Home Office circular 029 / 2007

The Racial and Religious Hatred Act 2006

Introduction

This circular relates to the Racial and Religious Hatred Act 2006, which received Royal Assent on 16 February 2006. It has been drafted by the Home Office in order to assist understanding of the Act.

It does not form part of the Act and has not been endorsed by Parliament. The circular needs to be read in conjunction with the Act itself, and the explanatory notes to the Act.  Neither this circular nor the explanatory notes have any legal force.

Summary

2. The Act amends the Public Order Act 1986 (the 1986 Act) by creating new offences of stirring up hatred against persons on religious grounds and amends section 24A of the Police and Criminal Evidence Act  (PACE) 1984 so that the powers of citizens’ arrest do not apply to the offences of stirring up religious or racial hatred.

3. The new offences apply to the use of words or behaviour or display of written material (new section 29B), publishing or distributing written material (new section 29C), the public performance of a play (new section 29D), distributing, showing or playing a recording (new section 29E), broadcasting or including a programme in a programme service (new section 29F) and the possession of written materials with a view to display, publication, distribution or inclusion in a programme service or the possession of recordings with a view to distribution, showing, playing or inclusion in a programme service (new section 29G).

For each offence the words, behaviour, written material, recordings or programmes must be threatening and intended to stir up religious hatred. Religious hatred is defined as hatred against a group of persons defined by reference to religious belief or lack of religious belief.

Background

4. There are existing offences in Part 3 of the 1986 Act against stirring up racial hatred.  While Jews and Sikhs have been deemed by the courts to be racial groups, Muslims and Christians, for example, have been considered as religious rather than racial groups.  This Act creates new offences of stirring up hatred against persons on religious grounds by inserting a new Part 3A into the 1986 Act.

Territorial extent

5. The Act extends only to England and Wales.

The Act: commentary on clauses

Section 1: Hatred against persons on religious grounds

6. This section gives effect to the Schedule, which creates a new Part 3A of the 1986 Act to create offences involving stirring up hatred against a group of persons on religious grounds. The Act will ensure that the criminal law protects all groups of persons defined by their religious beliefs or lack of religious belief from having religious hatred intentionally stirred up against them in cases set out in section 29B to 29G in new Part 3A of the 1986 Act.

Section 2: Racial and religious hatred offences: powers of arrest

7. Section 2 amends section 24A of the Police and Criminal Evidence Act 1984 so as to exempt the offences of stirring up racial or religious hatred (in Parts 3 and 3A of the 1986 Act) from the power of citizens' arrest. Section 24A was inserted into the Police and Criminal Evidence Act 1984 by section 110 of the Serious Organised Crime and Police Act 2001. Section 2 ensures that only constables will have the power to arrest persons in the context of these offences.

Schedule: hatred against persons on religious grounds

8. The Schedule inserts a new Part 3A into the 1986 Act which deals with offences involving stirring up hatred against people on religious grounds. New section 29A defines 'religious hatred'. The definition covers hatred against a group of persons defined by reference to their religious belief or lack of religious belief but does not seek to define what amounts to a religion or a religious belief. It will be for the courts to determine whether any particular belief is a religious belief for these purposes.

9. The reference to 'religious belief or lack of religious belief' is a broad one, and is in line with the freedom of religion guaranteed by Article 9 of the European Convention on Human Rights.

It is intended to include, although this list is not definitive, those religions widely recognised in this country such as Christianity, Islam, Hinduism, Judaism, Buddhism, Sikhism, Rastafarianism, the Baha'i faith, Zoroastrianism and Jainism. Equally, branches or sects within a religion can be considered as religions or religious beliefs in their own right.

The offences also cover hatred directed against a group of persons defined by reference to a lack of religious belief, such as atheists and humanists. The offences extend so far as to include hatred against a group where the hatred is not based on the religious beliefs of the group or even on a lack of any religious belief, but on the fact that the group do not share the particular religious beliefs of the perpetrator.

10. New sections 29B to 29F create new offences of stirring up religious hatred. These offences involve the use of words or behaviour or display of written material (29B), publishing or distributing written material (29C), the public performance of a play (29D), distributing, showing or playing a recording (29E) and broadcasting or including a programme in a programme service (29F).

11. In relation to each offence the words, behaviour, written material or recordings or programme must be threatening, and intended to stir up religious hatred. The offence has a significantly different threshold from the racial hatred offence, for which it is an offence to use not only words or behaviours which are threatening, but also words or behaviours which are abusive or insulting, and which are likely to incite hatred as well as those intended to incite hatred.

12. In the case of the offence at 29B, there is a defence where the words or behaviour are used or the written material displayed inside a private dwelling and the defendant had no reason to believe that they would be heard or seen by a person outside that or any other private dwelling.

13.  New section 29G creates a new offence of possession of threatening written material with a view to display, publication, distribution or inclusion in a programme service intending thereby to stir up religious hatred. 

It also creates a new offence of possession of recorded images or sounds with a view to distribution, showing, playing or inclusion in a programme service intending thereby to stir up religious hatred.  If there are reasonable grounds for suspecting that a person is in possession of material or a recording in contravention of section 29G then a justice of the peace may issue a warrant authorising the police to search the premises where it is suspected the material or recording is situated.

14. New section 29I  provides that the court will order written material or any recording shown to be related to an offence under new section 29B (relating to the display of written material), 29C, 29E or 29G to be forfeited.  This forfeiture will not be effective until any possible appeal has been decided or abandoned.

15.  Note that the provisions in relation to entry and search and forfeiture have application in Scotland by virtue of new sections 29H(2) and 29I(2)(b).  This was unintended and therefore new sections 29H(2) and 29I(2)(b) and (4) shall not be commenced. 

16. Corporations can be guilty of an offence under the new Part 3A and new section 29M provides that where this is the case, and it can be shown that a director, manager, secretary or other similar officer of the body consented or connived then he or she is also guilty of the offence.   This provision also applies to members of the body corporate where they manage its affairs.

17. There is a very clear statement on the face of the Act to protect freedom of speech:  New section 29J  provides that, 'Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system  or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.'

18. New section 29K makes it clear that the Act does not apply to fair and accurate reports of anything done in the United Kingdom or Scottish Parliaments or to the fair and accurate reports of judicial proceedings made at the time of those proceedings or as soon as reasonably practicable after that time.

19. New section 29L provides that a prosecution for the offences of stirring up religious hatred shall only be brought by or with the consent of the Attorney General. Subsection 29L(3) states that the maximum penalty for a conviction for an offence of stirring up religious hatred is seven years in prison plus a fine.

Implementation

20. Section 3 of the Act provides for commencement. The provisions of the Act will be brought into force by means of a commencement order made by the Secretary of State.

21. The new power of arrest in new section 29B(3)  allows a constable to arrest without warrant anyone he reasonably suspects is committing an offence of using threatening words or behaviour or displaying any threatening written material with the intention of stirring up religious hatred. 

This is not consistent with the new general arrest powers in PACE which provide that an arrest without warrant can be made where necessary for one of a number of specified purposes.  The Government intend that these new general arrest powers should apply to the new offence and therefore new section 29B(3) shall not be commenced. 

22. Internet Service Providers (ISPs)

The police National Community Tension Team (NCTT) will act as contact point for ISPs who have had reports of websites in respect of which complaints or allegations that an offence under the Act is being committed have been made.  An email address will be provided to ISPs  through which they can contact the NCTT. 

The NCTT will be able to offer initial advice.  If there are grounds for an investigation to be carried out, the NCTT will refer the case to the relevant force.  There will be a need to consider whether any other offences may have been committed as well as or instead of an offence under the Act. 

ISPs should also consider whether a website which is the subject of complaints or allegations breaks their own codes of conduct / terms and conditions and whether it should be taken down for that reason. Further details of this process will be set out in a separate document.

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