When is a hate crime not a hate crime?

By Jonathan Goldberg, March 14, 2013

Emma, a 15-year-old from Harrow, writes: My grandfather is 89 and thankfully he remains in almost perfect control of his memory.

As a teenager he fled from the Nazis, and he talks to me a lot about those terrible times. He is very worried about the way things are going in this country, and especially the anti-Jewish remarks of the Liberal Democrat MP David Ward, and the horrible Gerald Scarfe cartoon published on Holocaust Memorial Day. He says it reminds him of his boyhood experiences in Cologne, and that nobody would dare to treat the Muslims like this because the law would never allow such hate crimes against them.

Is he right about the law, and if so, why are the Jews not standing up for themselves in the same way?

Emma, your grandpa has voiced a concern that many of us nowadays feel, and many people write to me about, but sadly it is just not that simple to remedy. People seem to imagine that every time Jews or Israel are criticised or insulted, it is punishable as a “hate crime”. That is not so.

Nor does it make a difference that these statements have tended to become ever more fashionable, acceptable, unfair and biased in recent times.

'David Ward’s remarks were well within his right to freedom of expression'

The starting point is Article 10 of the European Convention on Human Rights. This reads: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

The right is now enshrined in English law, and is considered one of the essential foundations of a democratic society, and it protects those opinions with which we as Jews agree, but also those with which we most violently disagree.

The expression “hate crime” is itself much overworked and misunderstood. It means that an existing crime is aggravated, and will be sentenced more harshly than otherwise, where it was “motivated by hostility towards the victim because of the victim’s ethnic or national origin or religious beliefs”. But it is no crime in itself to hate or criticise Jews or Israel, or indeed Muslims. The range of actual crimes for which a person can be prosecuted for what we all too loosely call “hate crimes” is in fact quite limited.

They include glorification of terrorism, which is obviously rare, and sending grossly offensive messages on social media (for example on Twitter). To be prosecuted in the real world however, the CPS will require the offensiveness to go way beyond the kind of messages which David Ward MP put out on Twitter, saying that Jews had not learned the lessons of the Holocaust. We may not like it of course, but that is an expression of opinion well within his right to freedom of expression. It is clearly distinguishable from saying, for example: “All Jews are evil and should be extirpated”, which one would certainly expect to be prosecuted.

Similarly, the Scarfe cartoon which depicted Bibi Netanyahu crushing Palestinian heads dripping with blood while building a wall above them, was grossly insulting and provocative and no doubt unfair, but not, I think, beyond his right to make political mockery of the Israeli Prime Minister.

The other body of law which creates crimes which might in theory be used to prosecute “hate crimes” is the Public Order Act 1986. Essentially, it prohibits using threatening, abusive or insulting words or behaviour, intending to cause another person harassment, alarm or distress. In general the offence can only be committed in a public place. So if someone shouts at me: “You dirty Jew, go back to Israel” on a bus (as someone once did), I would expect him to be prosecuted. If he says it to me in the Garrick Club (and no one has so far), I would not.

What this all amounts to, Emma, is that we Jews must learn to have thicker skins. Prosecution is rarely going to happen, and certainly not where the conduct complained of is clothed as criticism or opinion rather than insult.

We need to work on our political skills, our powers of persuasion and debate, and ask our friends (of whom we still have many, especially in the Christian community) to help us overcome the current wave of prejudice. This idea circulating within our community of prosecuting for “hate crimes” is largely a misconception of law, and it is time we face that fact.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.GoldbergQC.com

Last updated: 2:17pm, March 14 2013