New hate crime laws pose threat to freedom

The Home Secretary Sajid Javid has made it his mission to fight the rise in hate crime that appears to be sweeping across the UK. Remainers, the BBC, and the Guardian will, of course, try to blame this trend on Brexit and the swell of nativist venom of which they accuse the Leave campaign. There is a broader media narrative, particularly on the Left, that bigotry is on the rise with over 80,000 reported “hate crimes” in 2016/17, representing a 17% increase on the previous year. On the surface, this looks alarming.

The government has responded by asking the Law Commission to look into amending legislation to extend protected status to yet more groups and sub-categories of person and to consider making recommended penalties for hate-aggravated crimes even more severe. To quote Yes, Minister: “Something must be done, this is something, therefore it must be done.” But is ever more legislation and an endless shopping list of protected categories really the answer?

Under Tony Blair the Crime and Disorder Act was amended to introduce specific protection if victims of crime were targeted specifically on grounds of race or religion; these provisions were extended to include disability, sexual orientation, and then gender identity. MP Stella Creasy is now campaigning specifically to outlaw misogyny – however, this is going to be defined – and the Guardian reports today that the Law Commission is even considering including subcultures such as Goths.

The elephant in the room, however, is that the crimes aggravated by hateful motives under the law are already crimes in their own right. Assault – including verbal assault – is forbidden by the common law, and discrimination in the workplace is contrary to the Equality Act.

The likes of Stella Creasy, a Labour MP, make a powerful emotional case by affirming the obvious truth that women should not be made to feel unsafe or be subject to harassment in the street. But why the need for yet more laws to deal with what is already forbidden? Either a criminal act has occurred or it hasn’t – why is the motivation of the assailant or group identity of the victim relevant at all?

A major problem with “hate crime” laws is that whether a crime is aggravated by hatred is determined by the subjective impression of the purported victim. According to the Metropolitan Police: “A hate incident is any incident which the victim, or anyone else, thinks is based on someone’s prejudice towards them because of their race, religion, sexual orientation, disability or because they are transgender.”

In other words, if someone feels as though they have been the victim of a hate crime, regardless of the objective fact of the matter, it gets reported to the police as such. Enormous numbers of such cases are reported based on entirely subjective impressions – in many cases arising from things said online – and they end up being counted in police report records. Given this totally open-ended definition, no wonder it looks on paper like Britain is experiencing a hate crime epidemic.

Although motivated by a noble objective – the protection of the vulnerable –  the move to criminalise dispositions as opposed to actions represents an insidious departure from the traditions of English criminal law, a legal system that criminalises only actions for which objective empirical evidence, not personal emotional reaction, can be established.

There is a broader authoritarian atmosphere emerging here. There has been a deeply worrying rise in cases of offensive speech seeing individuals dragged through the courts. Mark Meechan, a Youtuber and comedian going by the screen name Count Dankula, posted a video in 2016 of his pug performing a Nazi salute on command. He was found guilty of grossly offensive speech contrary to the Communications Act and fined £800, eventually being jailed upon refusal to pay. He posted the video to annoy his girlfriend.

Graham Linehan – the creator of Father Ted – has found himself on the wrong end of the law after a row with a trans rights activists for so-called ‘Dead-naming’ – that is, referring to a transgender person by their old name. Should this really be a crime?

A final factor few seem to have spotted is the context of proposed changes to the Gender Recognition Act. If such changes go ahead then all external criteria (medical approval, having lived in a new gender for 2 years, and so on) for someone to qualify as legally ‘transgender’ will be removed. Instead, you will simply be able to declare that your gender identity at will – and demand that others respect and recognise this as a fact, to boot. Indeed, individuals would be free to change gender at will from one day to the next; one can imagine an inattentive office manager finding themselves under fire simply for failure to keep up. And the implications aren’t only for the criminal law either; companies are already introducing even more draconian speech protocols in-house, adding losing one’s job to the list of possible sanctions for Thoughtcrime.

Now put two and two together: if an action can be interpreted as a hate crime on the grounds of hostility to someone’s gender identity, and one’s gender identity can be determined as one sees fit – that is to say, it can be entirely in one’s head – then legal chaos could ensue. People could be prosecuted in effect for failure to read minds. Now an individual’s view of themselves and of an action – no matter how capricious, changeable, impossible to foresee or divorced from reality – stands to be enforced on others by the state. This is a shift towards the government regulation of all behaviour so that the sensitivities of very small minorities can be placated.

Some religious groups have welcomed these proposals, viewing the bolstering of anti-hate laws as a signal from government that it’s serious about protecting minority communities. They should be wary, however: it won’t be long before churches, mosques and synagogues find themselves on the wrong end of such laws, as will others with attitudes outside the socially liberal mainstream. To support a measure because it seems to benefit you right now is short-sighted; the tables can turn all too quickly.

We are privileged to live in a society that forbids harmful actions but does not in general subject feelings, ideas or internal dispositions, to the scrutiny of the law, and the impressions of a victim are not enough to change the nature of an action. The drive to incorporate our sensibilities and sensitivities into the criminal law may aim to be inclusive, but moves to regulate thought and speech in service of this end are nefarious, and must be resisted.