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Tutor: Ge Chen
Critically comment on the provisions specifically aimed at hate speech on grounds of race,
religion and sexual orientation, taking account of relevant case-law. They provide a hierarchy of
protection, the protection against hate speech on grounds of race attracting the highest level.
Comment on any possible justifications for the varying levels of protection, and also on the
relationship between the provisions and the protection for free expression under Article 10
ECHR, scheduled in the Human Rights Act, taking account of relevant Strasbourg case-law.

Racial Hate Speech.

Racial hate speech was initially catalysed in s.6 of the Race Relations Act 1965 (RRA),

which first established the offence for stirring up racial hatred, to address the issues of public

order and ensure the safeguarding of individuals from the impact of offensive and incendiary

racist speeches.1 This was subsequently amended into The Public Order Act 1986 (POA

1986), giving rise to laws regulating the incitement of racial hatred within Part III. S. 18 of

the POA 1986 denotes that a person would be liable for stirring up racial hatred if they were

to use “threatening, abusive, or insulting words or behaviour”.2 Despite race being given the

highest protection in comparison to other irreparable harms such as to religion and sexual

orientation, R v Griffin BBC News (2006) demonstrates the shortfall of the POA 1986 due to

the difficulty in proving a defendant’s intention to stir up racial hatred or his likeliness to

have intended to do so. British National Party (BNP) leader, Nick Griffin was charged with a

s. 18 offence after making racist remarks to BNP supporters at a pub, including describing

Islam as a “wicked, vicious faith” and saying Muslims were turning Britain into a “multi-

racial hell hole”. Objectively, the defendant’s words were “threatening, abusive, and

insulting” to Muslims, but the court upheld the argument in favour of him as his words were

merely part of his campaign speech of an official and legitimate party to motivate BNP

members.3 Fenwick sheds light on how the POA 1986 attempts to balance the protection of

1
Helen Fenwick, Fenwick on Civil Liberties and Human Rights (5th edn, Routledge-Cavendish 2016) 425.
2
Public Order Act 1986, s. 18(1).
3
Paul Stokes, ‘White society is now a hell-hole, said BNP boss on race charges’ (The Telegraph, 18 January
2006) < https://www.telegraph.co.uk/news/uknews/1508079/White-society-is-now-a-hell-hole-said-BNP-boss-
on-race-charges.html> accessed 14 January 2024.
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free expression with the need to prevent reasoned arguments of a racist nature entering the

realm of being threatening, abusive, or insulting by emphasising on the manner in which

those racist expressions are delivered.4 However, this merely shows how narrowly the

judiciary defines such racially-targeted offences. This approach further permeates the law’s

tolerance of Islamophobia.

Similarly, the outcome in R v Sheppard5 indicate the judiciary’s prioritisation of the manner

and dissemination of racist material rather than its substance. Under s. 19 of the POA 1986,

an individual would be convicted if they publish or distribute written material that is

threatening, abusive, or insulting and they intend or are likely to intend to incite racial hatred

through it. The defendants in Sheppard were convicted for publishing racially inflammatory

content online, including a pamphlet titled “The Holohoax”. Like Griffin, Sheppard was

decided on a manner-basis as the court was more focused on the fact that the materials were

viewable and downloadable to the public, despite the host website being in California. The

fact that a s. 19 offence may be committed without actual proof of anyone viewing the

material demonstrates the court’s preference for a manner-based approach. Hence, it did not

matter that there were insufficient publishees as the court was merely concerned with the

accessibility and availability of such written materials to the public. This could be a

recommendation for s. 19(3)’s requirement for the publication to be made available to the

public or a section of the public to specify a clause stressing on the published material’s

accessibility and availability.

Religious Hate Speech.

4
Helen Fenwick and Richard Edwards, Fenwick on Civil Liberties and Human Rights (5th edn, Routledge-
Cavendish 2016) 427.
5
[2010] EWCA Crim 65.
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Governing the incitement of religious hate speech, s. 29B of the POA 1986 states that an

individual using threatening words or behaviour, or displaying any written material deemed

threatening, will be committed of an offence if they intended to stir up religious hatred. The

exclusion of terms such as “abusive or insulting” in s. 29B could be seen as a beneficial move

by the Law Lords. With just “threatening” words or behaviour being criminalised, it removes

any problematic categorisation of hate speech, contributing to the safeguarding free speech.

However, the inclusion of a “freedom of expression” defence in s. 29J POA 1986, where

“discussions, criticisms or expressions of antipathy, dislike, ridicule, insult, or abuse of…

religions or beliefs” are deemed lawful, narrows the possibility of successful prosecutions of

religious hatred. One of the few notable cases of this is R v Bilal Ahmad, where the

defendant, on top of being found to have promoted or possessed material likely to promote

terrorism, had clearly demonstrated the threat element of s. 29B by listing out MPs who voted

in favour of war in Iraq, provided instructions on setting up appointments with them and a

link to a supermarket website selling knifes. Goodall highlights this issue as a significant gap

in the POA 1986 when deeming hate speech as “religious” as its incitement would be lawful,

while hatred stirred up seen as “racial” procures a guilty defendant.6 This decreases the

chances of potential liability for religiously motivated hate speech. Therefore, s. 29B and s.

29J provide these crimes with an identity, rather than fulfilling its intention to prohibit or

restrict them. Nonetheless, Fenwick remains of the view that both racial and religious hate

speech provisions can be narrowed further, as there is still no requirement to show that actual

societal disorder was caused,7 or that the actual “stirring up of religious hatred” occurred,

merely an intention was necessary.

6
Kay Goodall, ‘Incitement to Religious Hatred: All Talk and No Substance?’ (2007) 70 Modern Law Review
89, 92.
7
Helen Fenwick, Fenwick on Civil Liberties and Human Rights (5th edn, Routledge-Cavendish 2016) 431.
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Hate Speech on Sexual Orientation.

Schedule 16 of the Criminal Justice and Immigration Act 2008 amended Part IIIA of the POA

1986 to include a provision on hatred towards one’s sexual orientation to reflect the societal

landscape with the gradual inclusion of the LGBTQ+ community in society. Governing the

incitement of hate speech pertaining to sexual orientation, s. 29C of the POA 1986 sets out

that a person would be liable for stirring up hatred based on sexual orientation, when they

publish or distribute written material of a threatening nature, with the intention of stirring up

such hatred. Comparable to s. 29J of the religious hate speech provisions, a narrow clause, s.

29JA, safeguarding the freedom of expression exists for sexual orientation hate speech. The

clause stipulates that discussion or criticism of sexual conduct or practices and encouraging

people to change or avoid such conduct or practices, will not be considered threatening or

intending to incite hatred. Despite having similar saving clauses, s. 29J explicitly states that

nothing should prevent discussions, criticisms, or expressions of antipathy, dislike, ridicule,

insult, or abuse of specific religions. The language used here clearly allows for a more robust

range of expressions, even if it involves criticisms or mockery of religious practices.8

Conversely, Goodall considers s. 29JA to be less assertive in which is does not encompass as

explicit of provisions as s. 29J, where expressions of dislike and ridicule are permitted.9

Furthermore, the inclusion of only expressions of threat calls for a more limited application

of s. 29JA. This was exemplified in R v Ihjaz Ali, Kabir Ahmed and Razwan Javed (2012),

where the holding up of anti-gay pamphlets entitled “G.A.Y God Abhors You” and “Turn or

Burn” failed to meet s. 29JA’s terms, but the text stating “that the death sentence was the only

way [homosexuality could be] erased from corrupting society”10 passed the threshold.

8
Kay Goodall, ‘Challenging Hate Speech: Incitement to Hatred on Grounds of Sexual Orientation in England,
Wales and Northern Ireland’ (2009) 13 International Journal of Human Rights 211, 215.
9
Ibid.
10
Judiciary of England and Wales, ‘R v Ihjaz Ali, Razwan Javed and Kabir Ahmed: Sentencing Remarks of HHJ
Burgess’ (Judiciary.uk, 10 February 2012) <
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Justifications for Varying Levels of Protection.

Racial hate speech is accorded the highest level of protection due to several reasons. Racial

hate speech provisions offer the most comprehensive approach by deeming such by

convicting a defendant if their speech is deemed to be “threatening, abusive, or insulting”. 11

This multi-faceted criterion enables for a more nuanced evaluation of a wide range of

expressions contributing to racially motivated disorder. Further, the inherent subjectivity in

determining racial hate speech allows for flexibility when assessing a defendant’s specific

intent.12 For instance, evaluating whether the defendant intended to stir up racial hatred or if

their speech was likely to do so, widens the scope of what could constitute as racial hate

speech. This heightened protection for race can be attributed to the unique nature of racial

identity. Unlike sexual orientation, which could be argued to be an element of personal

choice, or religion where conversion is possible, race is inherently unchangeable, and an

immutable characteristic determined by birth right rather than autonomous choice. This

accentuates the vulnerability of victims to racial hatred as they cannot alter their racial

background.

While racial hate speech provisions offer a higher threshold for protection, religious speech

provisions arguably should be afforded greater flexibility. Unlike race, religious organisations

are often well-organised and well-funded, equipping them with the resources to effectively

counter extreme speech.13 Often, they also actively engage in legal proceedings contributing

to debates on controversial topics such as abortion14 and assisted suicides.15 The complex and

conflicting nature of religious discourse encompass fundamental aspects such as the true
https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/sentencing-remarks-r-v-ali-javed-
ahmed.pdf > accessed 17 January 2024.
11
Public Order Act 1986, s. 18(1).
12
Ibid, s. 18(1)(a)-(b).
13
Peter Cumper, "Freedom of Expression" in David Harris and Sarah Joseph (eds), The International Covenant
on Civil and Political Rights and United Kingdom Law (Clarendon Press 1995).
14
Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480.
15
Pretty v United Kingdom (2003) 36 EHRR 1.
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God, the origins of the universe, the path to enlightenment, and ethical living, separates itself

from race.16 Moreover, a significant objective of many religions is to persuade and gain new

followers, placing them in a competitive edge with each other.17 Thus, recognising the

distinctive attributes of religious hate speech is imperative in fostering a dynamic and

inclusive public discourse, accommodating the complicated nature of religious faith and

belief.

Hate Speech Provisions and the Protection of Free Expression Under Article 10 ECHR.

Article 10 ECHR refers to the right to freedom of holding opinions, receive, and impart

information and ideas without interference by public authorities regardless of circumstance.

With regards to religious hate speech, Otto-Preminger-Institut v Austria18 holds that a wider

margin of appreciation would be given in cases concerning religion as the government is

allowed to have more discretion on regulation artistic expression deemed offensive compared

to public speeches. With that, a common argument about religious hate speech laws’

compatibility with Article 10 ECHR is that the incitement of religious hatred is incompatible

with Convention values, and therefore, excluded from Article 10 protections. In Norwood v

DPP,19 the court held that Mr Norwood’s application under Article 10 was inadmissible as

the images he had displayed of the Twin Towers in flames with the label “Islam out of Britain

– Protect the British People” were deemed a public attack on Muslims in the UK, hence was

incompatible with Convention values such as “tolerance, social peace, and non-

discrimination”.20 Instead, Norwood would be compatible under Article 17’s prohibition of

abuse of rights, presenting a chilling effect on hate speech under Article 10. Mchangama and

16
Ivan Hare, ‘Crosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred’ Public Law
521, 528.
17
Jeremy Waldron, “Rushdie and Religion” in Jeremy Waldron (ed), Liberal Rights: Collected Papers 1981-
1991 (Cambridge University Press 1993).
18
(1994) 19 EHRR 34.
19
[2003] EWHC 1564.
20
Ibid.
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Alkiviadou criticise the ECHR’s option for an excessively restrictive approach by declaring

incompatibility rather than acknowledging the importance of free expression of ideas,

especially on matters of profound public concern.21

As for sexual orientation, the ECHR held that discrimination based on sexual orientation is of

the severity to that of race and ethnicity,22 making it a violation under Article 10. The courts

affording a wide margin of appreciation can be seen in Beizaras and Levickas v Lithuania23,

where the courts upheld that the applicants’ right to private life and principle of non-

discrimination were violated with regards to a refusal to conduct criminal proceedings

pertaining to homophobic comments on a picture of two men kissing. This case is significant

as it is only case where speech targeting protected characteristics is deemed to come under

ECHR’s safeguard.24

21
Jacob Mchangama and Natalie Alkiviadou, ‘Hate Speech and the European Court of Human Rights: Whatever
Happened to the Right to Offend, Shock or Disturb?’ (2021) 21 Human Rights Law Review 1008, 1030.
22
Vejdeland and Others v Sweden (Application No. 1813/07) (2012).
23
(Application No. 4128815) (2020).
24
Jacob Mchangama and Natalie Alkiviadou, ‘Hate Speech and the European Court of Human Rights: Whatever
Happened to the Right to Offend, Shock or Disturb?’ (2021) 21 Human Rights Law Review 1008, 1033.