Viewers want to see The Promise... in court

By Jonathan Goldberg, March 14, 2011

Elaine from Bournemouth writes: I am incandescent with anger after watching The Promise on Channel 4 with my father. My father fought in the British Army during World War Two. Later he was a volunteer in Israel's War of Independence. He witnessed at first-hand some of the events depicted in this series. He confirms what I think should already be obvious to any viewer with a knowledge of history, that this series is a piece of black propaganda designed to attack Israel, while its maker, Peter Kosminsky, takes every opportunity to masquerade in the press as being even-handed. My father is an old man, but he sees elements of this series (and particularly the Jewish caricatures depicted) as antisemitic and likely to provoke hatred of Jews as a whole, not just of Israel as a state. He now intends to protest by refusing to pay his television licence fee next year, but is there no way this programme or its makers can be prosecuted under the laws which exist to prevent racial and religious hatred?

Elaine, I agree with your father. I have received many similar emails about this drama series. It seems to me that Peter Kosminsky is typical of the dangerous and unlikely enemy from within whom Jews and Israelis face nowadays. When it suits him, he proclaims himself to be "racially Jewish", with a grandfather who fled from antisemitism in Poland (I quote him). Yet he never sought any Jewish identification before, or even visited Israel until he came to make this film when he was already in his fifties. He claims a primary motive was to show that "We [the British] were responsible for delivering a just resolution, and we completely failed to do so…and we should take some responsibility for it."

I venture to suggest that a clearer glimpse of Mr. Kosminsky's true psychology emerges from the final diary entry written by the drama's hero, Len, the British army sergeant: "So now the Jews have their precious state. Good luck to them. But this is a state born in violence, in cruelty to its neighbours. I can't see how it can hope to prosper."

However Elaine, I think absolutely nothing will be achieved by your father refusing to pay his TV licence. This is a futile gesture. He will end up in the magistrates court prosecuted and fined, and his good motives are unlikely to attract the least press attention.

Neither will there be any criminal prosecution of the makers. It is true there now exists a wide body of statute law in the UK criminalising attacks motivated by racial or religious hatred. This is mainly to be found in the Public Order Act of 1986 and the Racial and Religious Hatred Act of 2006. Whether by means of physical force and violence, or merely by the use of words, such attacks can theoretically attract up to seven years prison.

Any private prosecution by an aggrieved citizen is ruled out

However, these cases always receive careful advance scrutiny by the Crown Prosecution Service, who have a wide discretion whether to charge or not. The majority of such prosecutions also require the consent of the Attorney-General. That rules out any possibility of a private prosecution by an aggrieved citizen such as your father.

There is always a tension between such prosecutions and the right to publish or broadcast dissenting opinions which is sacred in a democracy and is protected especially by Article 10 (Freedom of Expression) of the European Convention on Human Rights. Save in extreme cases the latter will almost always prevail, especially where an artistic work is involved.

The Promise and its makers are guilty of no crime in UK law in my opinion, unless it could be proved beyond reasonable doubt, not only that the broadcasts were threatening to Jews, but also that the makers intended to stir up racial or religious hatred. That is simply an impossible mountain to climb.

We hear much talk nowadays of so-called "lawfare", whereby legal actions are brought with little or no prospect of success but merely in the hope of generating publicity for a cause. I am strongly against it here. However great the provocation, such artistic works can only be fought in the courtroom of public opinion by using the weapons of conventional criticism and debate. To attempt and then to lose a prosecution, perhaps with a hefty costs bill, would only worsen the position.

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

Last updated: 11:08am, April 27 2011