Sunday, 14 March 2021

My comments on the UK’s Law Commission consultation document on hate crime.


The Law Commission is a body composed mainly of lawyers which recommends changes in the law to the UK government. At least that’s my very brief description. Clearly for a more authoritative description you need to look at the LC’s web site.

The comments I submitted to the LC on their consultation document on hate crime are below.



1. The LC’s refusal to examine the basic rationale of the hate crime concept is the equivalent of the Navy having a review of aircraft carriers without re-examining the basic rationale of aircraft carriers.

Para 3.14 says, “It is also important to emphasise that our terms of reference for this review do not ask us to question the notion of more severe punishment for hate crimes or determine if it is principled. We simply intend to outline some of the main arguments that have been offered to justify more severe punishment in this context.”

So the terms of reference, which were decided by the Law Commission (LC) itself in consultation with the Department for Digital, Culture, Media & Sport, prevent the LC from examining the basic rational for the hate crime concept. That is the equivalent of the Navy having a major investigation into aircraft carriers without considering the basic rationale for aircraft carriers, which is clearly absurd.

“All silencing of discussion is an assumption of infallibility” – John Stewart Mill.

Moreover, the excuse given in the consultation paper for that omission, namely that there was not much call for the above basic rationale to be reconsidered in soundings prior to publication of the consultation paper is a poor argument. The lack of desire to question an idea certainly shows that the idea is part of the conventional wisdom. However the claim that because an idea is part of the conventional wisdom, that therefore the idea is probably valid has been shown to be flawed over and over throughout history. The idea that the Earth is flat used to be part of the conventional wisdom.

And finally, the above refusal to set out the justification for the basic hate crime concept is wholly inconsistent with para 3.10, which says, quite rightly, that “It is widely accepted that any punishment of wrongdoers by the state must be justified.”

2. The possible reasons for the rationale for the hate crime concept given by the LC are poor.

Despite the above claim that the basic rationale for the hate crime concept should not be re-examined, the LC does in fact devote considerable space to setting out what some of the basic justifications for the concept might be in Chapter 3. Ironically that exercise actually underlines the need for a reconsideration because the quality of reasons proffered for the hate crime concept are poor.

For example the first possible justification for the basic hate crime concept given in Ch3 is Barbara Perry’s. Her definition of hate crime includes the idea that it’s all about “subordination” of minority groups.  In addition to the flaw highlighted by Chakraborti and Garland (two critics of Perry’s cited in Ch3), Perry’s definition implies that threatening or abusive behaviour by for example non-Muslims in the UK towards Muslims (who are a minority) may constitute a hate crime, whereas the same behaviour by Muslim towards a non-Muslim would not constitute a hate crime because Muslims are a minority.

To illustrate, suppose someone hits a Muslim on the head while saying “All Muslims are idiots”. That might well be classed as a hate crime.  But if a Muslim hits a non-Muslim on the head and says “All Infidels are idiots”, that is NOT A HATE CRIME, according to Perry logic because Muslims are a minority. I conclude that Perry logic does not make sense.

3. Hatred as such is so inconsequential that the law should not bother with it.
Para 3.11 is flawed. It reads as follows.

Four key arguments have been associated with punishing hate crimes more severely than differently motivated crimes:

(1) Hate crime causes additional harm, namely to primary victims, but also to groups who share the targeted characteristic and to society more widely.
(2) Hate crime constitutes greater intrinsic wrongdoing.
(3) Hate crime offenders are more culpable than those who commit equivalent offences which are not hate crimes.
(4) More severe punishment sends out a message, denouncing the hatred as wrong.

Items 2 and 3 NECESSARILY follow from 1 and are thus superfluous.

Re item 4, it is extremely debatable as to whether hatred of some religions because of some of their unsavoury aspects is necessarily wrong. To hate Islam because of  female genital mutilation, beheadings, desecration of Buddhist and Christian statues, wife beating, suicide bombs, other terrorist attacks, Halal animal cruelty, mistreatment of apostates and forcing women to wear Burkhas (as in Iran), imprisonment of blasphemers (i.e. those who deny the existence of God) is ENTIRELY UNDERSTANDABLE and is not necessarily “wrong”.

As distinct from the latter hate, actual violence towards a racial or religious group is a different matter of course: the law should definitely intervene where violence takes place.

4. The extent of emotional distress caused by criticising a religion is not a reason to ban such criticism.

Paras 3.16 to 3.20.

Paras 3.16 to 3.20 try to advance the argument that the hate crime concept is justified because some groups, e.g. religious groups, suffer more of an emotional reaction to hate crime than other groups.

The fact that some groups suffer more of an emotional reaction is not necessarily the fault of the perpetrator of the alleged hate crime. For example Christians and Christian priests have not raised strong objections to cartoons which poke fun at Christianity for decades now. In contrast, Muslims are famous for exhibiting EXTREME emotional and violent reactions to cartoons which poke fun at Islam. That is not the fault of anyone who composes or publishes those cartoons, particularly in Western countries, where the right to poke fun at religion is now well established.

Moreover, it is the height of arrogance and cheek to migrate to another country and then object to part of its culture, e.g. a long established tradition of poking fun at religion. That form of cheek clearly often causes an “emotional” reaction and the occasional resort to “violence” by members of the indigenous community.

If it is wrong for members of an indigenous or native community to cause “emotional” or “violent” reactions among members of an immigrant religious community, then an equal amount of wrong or harm is perpetrated when the cause/effect relationship runs the other way.

In fact as already intimated just above, it is arguable that members of an immigrant community have LESS RIGHT to cause emotional or violent reactions among indigenous people than where cause and effect run the other way, and for the simple reason that it is a widely held principle accepted pretty much World-wide that there is an obligation on immigrants to abide by the laws and customs of the country they migrate to. After all, immigrants first or second generation are always free to leave the country they have migrated to and return to a country immersed in the culture they claim to be superior to that of the country they have recently arrived in.

As for the actual REASON why first or second generation immigrants are not prosecuted for causing “emotional” or “violent” reactions among indigenous populations, that’s plain as a pike-staff to anyone with any political insight: the latter sort of prosecution does not “fit the narrative” put by the political left and the politically correct.  

5. The views of just one person are not statistically significant.

Para 3.24 cites the views of just ONE PERSON (a Muslim). One is not a statistically significant number.

6. The frequent use of the word “might”.

3.96   (Concluding paragraph of Ch 3). This claims that “we have outlined the main rationales for hate crime and hate speech laws…”.

Well that rather conflicts with the above mentioned claim by the LC that they do not intend setting out the basic rational for the hate crime concept.

Next, far from having “outlined the main rationales for hate crime…”, Chapter 3 is actually little more than conjecture: witness the fact that the chapter contains the word “might” about twenty times (in the main text, never mind the voluminous footnotes). In other words there is nothing that resembles a clear, unambiguous argument leading to an indisputable conclusion or anything near an indisputable conclusion to the effect that the basic hate crime concept is valid.  Instead, all readers are given is a large number of POSSIBILITIES, as is implied by the frequent use of the word “might”.

7. Stirring up hate.

18.197 This reads, “We provisionally propose that where intent to stir up hatred cannot be proven, it should be necessary for the prosecution to prove that:
(1) the defendant’s words or behaviour were threatening or abusive;
(2) the defendant’s words or behaviour were likely to stir up hatred;
(3) the defendant knew or ought to have known that their words or behaviour were threatening or abusive; and
(4) the defendant knew or ought to have known that their words or behaviour were likely to stir up hatred.


First, it is not clear whether the prosecution would need to prove all four of those misdemeanours, or just one.

Second to prosecute someone simply because their words are “likely to stir up hate” (as in sections 2 and 4 just above)  is absurd and for the simple reason that some people (as mentioned above) are so sensitive to any slight that absolutely any disagreement with them may “stir up hate”. For example the simple claim that there is no God, widely accepted as a perfectly reasonable statement in most countries, is likely to “stir up hate” among the religious, particularly Muslims.

Also the word “threatening” is also far too vague. For example someone might “threaten” to organise a demonstration against the Labour or Tory Party. Is that “threat” wrong? Clearly not. In other words if the LC intends the word threaten to refer for example to “threaten to engage in physical violence” then the LC should say so.

8. The length of the LC consultation document.

Finally, the LC consultation document is EXTREMELY LONG: around 150,000 words according to my back of the envelope calculations. Like about 99.99% of the UK population I have not had time to look at more than a very small proportion of this document. But what I have looked at appears to riddled with flaws and false logic. It would not be unreasonable to conclude that the ENTIRE document is about equally badly flawed.  

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