Monday, 14 December 2009

Harassment and Hatred in Liverpool and Canada

Two cases this week involving Religion and Free Speech are interesting. In Liverpool a Christian couple were cleared on a charge of harassing a Muslim guest who was staying in their Hotel and in Alberta, Canada a Christian Pastor was cleared on an allegation of inciting hatred of homosexuals. Both cases were very different in their facts but underlying them both is the common question of whether or where the law should become involved in situations where people are offended by another person expressing their personal opinions.

In the Liverpool case Ben and Sharon Vogelzang were charged with religiously aggravated use of
"threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress"
contrary to s5 Public Order Act 1986. They were alleged to have insulted a Muslim guest at their hotel when she came down wearing a Hijab, they were alleged to have described Mohammed as a warlord and the Hijab as a symbol of female subjugation. At the end of a two day trial the District Judge rejected the prosecution case on the basis that he was not satisfied about the complainants evidence.

Following the acquittal the Crown Prosecution Service has been criticised for its decision to bring the case but I do not agree with that way of thinking. I am a former Crown Prosecutor and I know that it is the job of courts, not prosecutors, to decide whether someone is guilty or innocent and no prosecutor should be criticised simply because a judge did not believe a witness. My criticism of the CPS is that the case should not have been brought regardless of whether the verdict was guilty or not guilty, to put it in terms of
The Code for Crown Prosecutors there was no "public interest" in bringing to court a case which essentially involved an argument, maybe a heated argument, but nevertheless nothing more than an argument. The Public Order Act exists in order to preserve the public peace and it should not be misused in order to stifle the expression of views however strongly expressed

In a case called Majrowski v Guy's and St. Thomas' NHS Trust [2006] UKHL 34 (which dealt with allegations of harassment under the Protection from Harassment Act 1997) in para 33 Lord Nichols said
"courts will have in mind that annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people."

whilst in
Dehal v CPS [2005] EWHC 2154 (Admin) Mr Justice Moses said, in para 5
"the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law"

Similarly in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, Jacob LJ said (at paragraphs 17-19):
“in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene"

I would suggest that Police and Prosecutors should remember these words when deciding whether to arrest people or to bring a prosecution in cases involving arguments. It may be surprising to have a situation where a Hotelier gets involved in an argument with a customer over religion and it can certainly be regarded as bad business sense but that is a long way from being anywhere close to a situation where a criminal investigation let alone a prosecution was justified. The Vogelzang case does not, of course create any legal precedent but I hope that the result and the public debate on the case will discourage the Police and CPS from bringing a similar prosecution in the future

The Canadian case of Boissoin v. Lund, 2009 ABQB 592 (CanLII) is however a precedent and it could become an important one. The case involved a letter written to an Alberta Newspaper and published on June 17 2002. The letter was written by the Rev. Stephen Boissoin, Chairman of the Concerned Christian Coalition, Red Deer, Alberta and it strongly criticised suggestions that Schools in Alberta should teach about or support homosexual practice (you can read the full letter in para 13 of the judgment)

Following the publication of the letter a Dr Lund brought a case under s3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act which says

"No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a class of persons, or
(b) is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons."

It is important to note that this did not involve a criminal prosecution by Dr Lund but rather the bringing of a civil claim before the Alberta Human Rights and Citizenship Commission which culminated in the Commission issuing an Injunction preventing Rev Boisson writing similar letters or expressing similar views in the future. In that respect the case had interesting, and disturbing parallels with the Australian case of The Islamic Council of Victoria v Catch the Fire Ministries [2004] VCAT 2510 where the Islamic Society sought an Injunction to prevent two Christian Pastors expressing their views on Islam.

The Injunction which was granted in the Catch the Fire case and the similar gagging Injunction initially granted in the Boisson case both demonstrate the dangers of giving Courts dealing with discrimination issues the power to issue Injunctions. It is the danger of abuse of Injunctions to prevent free debate, and the misuse of the concepts of Harassment, vilification etc which is the main reason why it is important to ensure that the current Equality Bill does not include a provision permitting Civil Claims involving allegations of Religious or Sexual Orientation Harassment.

The Boisson judgment merits careful reading. A large part of it deals with specifically Canadian issues regarding the legislative powers of the province of Alberta under the Canadian Constitution and so has no specific relevance to jurisdictions outside Canada but Paras 15 - 23 deals with issues of general relevance such as the danger of trying to assess whether a letter incited violence by reference to a newspaper report rather than by evidence from a witness. It also referred to the danger of courts making assumptions rather than requiring factual proof.

The second point that the Judgment makes is that letters (and by analogy posters, interviews etc) have to be read in their totality rather than "cherry picking" particular bits for condemnation, context is important. For example in paras 63-64 the Judge rejected evidence about how "Impressionable" young people might be affected by the kind of thing said in the letter by pointing out that there was no evidence that such "impressionable" young people tended to be readers of Newspaper letters pages.

The judgment was also critical of a cross examination question which was merely scurrilous rather than designed to elicit the truth
"explain the difference between the letter and Adolf Hitler’s book Mein Kampf"
This rather reminded me of a similar inappropriate question in the Catch the Fire case "do Muslims and Christians pray to the same God".

But the core of the judgment (for me at any rate is in para 95
"complaints about factual error or false reasoning by the author would seem to be properly met, at least at first instance, by counter speech correcting those failures - not by restraining the remarks"

Those words should be engraved on the desks of all Police "Hate Crime Units"

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