deprave and corrupt”.

Obscenity law is concerned with protecting “public morals” – it seeks to steer people away from immoral or criminal behaviour and vice. The European Court of Human Rights (ECtHR) has recognised that convictions under the Obscene Publications Act 1959 – which criminalises publishing “obscene” material – interfere with individuals’ rights to free expression under Article 10 of the European Convention on Human Rights (ECHR). However, in the 1972 case of Richard Handyside v United Kingdom, the ECtHR acknowledged that prosecutions under the act were permissible under the restrictions set out in Article 10(2) of the ECHR where freedom of expression can be restricted to protect “morals in a democratic society.”[/vc_column_text][vc_column_text]

What does Article 10(2) of the European Convention on Human Rights say?

Article 10(2) says that the right to freedom of expression “carries with it duties and responsibilities”. Because of this, the right to free expression may be subject to restrictions and conditions that are necessary in a democratic society and are set out clearly in the law. To be valid, any restrictions must be for one or more of the following purposes: national security, public safety, territorial integrity, preventing crime or disorder, protecting health or morals, protecting the reputation or rights of others, preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary.[/vc_column_text][vc_column_text css=”.vc_custom_1579616809073{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Richard Handyside and The Little Red Schoolbook

The Richard Handyside case was about The Little Red Schoolbook. This was a book intended for teenagers written by two Danish authors and intended to be published in the UK by Handyside, the owner of publishing house Stage 1. It had chapters on education, learning, teachers, pupils and “the system”. However, it also had a section on sex, which contained sub-sections on masturbation, orgasm, intercourse and petting, contraceptives, wet dreams, menstruation, child molesters or “dirty old men”, pornography, homosexuality and impotence. There were also references to smoking pot and references to porn as “a harmless pleasure”. In March 1971, the Daily Mirror, The Sunday Times and The Daily Telegraph published accounts of the book’s contents, leading to a number of complaints to the Director of Public Prosecutions, who asked the police to investigate. Following a criminal trial, Handyside was convicted of possessing 1,208 obscene books for publication for gain. He was fined and the books were ordered to be destroyed.

The question the ECtHR had to consider was whether Handyside’s criminal conviction (plus the fine and the destruction of the books) amounted to a breach of his Article 10 rights to freedom of expression. The court decided that, since there was no “uniform European conception of morals”, the authorities in the UK were better placed than the European judges to determine the need for acts such as the Obscene Publications Act. It also said the British judges were entitled, in the exercise of their discretion, to think that the Schoolbook “would have pernicious effects on the morals of many of the children and adolescents who would read it”. The court found no breach of Handyside’s Article 10 rights.

However, the case did establish an important precedent because it established the principle that “freedom of expression…is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population.”[/vc_column_text][vc_column_text css=”.vc_custom_1579616619475{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Obscene publications and the internet

The case of R v Perrin (Stephane Laurent) 2002 established that the creation of a web page was sufficient to establish publication and that a jury only had to be satisfied that there was a likelihood of vulnerable persons seeing the obscene material. The prosecution did not have to demonstrate that such a person actually did or would see it. Pornographic content on a web page that has the tendency to deprave and corrupt the viewer would therefore be sufficient to establish criminal liability and the court found the in this instance did not violate the defendant’s right to freedom of expression under Article 10 of the European Convention on Human Rights.

However, subsequent cases have tested this assumption (see Case dropped against Girls Aloud blogger below).[/vc_column_text][vc_column_text]In recent years, there have been multiple and increased calls to abolish the Obscene Publications Act. Because prosecutions under the act require convincing a jury that a video, sound recording or image “tends to deprave or corrupt” those receiving it – a standard judged against prevailing moral standards – there have been many recent high-profile acquittals in cases where jurors have simply been unmoved by the potentially obscene material in front of them.[/vc_column_text][vc_column_text css=”.vc_custom_1579616636337{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Shocked then bored

In 2012, Michael Peacock was unanimously acquitted by 12 members of a jury at Southwark Crown Court on six counts of publishing obscene articles likely to “deprave and corrupt”. He had sold hardcore gay pornography DVDs online from his flat in Brixton. The police saw adverts and operated an undercover purchase. They found six DVDs featuring hardcore pornography and Peacock was prosecuted. The jury was shown hours of footage from the DVDs. Peacock’s defence solicitor remarked that although the jury “were quite shocked initially, they started to look quite bored very quickly”. The jury returned a not-guilty verdict.[/vc_column_text][vc_column_text css=”.vc_custom_1579616658097{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Girls Aloud blogger

In 2008, a case was dropped against a blogger charged with obscenity after he wrote an erotic story detailing the kidnap, sexual torture and murder of pop group Girls Aloud. A key part of the prosecution’s case against the blogger was that his post could be easily accessed by young Girls Aloud fans. However, shortly before the trial, an IT expert gave evidence that the blog could be found only by people specifically searching for it. On discovering this, the prosecution dropped the case and the judge issued a not-guilty verdict.[/vc_column_text][vc_column_text]While many of the obscenity laws created in the latter half of the 20th century remain in place, in recent years the risk of prosecution has reduced. Following the Peacock case, the Crown Prosecution Service (CPS) recently changed its guidance to narrow what it considers “obscene”. Consensual legal sexual acts between adults such as spanking, fisting, BDSM and female ejaculation are no longer considered obscene by prosecutors, and so people who distribute or sell videos or images of such acts will likely no longer be prosecuted under the Obscene Publications Act. Equally, the number of prosecutions and convictions secured under obscenity laws in England and Wales has dropped dramatically in recent years. For example, while in 1984 there were 429 successful convictions under the Obscene Publications Act 1959, in 2014 there were just 10.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. Overview of UK laws” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The UK laws applicable to the broad area of obscenity include:

Obscene Publications Act 1959
Obscene Publications Act 1964
Theatres Act 1968
The common law offence of outraging public decency
Indecent Displays (Control) Act 1981
Video Recordings Act 1984
Protection of Children Act 1978 (please see the Child Protection Guide)
Criminal Justice Act 1988 (Possession of indecent photograph of a child – please see Child Protection Guide)
Broadcasting Act 1990
Postal Services Act 2000
Criminal Justice and Immigration Act 2008 (covering the definition of “extreme pornography”)

Below we highlight the main offences that might concern freedom of expression and the law.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op3″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”3. The Obscene Publications Act 1959″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The offence of publishing an obscene article, or possessing one for gain, is set out in the Obscene Publications Act 1959. This act states the legal test for obscenity to be applied to the offence and certain defences to the crime.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”What is “obscene”?” use_theme_fonts=”yes” el_id=”ct41″][vc_column_text]

Credit: Thomas Hawk (CC BY-NC 2.0)

Section 1(1) of the Obscene Publications Act 1959 describes an “obscene” item as one that has the effect of “tending to deprave and corrupt” persons likely to read, see or hear it. This statutory definition is largely based on the common law test of obscenity, as laid down in the case of R v Hicklin 1868, namely:

“whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

In cases such as Lady Chatterley’s Lover (R v Penguin Books Ltd 1961) and the prosecution of the publishers of Last Exit to Brooklyn (R v Calder and Boyars Ltd 1969), the courts have defined “deprave” as meaning to make morally bad, debase, pervert or corrupt morally; and “corrupt” as meaning to render morally unsound or rotten, destroy moral purity or chastity, pervert or ruin a good quality, and debase or defile. If the item is “filthy, loathsome or lewd” but does not tend to corrupt and deprave, it will not be obscene for the purposes of the act.

“Obscene” material is not limited to material of a sexual nature. In fact, it has been held by the courts that material glamourising or promoting potentially dangerous behaviour, such as drug-taking or brutal violence, may amount to an obscene publication. See, for example, the ruling in Calder (Publications) Ltd v Powell 1965: “A tendency to deprave or corrupt may be defined as a tendency to make people behave worse, more violently, or be more addicted to drugs than they otherwise would be.” The purpose or intention of the creator of the material, however noble or otherwise, will be immaterial to whether something is deemed to be obscene or to outrage.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Offences” use_theme_fonts=”yes”][vc_column_text]The Obscene Publications Act 1959 makes it an offence to “publish” an obscene article (whether for gain or not). “Publish” is defined in Section 1(3) of the act and includes distributing, circulating, selling, hiring, giving, lending, showing and electronically transmitting an obscene article. If the article is an obscene film or sound recording, it is a crime to show, play or project it.

The Obscene Publications Act 1964 added the offence of merely possessing an obscene article, provided it is intended for “publication for gain”. This is intended to catch situations where an item is in a person’s possession but not yet on display or sold or distributed to a customer. For example, Handyside was convicted of possessing obscene books intended for publication for gain.

“Gain” is broadly defined. Section 1(5) of the 1964 act defines it as gain accruing “by way of consideration for the publication or in any other way”. “Consideration” will cover financial advantage. However, “any other way” is not defined further so the exact parameters of this form of offence are unclear. There can be a “publication” under the Obscene Publications Act even if the material is shown to only one person. Private conversations in internet chat rooms or on online messaging services can be publications for the purposes of the act.[/vc_column_text][vc_column_text css=”.vc_custom_1579616691016{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: One-to-one online sexual fantasy chat

In 2012 a convicted paedophile was charged under the Obscene Publications Act for engaging in individual online chats about the physical and sexual abuse of children: the first prosecution of an individual under the Obscene Publications Act 1959 for online one-to-one chats in which the content was fantasy. The question was whether the comments had been “published” if they were sent to only one person. The court said that publication under the act did not need to be to more than one person, and it did not matter that neither participant was wholly innocent to begin with – the act “protects the less innocent from further corruption, the addict from feeding or increasing his addiction” (quoting the case of DPP v Whyte 1972).

The prosecutor in the case stated “there will be many who focus on the fact that these conversations were private and fantasy to highlight how this decision indicates an erosion upon an individual’s freedom of expression”. However, he said the content of the discussions “was not the legal and consensual sexual activity of adults rather it was the sexual and physical abuse of children”, which he said merited the protection of the law. Smith’s lawyer, Myles Jackman, has described this case as a “landmark Court of Appeal decision extending publication under the OPA to private, one-to-one, sexual fantasy text chat via the internet; potentially criminalising millions of adults”.[/vc_column_text][vc_column_text]It is important to note that the Obscene Publications Act 1959 does not criminalise writing or otherwise creating an obscene article. Nor does it criminalise merely possessing an obscene article so long as it is not being held for future gain. It is primarily the distributors of obscene material who are penalised under the statute.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Update to the CPS guidance on obscenity” use_theme_fonts=”yes” el_id=”ct42″][vc_column_text]

The police have statutory and common law powers to deal with disorder and to prevent anticipated disorder. They can do so by making arrests for various offences, and, importantly, by making arrests or giving directions to people to prevent breaches of the peace.

In exercising these powers, the police also have duties to give protection to the freedom of speech of all groups and individuals, and any other relevant freedoms, including the right to protest and to manifest a religion. The role of the police naturally shifts with changes in culture and the law. The current position is that the police have an obligation to ensure law and order and, as a public authority, an additional obligation under the Human Rights Act 1998 to preserve, and in some cases to promote, fundamental rights such as the right to protest and the right to freedom of expression protected by Articles 10 and 11 of the ECHR, currently incorporated into the UK’s domestic law.

The result is that the police conduct a pragmatic balancing act between the different parties. However, in certain contexts, the correct balance may not be being struck. For example, in the artistic world there have been numerous incidents where police have advised the closure or cancellation of controversial shows or exhibits in order to avoid public disorder. For example, Exhibit B – an installation showing a series of tableaux vivants recreating the 19th century “human zoo” fashion of presenting Africans as exhibits to European audiences – was closed following the police’s advice that if the show were not closed, it could trigger riots. The manager of the venue showing Exhibit B said that when police issued their “advice” to close the show, five officers stood over him while he wrote a letter agreeing to close it.

Other problems with policing controversial artwork remain. One issue is the police’s requests for fees to cover their services when policing controversial shows.

The CPS publishes its own legal guidance on “obscene publications”. The guidance details how prosecutors should approach the question of “obscenity”. Until January 2019, the guidelines listed certain sexual acts taking place between consenting adults as “obscene”. Spanking, bondage, female ejaculation and sadomasochism were included on the list, and the distribution of such images or videos was considered a criminal offence under the Obscene Publications Act 1959. However, following a campaign led by obscenity lawyer Myles Jackman and organisations for freedom of sexual expression such as Backlash, the CPS removed the sexual acts from its guidance. A spokesperson for the CPS said: “It is not for the CPS to decide what is considered good taste or objectionable. We do not propose to bring charges based on material that depicts consensual and legal activity between adults, where no serious harm is caused and the likely audience is over the age of 18.”

Prosecutors will instead now focus on pornographic material that features non-consenting adults, or where serious harm is caused, or it is linked with other criminal acts, or the likely audience is younger than 18.

As stated above, what is obscene is determined by reference to “contemporary community standards”, which inevitably change over time.[/vc_column_text][vc_column_text css=”.vc_custom_1579609930041{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

What is likely to be a crime under the Obscene Publications Act 1959?

Handing out pamphlets featuring images of non-consensual sex between adults.
Selling pornographic material showing serious harm being caused to the participants.
Keeping this material in your home with a view to selling it or otherwise profiting from it.
Showing this pornographic material on a projector to customers at a rooftop bar.

[/vc_column_text][vc_column_text css=”.vc_custom_1579610040718{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

What is likely to not be a crime under the Obscene Publications Act 1959?

Being an actor in this pornographic material.
Being in possession of the pornographic material, provided it is for private use only.
Writing the script of this material.
Thinking up or discussing it out loud with friends (although it may be a crime to discuss it online).

[/vc_column_text][vc_column_text]The likely viewer or recipient can be a specific individual or a group. Participants need not be wholly innocent to begin with – an article can be obscene if it leads to “further corruption” of the less innocent. It is not necessary that all people likely to read, see or hear the material would be corrupted. If a significant proportion (which can be much less than 50 per cent) would be corrupted, that is enough.

Defences under the Obscene Publications Act 1959

There are limited defences that apply under the Obscene Publications Act 1959. The accused may assert that they had not seen the material and had no reason to believe that it was obscene. Alternatively, they may assert that their actions were for the “public good”, as defined by Section 4. This says there will be no conviction if it is proved that the material in question is presented in the interests of science, literature, art or learning, or other reasons of general public concern. “Learning” means “being the product of scholarship, something with inherent excellence gained by the work of a scholar” (DPP v Jordan 1977).

To succeed with the Section 4 defence, the court or jury must be satisfied on the balance of probabilities that the publication was made for the public good. This means the jury must think it is more likely than not that the publication was made for the public good. Expert witnesses can be called to testify.

There is a slightly different “public good” defence for films and soundtracks. Here there is a defence if publication of the film or soundtrack is for the public good because it is in the interests of drama, opera, ballet or any other form of art, literature or learning.

There is a time limit on prosecuting an offence under the 1959 act. Prosecutors have two years from the date of commission of the offence to bring a prosecution.

Works that fall outside the scope of the Obscene Publications Act may come under the Theatres Act or the common law offence of outraging public decency, while possession of extreme pornographic images could fall under the offence set out in Section 63 of the Criminal Justice and Immigration Act 2008.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Theatres Act 1968″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Theatres Act 1968 applies a similar definition of obscenity to plays and performances. This means that anyone directing or presenting an obscene performance of a play is guilty of an offence with a maximum sentence of three years’ imprisonment and a fine. A play is obscene if, taken as a whole, its effect was to “tend to deprave and corrupt” those people likely to attend it. While the play can take place in public or in private, plays “given on a domestic occasion in a private dwelling” cannot fall under this offence. Rehearsals are also excluded, and if prosecutors want to pursue an individual for this crime, they must begin proceedings within two years of the alleged crime taking place.

Prosecutions are rare. In the early 1980s, moral campaigner Mary Whitehouse brought a private prosecution against director Michael Bogdanov for his production of The Romans in Britain but the trial collapsed in 1982.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op5″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”5. Indecent Displays (Control) Act 1981″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]This act criminalises publicly displaying any “indecent matter”. “Indecent” is not defined in the act, and case law indicates something can be “indecent” without being “obscene” under the Obscene Publications Act 1959 (that is, tending to deprave or corrupt). There is no defence of the indecent material being for the “public good” as there is under the Obscene Publications Act 1959. Notably, the act does not criminalise indecent displays of one’s own (or another’s) body. Section 1(5) says that “indecent matter” does not include “an actual human body or any part thereof”. Materials in a shop that people can access only by passing behind a warning notice are also excluded from this offence.

Prosecutions under this act are rare. Between 2002 and 2004 there were only three successful convictions.

Outraging public decency

Outraging public decency is a common-law offence. This means it has been made by judges deciding individual cases over time. Outraging public decency has two elements. First, there must be a lewd or disgusting or obscene act that outrages minimum standards of public decency as judged by a jury in contemporary society. Second, the act must be in public view and in the presence of two or more people, regardless of whether they actually witness the act or are outraged by it.[/vc_column_text][vc_column_text css=”.vc_custom_1579616725941{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Human Earrings

In 1987, gallery owner Peter Sylveire displayed earrings made from human foetuses by artist Rick Gibson at the Young Unknowns Gallery in London. It was described in the catalogue as “Human Earrings”. Police seized the earrings and Gibson and Sylveire were prosecuted for outraging public decency. The jury returned a guilty verdict, finding that the earrings were “obscene” in that they tended to engender disgust, revulsion or outrage.

In Sylveire and Gibson’s appeal, the Court of Appeal ruled that the so-called “Human Earrings” were not likely to “corrupt public morals”. Sylveire and Gibson could therefore not be found guilty under the Obscene Publications Act 1959, which had a stricter test for whether material was obscene or not. However, their convictions for outraging public decency remained in place.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op6″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”6. Criminal Justice and Immigration Act 2008″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Unlike the Obscene Publications Act 1959, which criminalises the distribution of obscene material, the Criminal Justice and Immigration Act 2008 criminalises the possession of an “extreme pornographic image”. An image will be “pornographic” if it was solely or principally produced for the purpose of sexual arousal. It is “extreme” if it is “grossly offensive, disgusting or otherwise of an obscene character” and it portrays any one of a number of acts in an explicit and realistic way. Extreme acts include acts that threaten a person’s life or are likely to result in serious injury to a person’s genitals, anus or breasts. Acts involving sexual activity with corpses or animals will also be extreme for the purposes of this offence.

In determining whether an image is “pornographic”, the identity or purpose of the creator or sender of the image is irrelevant – the only question is whether the image can be assumed to be produced solely or principally for the purpose of sexual arousal of anyone who came to have it. In the case of Regina v Baddiel (David) 2016, the defendant had argued that an image on his iPhone of a person performing a sexual act with an animal was not pornographic because it had been sent to “disgust, shock or amuse” and not to arouse sexually. The court said the sender’s purpose did not matter for the purposes of what was “pornographic”. If the WhatsApp image could be “reasonably assumed” to be for the principal or sole purpose of sexual arousal of whoever came to have it, it was pornographic for the purposes of the Criminal Justice and Immigration Act.[/vc_column_text][vc_column_text css=”.vc_custom_1579617776220{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #44573b !important;}”]

Case study: Possessing extreme pornography

In 2012, barrister Simon Walsh was unanimously acquitted by a jury, having been charged with five counts of possessing extreme pornography under Section 63 of the Criminal Justice and Immigration Act 2008. He was charged with possessing six email attachment images sent to his personal email account, which showed acts of fisting and urethral sounding (where surgical rods are inserted into the urethra for sexual gratification). Although the acts shown in the images were consensual, they allegedly fell under the extreme porn crime because they could possibly result in “serious injury to a person’s genitals or anus”. The defence argued that the images were not extreme because the activities were conducted safely and were relatively commonplace acts, particularly within the LGBT community.

Walsh pleaded not guilty and was acquitted by a jury who took less than 90 minutes to make their decision. However, as a consequence of the prosecution, Walsh had been fired from his position on the London Fire Authority and excluded from his chambers. Post-acquittal, Walsh issued this statement:

“I would like to take this opportunity to encourage our legislators and regulators not to prosecute individuals in possession of images depicting private and consensual adult sexual acts. Nonetheless, these allegations have damaged my career and personal standing. As I said in my evidence, I do not believe that when I stood for public office I gave up my right to a private sexual life. I reiterate that point now.”

Following the acquittal David Allen Green, solicitor and legal correspondent for the New Statesman, said: “This was a shameful and intrusive prosecution which should never have been brought. It was bad law to begin with, but a good man has had his sex life examined in open court for no good reason. There are serious questions for the CPS to answer about bringing this prosecution.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”op7″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”7. Where can I find out more information about obscenity law?” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]Backlash (www.backlash.org.uk) is a UK-based NGO defending freedom of sexual expression between consenting adults in the UK. It successfully campaigned to update the CPS’s guidance on what will be prosecuted for being obscene.

Myles Jackman is a lawyer specialising in obscenity law and sexual freedoms. You can read his blog at www.mylesjackman.com/index.php/my-blog.

Open Rights Group (www.openrightsgroup.org) is a digital rights campaign group, campaigning on issues such as age-verification for pornographic sites and ensuring free expression on the internet (particularly in response to the government’s Online Harms White Paper and post-Brexit).[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”70″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

Free speech & the law: Public Order

20 Jan 2020 | Campaigns -- Featured, Free Speech and the Law, United Kingdom

Under the Human Rights Act 1998, police officers must respect people’s right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (ECHR). However, Article 10 of the convention states that restrictions on people’s free expression rights may be justified on the grounds of preventing disorder or crime, protecting public safety and protecting the rights of others (see text box).

Many of the public order crimes discussed in this guide are contained in the Public Order Act 1986, which sets out the offences of riot, affray, violent disorder, and the different types of criminal harassment, alarm or distress. However, there are also more specific offences, such as “indecent or racist chanting” at a football match under the Football (Offences) Act 1991. The police also retain a common law power to arrest an individual for “breach of the peace”. The Public Order Act also includes special provision on offences intended to stir up religious and racial hatred and hatred on the grounds of sexual orientation. Please see our separate guidelines: “UK laws relating to ‘hate speech’” for more information.

In addition to speech-related actions that may constitute public order, individuals may break the law for things they say or share online, in phone calls or in written form, such as letters. These are offences are largely covered by the Communications Act and Malicious Communications Act.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po2″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”2. Breach of the peace” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]A breach of the peace is an act (or the threat of an act) that harms a person as a result of violence, or is likely to cause such harm, or makes a person fear such harm. The belief that actual harm is likely to occur must be reasonable.[/vc_column_text][vc_custom_heading text=”Actual harm” use_theme_fonts=”yes”][vc_column_text]The courts have defined “actual harm” to mean harm to a “person’s body or property” (R v Howell (Errol) 1982). There should be a “wrongful” or unlawful act, such as an assault or riot, leading someone to be harmed, or to fear harm, before the police can make an arrest for breach of the peace.

Police officers (and ordinary citizens) can arrest people committing a breach of the peace in their presence, or those they reasonably think will commit a breach of the peace in the immediate future, or who have committed a breach of the peace and are likely to do it again. To comply with human rights law, the purpose of arrest must be to bring the perpetrator before a “competent legal authority”. No warrant is required, and a breach of the peace can take place on private or public property. When the police believe a breach of the peace is likely to happen in the immediate future, they can use their powers only when the breach is imminent. Judicial Review proceedings may be brought against the police if their actions contravene these requirements.

Breach of the peace is governed by common law. Common law, also referred to as case law, is made by judges and developed in the cases that come before the courts over time. (This is in contrast to statutory law, which is written law passed by Parliament.) It means that there are no specific, relevant extracts of written legislation for common law.

Case law tells us that the police must exercise their breach of the peace power of arrest in a way that respects people’s rights to free expression and assembly (as well as their other human rights). Arresting preachers for refusing to stop preaching because they might cause a breach of the peace, for example, was found to breach the preachers’ rights in the case of Redmond-Bate v Director of Public Prosecutions 1999. The court said the police should have used their power of arrest against the large crowd that had gathered and were showing hostility towards the women preachers, and not against the women themselves. However, the court said that if the preachers were being so provocative that someone in the crowd might – not wholly unreasonably – be moved to violence, the police would be entitled to ask the preachers to stop, and arrest them if they refused to.

Although there is a power of arrest for breach of the peace, there is no criminal offence of breach of the peace. Therefore, while someone can be arrested for breach of the peace, they cannot be prosecuted. However, they might be prosecuted for assault, violent disorder, or any other crime that led to the breach of the peace.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po3″][/vc_column][/vc_row][vc_row gap=”35″][vc_column][vc_single_image image=”111978″ img_size=”large” add_caption=”yes” alignment=”center”][vc_custom_heading text=”3. Public Order Act 1986″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Public Order Act covers several offences, including:

Riot (Section 1)
Violent disorder (Section 2)
Affray (Section 3)
Fear or provocation of violence (Section 4)
Intentionally causing harassment, alarm or distress (Section 4a)
Harassment, alarm or distress (Section 5)

While the riot, violent disorder and affray sections are more focused on preventing physical displays of violent or threatening behaviour, Sections 4, 4a and 5 criminalise the use of threatening, abusive or offensive words (or behaviour) in a way that is likely to cause distress, harassment or alarm.[/vc_column_text][vc_custom_heading text=”Public Order Act offences” use_theme_fonts=”yes”][vc_column_text]

Riot

A riot involves 12 or more people using or threatening violence for a common purpose, with their conduct (taken together) resulting in reasonable people present at the scene fearing for their safety.

Violent disorder

Violent disorder involves three or more people using or threatening violence, with their conduct resulting in reasonable people present at the scene fearing for their safety.

Affray

Affray involves one person using or threatening violence, with his or her conduct resulting in reasonable people present at the scene fearing for their safety. Under affray, “a threat of violence cannot be made by the use of words alone”.

Fear or provocation of violence (section 4)

Fear or provocation of violence involves one person using towards another person “threatening, abusive or insulting words or behaviour” or “distributing or displaying to another person any writing, sign or other visible representation which is threatening, abusive or insulting” with the intention of making a person believe immediate violence will be used, or to provoke such violence, or where it is likely violence would be provoked. There is no crime if both parties are inside a private residence. (Neither a domestic garden nor a communal landing in a block of flats are classed as residences.)

Intentionally causing harassment, alarm or distress (section 4a)

Intentionally causing harassment, alarm or distress involves one person using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or displaying writing, a sign or another visual that is threatening, abusive or insulting, with the intent and result of causing harassment, alarm or distress.[/vc_column_text][vc_column_text css=”.vc_custom_1579537002672{margin-top: 15px !important;margin-bottom: 0px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

Case study: Intentionally causing harassment, alarm or distress

In July 2019, a 38-year-old woman was arrested under Section 4a of the Public Order Act 1986 for shouting homophobic abuse at people taking part in a Pride march. Footage posted on social media showed the woman shouting “Shame on you” to participants, one of whom was wearing a rainbow flag. She also shouted: “God created Adam and Eve, not Adam and Steve. Shame on you, shame on all of you. Shame on you, you despicable people.” Jamila Choudhury was given a three-month prison sentence, suspended for 12 months and ordered to pay a £122 victim surcharge and £100 compensation.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

Harassment, alarm or distress (section 5)

Harassment, alarm or distress involves one person using threatening or abusive words or behaviour, or disorderly behaviour, or displaying material which is threatening or abusive, within the hearing or sight of someone likely to suffer harassment, alarm or distress as a result.

There is no requirement to prove that anyone was actually harassed, alarmed or distressed. It is enough if the abusive words can be heard or seen by someone likely to be caused harassment, alarm or distress. Uniquely among the Public Order Act offences, there is no need to prove intention here.

Section 5 is therefore broader than the other offences, particularly Section 4a, as it can apply where the person is aware of the potential for their conduct to be threatening or abusive, even without intending this result. [/vc_column_text][vc_empty_space height=”16px”][vc_column_text]The Public Order Act itself also has additional rules applying to conduct intending to stir up racial or religious hatred, or hatred on the grounds of sexual orientation (see separate guide on this).

Parts III and IIIA of the act create offences against writings, plays, recordings or broadcasts where these are intended to stir up racial hatred (in Part III) or religious hatred or hatred on grounds of sexual orientation (Part IIIA).

However, Part IIIA specifically contains protections for free speech where religion is involved. This protection significantly narrows the scope of Part IIIA.[/vc_column_text][vc_column_text css=”.vc_custom_1579536813352{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

The PEN amendment

Section 29J of Part IIIA (the so-called ‘PEN amendment’) states that the rules on public order must not be applied “in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]

Harassment, alarm or distress

“Harassment”, “alarm” and “distress” have not been defined within the legislation. However, courts have ruled that “distress” requires emotional disturbance and upset. “Harassment” does not require emotional disturbance, but it must not be trivial. It does not need any element of apprehension about personal safety.

Insults

Section 5 no longer contains a prohibition on “insulting words or behaviour”. This reference was removed in 2013 following a high-profile campaign spearheaded by religious and secular campaign groups as well as comedian Rowan Atkinson, human rights campaigner Peter Tatchell and MP David Davis.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po4″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”4. Theatres Act 1968″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Theatres Act 1968 provides a specific offence, under Section 6, of using threatening, abusive or insulting words if the intention is to provoke a breach of the peace, or the performance as a whole is likely to result in a breach of the peace.

The offence criminalises only the actions of the director or the “presenter” of the play, although these roles are not defined within the legislation. Performers are immune unless they are not performing in accordance with directions they have been given.

The act states that a decision to prosecute under Section 6 may be taken only with the consent of the attorney-general (the government’s chief legal adviser). The requirement for the attorney-general’s permission means that a decision to prosecute is likely to be considered particularly carefully, given that the attorney-general has a higher profile than other prosecutors, and such a decision would be subject to greater public scrutiny. This scrutiny may include whether or not the director’s right to freedom of expression and the public’s right to receive information have been sufficiently considered.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Gang injunctions” use_theme_fonts=”yes” el_id=”ct41″][vc_column_text]The Policing and Crime Act 2009 introduced the so-called “injunctions to prevent gang-related violence” that mean a court can require an individual to do, or be prevented from doing, “anything” described in the injunction. The police and local government can apply to a court for an injunction. In the explanatory notes to the legislation, the government said the purpose of the gang injunctions was to prevent serious acts of violence from occurring, break down gang culture and prevent younger gang members’ behaviour from escalating, and give local authorities an opportunity to engage with gang members and help them develop effective strategies to exit gangs.

For the purposes of gang injunctions, something is “gang-related” if it relates to the activities of a group of three or more people who share one or more characteristics that enable them to be identified as a group.

To grant an injunction, a court must first be satisfied that the proposed subject of the injunction has engaged in – or encouraged or assisted – gang-related violence. The court must also think it necessary to grant the injunction in order to prevent that person from engaging in gang-related violence or to protect them from such violence. The court can require the individual to do, or be prevented from doing, “anything” described in the injunction. Although this gives a court very broad discretion, any requirements must be compliant with human rights law, which means it must not unlawfully restrict free expression or free assembly rights under Articles 10 and 11 of the ECHR.

Gang injunctions have been used in recent years to prohibit people from making music. In 2011, “Matt” (whose real name was not revealed so as to maintain his safety), a teenage rapper from south London, was served with a gang injunction that banned him from making any songs or videos that might encourage violence. He faced up to two years in prison if he breached the conditions. Southwark Council – the local authority that applied for the injunction – asked for it partly because videos featuring the rapper contained threats targeting other gangs in the area. While Matt admitted some of his lyrics were violent, he said his lyrics should not be seen as a real threat but as a description of life growing up on an estate in London.[/vc_column_text][vc_column_text css=”.vc_custom_1579536569934{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

Case study: Gang injunctions against Drill musicians

In January 2019, drill artists Skengdo and AM were given nine-month suspended prison sentences for breaching a gang injunction issued against them in August 2018. The injunction banned them from going to certain areas and associating with certain individuals, and restricted their ability to make music and perform. The police claimed the injunction was breached when Skengdo and AM “performed drill music that incited and encouraged violence against rival gang members and then posted it on social media”. The police used footage of them performing Attempted – a response to music from other south London artists – in a club to make their case.

In February 2019, 65 signatories from human rights organisations as well as academics, musicians and lawyers wrote an open letter, urging the Metropolitan Police to stop using gang injunctions against musicians as a means of preventing violence.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]In the case of Jones v Birmingham City Council 2018, the Court of Appeal ruled that gang injunctions did not breach people’s fair-trial rights under the ECHR. Jerome Jones, who had an injunction imposed on him, argued that it was unlawful for the legislation to require proof of involvement in gang-related violence based on the lower civil-law standard of proof (i.e. the balance of probabilities). He argued that because of the punitive and serious nature of gang injunctions, the higher criminal standard of being “beyond a reasonable doubt” should be satisfied before a gang injunction could be imposed. The court disagreed.

Jones’s injunction included a prohibition on appearing in any music videos.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Powers of the police and prosecutors” use_theme_fonts=”yes” el_id=”ct42″][vc_column_text]

Other problems with policing controversial artwork remain. One issue is the police’s requests for fees to cover their services when policing controversial shows.

[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po5″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”5. Communications Act 2003″ font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Counter-Terrorism and Security Act 2015 placed a legal duty on certain bodies to “have due regard to the need to prevent people from being drawn into terrorism”. This duty is one aspect of the government’s Prevent strategy, within its wider counter-terrorism strategy, known as Contest. The aim of Prevent, according to the government, is to “reduce the threat to the UK from terrorism by stopping people becoming terrorists or supporting terrorism”. The duty applies to bodies in the UK that have a role in protecting vulnerable people and/or national security, including schools, universities, prisons, National Health Service trusts and local authorities.

The Prevent guidance demands the bodies take a “risk-based approach”. They must first understand the “risk of radicalisation” within their institutions, and form appropriate policies and procedures to deal with that risk, ensuring frontline and managerial staff are equipped to deal with the risk of radicalisation. This means developing training for staff members on the Prevent duty.

The guidance states that the Prevent programme must not include any “covert activity against people or communities”. But it also states that information-sharing of personal data may be allowed in order, for example, to refer a person at risk of being drawn into terrorism to the appropriate support.

Many institutions will need to work with Home Office Prevent co-ordinator teams who will monitor the institutions’ activities.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Prosecutions under section 127″ use_theme_fonts=”yes”][vc_column_text css=”.vc_custom_1579536539583{margin-top: 15px !important;margin-bottom: 15px !important;padding-top: 5px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #397cbf !important;}”]

Case study: The Twitter joke trial

In 2010, Paul Chambers, who was planning to fly to Northern Ireland to meet his then girlfriend posted a message on Twitter, saying “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!”

Chambers was subsequently arrested and charged with “sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to the Communications Act 2003.” He was found guilty fined £385 and ordered to pay £600 costs.

The conviction was widely condemned as a miscarriage of justice and was appealed three times, the conviction being quashed as a result of the third appeal.[/vc_column_text][vc_column_text]

Other examples

Azhar Ahmed (2012): Convicted for posting on Facebook that British soldiers “should die and go to hell” on Facebook March 2012. Ahmed was sentenced to 240 hours of community service and £300 fee.

Robert Riley (2014): Sent to prison for eight weeks for saying he would have killed murdered teacher Ann Maguire and all her colleagues. Chairwoman of the bench, Georgina Scannell, said the court had no choice but to send the defendant to jail. “The offensive messages outraged the public,” she said. “You had complete disregard for the tragic death of Ann Maguire. Besides this, countless other vile messages were made by you. The bench finds these were racially and religiously aggravated. The offences are so serious that only a period of immediate custody can be justified.”

Count Dankula (2018): Scottish police arrested Mark Meecham (known on YouTube Count Dankula) in May 2016 for posting a video online of him teaching his girlfriend’s dog to make a Nazi salute. He was found guilty in March 2018 and fined £800. The judged sided with the prosecution who said “context and intent are irrelevant” even though Count Dankula made clear the video was a joke.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″ el_id=”po6″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”6. Malicious Communications Act” font_container=”tag:h1|text_align:left” use_theme_fonts=”yes”][vc_column_text]The Malicious Communications Act 1988 states that any person who sends to another person a letter, electronic communications or article of any description which conveys a message which is indecent or grossly offensive, a threat or information that is false and known or believed to be false by the sender; or any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature is guilty of an offence if their purpose in sending it is to “cause distress or anxiety to the recipient”.

Prosecutions under Malicious Communications

Roman Catholic Veronica Connolly, who objected to the morning-after pill, sent images of aborted foetuses to pharmacies. Connolly was prosecuted under the Malicious Communications Act 1988, which she held prosecution violated her right to freedom of expression under Article 10 of the ECHR. Her appeal against prosecution was dismissed after it was deemed that Connolly’s right to express her views did not justify the distress and anxiety she intended to cause those who received the photographs and they had the right not to receive such material. It was significant in that it was argued those who received the material were in no position to influence public debate.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_separator el_width=”80″][/vc_column][/vc_row][vc_row][vc_column][vc_custom_heading text=”Ackowledgements” use_theme_fonts=”yes”][vc_column_text]This guide was produced by Index on Censorship, in partnership with Clifford Chance.[/vc_column_text][/vc_column][/vc_row]

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