The Freedom to Hate

On 15 March 2019, Brenton Tarrant entered two mosques in Christchurch, New Zealand. He murdered 51 Muslim worshippers. His stated aim was to kill Muslims.

If a person, in England and Wales, tweets #TarrantWasRight or claims in a podcast that “Tarrant did a good deed” are they committing a criminal offence?

The starting point is that everyone is entitled to hold opinions, no matter how reprehensible or how far outwith what is generally thought of as acceptable. Everyone is entitled to express their view on any matter, even if that view is generally regarded as offensive or even abhorrent. The boundary of the legal limit to the protected right to freedom of speech and expression is patrolled by the criminal law.

At the lower end of the spectrum a person may be committing an offence of incitement to racial or religious hatred contrary to Parts 3 and 3A of the Public Order Act 1986. Those parts create several offences but they all have common elements. There must be:

• “threatening, abusive or insulting words or behaviour”; and
• Intent to stir up racial or religious hatred; or
• That in all circumstances racial or religious hatred is likely to be stirred.

The Act defines racial or religious hatred as hatred against a group defined by their race, religion or absence of religion. The maximum sentence is seven years. So does the tweet in praise of Tarrant’s terrorist atrocity fulfil the elements of this offence? Seemingly not, certainly if the element of intent to stir up religious or racial hatred is absent.

At the more serious end of the scale, there is the offence of encouraging terrorism contrary to section 1 of the Terrorism Act 2006. ‘Encouragement’ may be direct or indirect. It must be encouragement to the commission, preparation or instigation of acts of terrorism as defined by section 1 of the Terrorism Act 2001[1]. Glorification of terrorism—such as expressed support for terrorist groups or praise for specific terrorists—is not enough. It is a factor a jury may consider when assessing whether there is indirect encouragement, but it is insufficient alone to form the actus reus of the offence. So far as the mens rea is concerned the defendant must either intend or be reckless as to whether members of the public will be directly or indirectly encouraged.

The maximum sentence for encouragement of terrorism is 15 years—over double that for inciting racial hatred.

Where does that leave the hypothetical Tarrant supporter? Again, without any intention to encourage any similar act of terrorism, no offence would be committed, even if the tweet objectively held that quality.

These sorts of statements are therefore likely to fall in the gap between inciting racial or religious hatred and encouraging terrorism. It is in that space that the argument for a further offence of ‘hate speech’ has grown.

In the report ‘Operating with Impunity, Hateful extremism: The need for a legal framework’[2] the following further examples are given that would not be criminalised under the current law:

• Possessing Islamist propaganda materials, such as violent sermons and Daesh beheading videos, and sharing them online in circumstances that do not give rise to a reasonable suspicion that they are held for a purpose connected with the commission, preparation or instigation of an act of terrorism. 
• Repeatedly uploading videos online containing anti-Arab conspiracies and blaming Arabs for various harms across the world and political grievances, intending to stir up hatred while promoting a racial supremacist ideology provided the videos avoid using threatening, abusive or insulting words or behaviour.
• An organisation circulating inflammatory pamphlets which promote false claims intended to stir up hatred against an ethnic or religious community which also promote racial supremacist narratives, but which do not include threatening or abusive or insulting components.
• Praising the terrorist actions and ideology of Osama Bin Laden to a group of schoolchildren, without explicit or implicit encouragement to emulate his actions.
• Activity which intends to radicalise and recruit children to support terrorist ideologies through sharing online propaganda that glorifies and justifies terrorist acts without encouraging them to commit, prepare or instigate acts of terrorism. 
• An Islamist organisation holding events, inviting Salafi-jihadi preachers and Al Qaeda ideologues who routinely espouse Islamist extremist ideology to speak and publishing their work provided that they avoid using abusive, insulting or threatening words or behaviour.

In cases of encouragement of terrorism, juries are reminded of the importance of freedom of speech. The right to freedom of speech cannot provide a defence but juries are told that defendants are entitled to hold views, no matter how vile. Section 29J of the Public Order Act 1986 explicitly states that nothing is designed to prohibit criticism of religion.

Plugging the apparent gap by criminalising glorification of terrorist acts, without more, would further reduce the space for speech relating to topics or individuals most society considers reprehensible. It would reduce the scope for speech that could cause offence to minority groups, including ethnic and religious minorities. It would provide criminal sanction to help protect vulnerable groups such as children from radicalisation that falls short of current criminal offences. The offence would also become perilously close to being one of strict liability, though no criminal offence of such seriousness could entirely lack mens rea.

However, the bar between freedom of speech and a criminal offence is set high for a reason. Under our current law speech needs to cross a high threshold before it attracts criminal sanction. The fact of criminalisation is a significant interference with freedom of expression. Any new offence of ‘hate speech’ as proposed would undoubtedly represent a significant incursion into that right. 

Criminalising simple glorification could not be done without further interfering with freedom of expression. It cannot be counterbalanced by providing lesser sanction. Any proposal requires fully informed debate in Parliament.

[1] ‘Terrorism’ is the use or threat of action which involves serious violence against a person, serious damage to property, or endangers a person’s life, and the use or threat is designed to intimidate the government, the public or a section of the public, and is made for the purpose of advancing a political, religious or ideological cause - whether in this country or abroad.

[2] Commission for Countering Extremism, 24 February 2021.