Religiously aggravated harassment must not be allowed to become blasphemy by the back door.
A militant atheist, Harry Taylor, was found guilty of leaving grossly offensive religious images in a prayer room at Liverpool’s John Lennon airport. He is due to be sentenced on 23 April See report.
Mr Taylor was convicted under the Public Order Act 1986, which does not contain the words “religion” or “religious”. It does not create any religion-based offences.
Mr Taylor’s offence was “intentional harassment, alarm or distress” (“harassment” for short) contrary to section 4A of the Act, which provides:-
A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he:-
a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.
Presumably, it was b) that covered his conduct.
So how does religion come into it? Section 32, of the Crime and Disorder Act 1998, introduced the idea of certain “religiously aggravated” offences, which it defines as follows:-
1) An offence is religiously aggravated if:-
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a religious group based on their membership of that group.
2) In subsection (1)(a) above-
“membership”, in relation to a religious group, includes association with members of that group;
“presumed” means presumed by the offender.
3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph
5) In this section “religious group” means a group of persons defined by reference to religious belief or lack of religious belief.”
These offences include harassment. Section 32 does not create any new offence or convert into harassment conduct that would not have amounted to it before; it merely increases the possible sentence for harassment which is committed in a religiously aggravated way. It increases it, in fact, from a maximum of six months to two years imprisonment.
The aggravating element is the demonstration of, or motivation by, religious hostility. It cannot amount to harassment in itself, or in combination with other conduct which would not, in itself, amount to harassment. Harassment must be established before the aggravating element can even be considered. This is a vital distinction and, in any trial, the judge should always direct the jury:-
- First, to decide whether or not there was harassment and, in doing so, to put out of their minds whether or not it was accompanied by a demonstration of, or motivated by, religious hostility.
- Only if and when they have found that there was harassment, to decide whether or not it was so accompanied or motivated.
We have not seen a transcript of the judge’s summing-up in Mr Taylor’s case. If the above distinction was absent, Mr Taylor might have grounds for appeal.
Terry Sanderson, President of the National Secular Society, said:-
This is a disgraceful verdict, but an inevitable one under this pernicious law. It seems incredible in the 21st century that you might be sent to prison because someone is ‘offended’ by your views on their religion. The blasphemy law was abolished three years ago, but it lives on under the guise of religiously aggravated offences and is several times more dangerous.
Atheism joins the NSS in calling for the abolition of religiously aggravated offences. Until such time as this is achieved, we call upon the judiciary to make the distinction, between harassment and aggravation, in all such cases. We also call upon the Crown Prosecution Service to take account of the distinction in deciding whether or not to prosecute.
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