Lord Moynihan of Chelsea (Con)

My Lords, my prior amendment would have removed criminalisation of offensive speech. This second amendment would remove criminalisation of hate as a motive. Mostly this relates to where, if a particular kind of hate directed at particular protected characteristics is proved to be involved, then the crime is considered to be aggravated and so the sentence is then increased. It also includes crimes associated with the stirring up of hatred. Enhancing a convicted person’s sentence to an aggravated offence is a peculiar idea. In his latest Netflix special, which I am quite sure that most noble Lords have watched at least once, the comedian Ricky Gervais directly mocks this law—to loud audience applause. Recognition of the foolishness of the idea has now spread into popular culture. If I kick someone to the ground—I am not very good at fighting so I probably would not, but if I did—either for no reason or, let us say, because I hated their ginger hair, and I caused them grievous damage, I would go to jail for five years. But if I did exactly the same because I hated their sexual orientation or some other protected characteristic, that could be 10 years. Ricky Gervais pointed out that this implies that motiveless crime or a crime motivated by hate against a non-protected characteristic is not as bad as the same crime where there is hatred against a particular protected characteristic. I find that nonsensical and so did he. As he said to applause, “It’s a crime. Punish the crime”. Prosecution would certainly be far simpler and investigations far more straightforward if we just addressed the crime and not the thoughts behind it. The whole idea of punishing thought is what used to be described as happening in a totalitarian state: thought crime. Stirring up violence directly should, of course, be criminalised, but criminalising the stirring up of hatred towards people with protected characteristics falls foul of free speech concerns in two different ways. First, it criminalises someone’s words by proving an intent to stir up based on the individual’s protected characteristics, which is very hard to discern. Secondly, it criminalises the stirring up of certain, specified thoughts about people with those protected characteristics in other people’s minds, which is equally hard to discern. Note that the current popularity of the TV series “The Traitors” is precisely because of how impossible it is to detect another’s hidden thoughts. If those clever people on TV cannot do it, what chance has a court? It would be far better to criminalise just the stirring up of violence: after all, if violence is stirred up, a conviction occurs, so no further prosecution is necessary; if no violence is stirred up, given the concerns that will be raised about free speech and the like, why criminalise the words? The key provisions in this amendment are, first, to repeal or omit Parts III and 3A of the Public Order Act 1986, which increase the imprisonment term to up to seven years when, in addition to the original crime, there is also the intentional stirring up of hate or likelihood that hate will be stirred up based on race, religion or sexual orientation—not disability, interestingly enough, as the noble Baroness, Lady Brinton, will note. Secondly, it would omit Sections 28 to 33 of the Crime and Disorder Act 1998, which increase the imprisonment term to up to 14 years when an assault, criminal damage, public order offences or harassment are “racially or religiously aggravated”. Thirdly, it would omit Section 66 of the Sentencing Code, which increases sentences for certain crimes where there is, in addition, hostility to actual or presumed racial, religious, disability, sexual orientation or transgender characteristics. Stirring up, intentional or otherwise, is considered an aggravator that leads to higher sentences, although there is a somewhat ambiguous partial get-out for religious hostility. I will not repeat the points that I made in my speech on the previous amendment about the multiple ways in which these laws fail to work, but I promised then to talk in particular in the speech on this amendment about the way in which hate crime law is clogging up the judicial system—so here goes. First, police forces are wasting thousands of hours on investigating hate crime allegations. As my noble friend Lord Young of Acton pointed out, dozens are arrested every day for online posts. Around 140,000 hate crimes are recorded annually across race, sexual orientation, religion, disability and transgender issues. The police are now being sued for wrongful arrest by, among many, Graham Linehan. The noble Baroness, Lady Nicholson, has alleged that, in that case, the police were manipulated into the arrest by a transgender former police constable who had been dismissed for gross misconduct some time before. A general public perception now arises that phone theft is downplayed, shoplifting ignored, and carjacking, burglaries and sexual offences all have less time spent on them than if the police could focus on them rather than being distracted by their pursuit of hate crime. Secondly, the Crown Prosecution Service is flummoxed by what the law actually says. Isabel Vaughan-Spruce has been left in legal limbo for almost a year after being arrested for standing in silence in an abortion buffer zone, with the CPS still unable to decide whether she should be prosecuted. She has already received five-figure payouts from the police—as I mentioned, that is our money—for previous unlawful arrests, but, again, the year-long process is her punishment. The Koran burner’s violent knife attacker was given only a suspended sentence, yet the CPS is still seeking to convict the Koran burner himself of a criminal offence using the violence of his attacker as proof that the Koran burning stirred up disorder. This is a blasphemy law in all but name. The Law Lord Jonathan Sumption has pointed out that the CPS has issued official advice that hatred can include “ill-will”, or ill feeling, “spite, contempt, prejudice, unfriendliness”— so now we have compelled friendliness—and “antagonism, resentment and dislike”. The CPS showed its advanced level of confusion by advising that: “Evidence of … hostility is not required for an incident or crime to be recorded as a hate crime or hate incident”. It has now withdrawn that last piece of advice, but not before sowing much confusion. We cannot blame the CPS too much; the legislation is, overall, a dog’s dinner. The list of hate words in the actual legislation is long, including anxiety, insulting, distress, harassment, alarm, threatening, annoyance, inconvenience and abusive. In some of the hate crime laws, only one or two of these words appear; in others, up to five appear, but never the full nine words in any of the legislation. The word “distress” happens to be the most favoured in the legislation, appearing in seven out of the 11 laws. Poor old “annoyance” appears in only one of these laws. As for the five protected characteristics that are mentioned in the various laws, again, it is an incoherent mishmash. Some hate laws mention only one protected characteristic, while only the Sentencing Code mentions all of them. “Transgender” appears the least frequently. We could, with difficulty, make an attempt to help the CPS by clearing all of this up, but we could also sort out the problem much more easily by abandoning the whole hate crime approach, focusing on the deed rather than the thought in what we prosecute. Thirdly, the courts are burdened. The Government are proposing to abolish many jury trials because the courts are overworked. If we got rid of hate crime laws, is that not a better way to free up court time? Because of the ambiguity in the law, it is a postcode lottery at the courts, with acquittals on the silent prayer issue in Birmingham but convictions in Bournemouth. Fourthly, the prisons are overburdened. I estimate that there are just a few hundred, very likely fewer, hate crime offenders currently imprisoned. But given the recent reports of a crime wave due to violent prisoners having been released early, surely every single freed-up prison place that could come from the abolition of these laws should count as a blessing. I had almost forgotten to include the Probation Service, but was handily reminded that it is burdened as well by a newspaper article today revealing that Lucy Connolly—I do not think I need to say who she is—has been told by her probation officer that she was risking being sent back to jail, after spending around a year there for a tweet, after some random, unknown member of the public complained that they were offended and that she was inciting violence because she had retweeted a meme suggesting that Donald Trump should send troops to kidnap Keir Starmer. As far as I know, there are quite possibly some Labour Peers and MPs who share her sentiment, but, even if they express that sentiment in public, I would argue that they should definitely not go to jail for doing that. It is yet another example of the metastasis of these hate laws and a waste of probation officers’ time. All these problems could be resolved were we to cut out or severely cut back on this large and recently introduced body of hate crime law. I urge noble Lords to embrace the benefits of cleaning up and slimming down our criminal law, focusing better on the real physical and cybercrime that besets our country at this time, which in many cases goes unpursued and unpunished because there are not enough judicial resources to pursue those crimes vigorously enough. To that end, I beg to move this amendment.