Monday, 24 May 2010

The autonomy of bishops, and suing the Vatican

Two excellent and detailed articles in an American Catholic journal regarding the current attempts in the USA to sue the Pope and/or The Vatican over American Child Sex abuse. Well worth reading

What have you been saying, homophobic wise ?

The story about a Christian Street preacher, Mr Dale Mcalpine, who was arrested fro saying "Homosexuality is a sin" is a worrying reflection of the current obsession by Police and officialdom with the murky concept of "Hate crime".

The actual facts of the arrest of Dale Mcalpine were recorded on video and make worrying watching

The uniformed official grinning vacantly in the background is apparently the PCSO (Police Community Support Officer) who had actually called the Police to report Mcalpine preacher for "Homophobia". The first words of the Police when they arrive is
"Hello sir. What have you been saying, homophobic wise ?"
which hardly constitutes any form of articulate meaningful question and the conversation then gets worse

"McAlpine: I spoke to your officer earlier and he was upset that I was saying homosexuality was a sin – which is what the Bible says. And I affirm that’s what I say because that’s in the Bible. And there’s no law, there’s no law…

Police: Well there is.

McAlpine: No there isn’t.

Police: There is. Unfortunately, mate, it’s a breach of Section 5 of the Public Order Act"

following which Dale Mcalpine was arrested taken to a Police station, made to give his DNA and Fingerprints and eventually charged only to have that charge unceremoniously dropped by the Crown Prosecution Service once the facts of the case were examined by lawyers and Police officers who were capable of using more than one Brain Cell at a time.

If the arresting Police officer had been correct and it was a breach of s5 of the Public Order Act for someone to say that "Homosexuality is a Sin" that would raise some interesting questions; since when did it become the role of the law to decide what is or is not "a sin" and when did it become illegal to say that any form of behaviour was "a sin". If someone says that adultery is a sin can a serial womaniser demand their arrest, can a fat lazy slob demand the arrest of anyone who says that gluttony and sloth are 2 of the seven deadly sins ?

The real question is of course "Were the 3 Police Officers and 2 PCSO's involved in this situation all idiots or is there a problem with the wording of the law itself" ?

Section 5 which is the law that the arresting Police Officer referred to is one of the most common offences used in the Criminal Courts and most Police Officers and Criminal Lawyers can recite it from memory, What it actually says is.

"Public Order Act 1986, s. 5 Harassment, alarm and distress
(1) A person is guilty of an offence if 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,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3) It is a defence for the accused to prove–
(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c) that his conduct was reasonable.

(4) (arrest provisions now irrelevant)
(5) (arrest provisions now irrelevant)

(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

S6(4)Mental element: miscellaneous)
A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly"

So the arrest of Dale McAlpine depended on the Police deciding that he had used "threatening, abusive or insulting words" when he said that "homosexuality was a sin". There is no legal definition of
"threatening, abusive or insulting" because the Courts take the view that words are to be interpreted using their normal and natural meaning. On that basis the words "homosexuality was a sin" were clearly not "threatening" and they were not "abusive" but they could, I suppose, be regarded as "insulting" so the question I pose is "should it be an offence to use words that are insulting ?"

The concept of "insult" is after all very subjective and almost anyone can feel insulted by something. If somebody was to say "Geoffrey Robinson is a much better lawyer than Neil Addison" I might well feel insulted but should I therefore be able to demand that persons arrest, similarly when Nick Clegg denounced David Cameron for having joined up with "nutters" in the European Parliament should he have been arrested ?

To ask the question is itself to state the answer, insults should not of themselves be even considered as criminal. Looking back on the large number of s5 cases I have either prosecuted or defended over the years I cannot think of any "normal" public order situation which could not be covered by the words "threatening and abusive". Most cases under s5 involve people (often drunk) yelling aggressively and making frequent use of the "F" word and that is the sort of situation that s5 and indeed the entire Public Order Act was supposed to deal with, it was never supposed to deal with the situation where individuals, whether street preachers or otherwise, were expressing their personal opinions.

In the case of the Mohamed Cartoons those who objected to them said they were "insulting" and certainly the flexible, and highly subjective, nature of "insult" was one of my main reasons for opposing the proposed religious hatred law which, as originally proposed by the Labour Government, would have criminalised "threatening, abusive or insulting" words.

In one sense the real problem thrown up by the McAlpine case as with the numerous similar incidents of Police over-reaction to complaints of Homophobia, Islamaphobia, racism etc etc is the abysmally low standard of training of Police officers regarding the nebulous concept of "hate crime"; their lack of training about their duty to defend the legal right of free expression and a simple lack of old fashioned common sense.

Improving Police training in this area is therefore a priority however that improved training might benefit from a simple change in the law namely the removal of "insulting" from all offences in the Public Order Act 1986. If the new government is looking for a way of dealing with situations such as those of Dale McAlpine which tend to bring the Police into disrepute then removing "insulting" from the POA is my suggestion and for those who might want to oppose the suggestion I pose the question "what possible situation can you conceive of where a prosecution would be justified for the use of words which are 'insulting' but which are neither 'abusive' nor 'threatening'

PS I this Blog I have used words that could well be considered "insulting" by the PCSO and Police officers involved in the arrest of Dale McAlpine. Will I be arrested next ? I hope not but with the modern Police force one can never be sure.

Saturday, 1 May 2010

'Islam will dominate the world' - Not a Hate Crime

An interesting story in the Daily Mail today

Here a Muslim Graffiti artist (Tohseef Shah) daubed a War Memorial with such gems as 'Islam will dominate the world - Osama is on his way' and 'Kill Gordon Brown' but was not charged with the
Religiously Aggravated Form of Criminal Damage contrary to s30 Crime and Disorder Act 1998 but was only charged with "ordinary" Criminal Damage

The difference is more than merely the name of the offence. Ordinary Criminal Damage where the cost of the damage is less than £5000 (as in this case) carries a maximum penalty of 3 months imprisonment whilst "racially or religiously aggravated criminal damage" carries a maximum penalty of up to 14 years imprisonment so the decision by the CPS not to charge the religiously aggravated form of the offence was extremely significant for the Defendant and, in effect, tied the hand of the Court in how they dealt with Shah.

According to the Newspaper report the reason why the CPS decided not to charge Religiously Aggravated Criminal Damage was because

"The CPS said Shah's offence could not be charged as a hate crime because the law requires that damage must target a particular religious or racial group. It said: 'While it was appreciated that what was sprayed on the memorial may have been perceived by some to be part of a racial or religious incident, no racial or religious group can be shown to have been targeted.'"

Now if that truly was the view of the CPS then the CPS clearly did not bother to read and think about the law before making their decision and they certainly had not read my book where I deal in detail with the definition of "Religiously Aggravated" as defined in s28 of the Crime and Disorder Act 1998 (my emphasis)

28. - (1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below 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 racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
(2) In subsection (1)(a) above-
"membership", in relation to a racial or 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
(4) In this section "racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
(5) In this section "religious group" means a group of persons defined by reference to religious belief or lack of religious belief."

Now the Graffiti in question may not specify which religious group it is aimed at but the words "Islam will dominate the world" is clearly showing hostility towards everyone who is NOT a Muslim ie everyone who LACKS Islamic belief. Therefore Shah could, and in my view should, have been charged with religiously aggravated Criminal Damage relying on the "lack of religious belief" definition in s28(5). That is the specific reason why that wording is used in s28(5) in order to be able to deal with people who hate anyone who is not a member of their religion or their particular subgroup of a religion

At the very least the CPS should have charged both offences and run a trial

Lucky Mr Shah