MacWhirter's legal bunkum on sectarianism...

I'm afraid to say it, but Iain MacWhirter's column in the Herald this week is embarrassingly ill-informed. He takes up the issue of sectarianism and the SNP's still vague plans to criminalise "peddling bigotry online", about which I have expressed my qualms before on a number of grounds, principled and practical. We clearly disagree on that. However, what concerns me is that MacWhirter's position is underpinned by a number of unhappy legal inexactitudes. He writes...

"Last year a blogger, Mohammed Sandia, was successfully prosecuted for posting antisemitic comments on the internet, so it is not true that the net is beyond the law. Indeed, many of the same newspapers who only last week were lamenting the futility of superinjunctions, have this week been calling for a clampdown on other forms of lawbreaking on the web. Does this mean that internet service providers and hosting companies, as well as individual websites are going to have to behave as responsibly as TV, newspapers and magazines?  If I gave vent to sectarian hate crime in this column, the editor would go to jail for publishing it and so would I. There is no reason why this should not apply to an internet publication. Facebook, YouTube and Twitter operate within a jurisdiction, and are therefore subject to the law of the land, otherwise it could be prevented from operating here. The problem here isn’t one of law, but of enforcement."

If you look into the case of Mohammed Sandia, however, you'll discover that the individual in question was prosecuted under the provisions of the Public Order Act 1986. More specifically, Sandia pleaded guilty to publishing written material which was threatening abusive or insulting "whereby having regard for all the circumstances racial hatred was likely to be stirred up."  Critically, "racial hatred" as defined in the Act is "hatred against a group of persons" defined "by reference to colour, race, nationality (including citizenship) or ethnic or national origins" (§17). Its applicability in the Sandia case relies on the classification of Jews in racial, national or ethnic terms - rather than their religious beliefs as MacWhirter implies in this piece. As a result, while this section of the 1986 Act does seem likely to apply to stirring up hateful anti-Irish feeling, its applicability to particular religious sects in the Christian tradition is highly dubious, requiring an unholy interpretative stretch. 

So why does MacWhirter think he would go to jail for "sectarian hate crime"? What offence does he have in mind and where is it to be found? He furnishes no clear answers on this score, but I fancy MacWhirter is referring to the highly controversial and debated provisions of the Racial and Religious Hatred Act 2006. Passed by Tony Blair's Labour Government in Westminster, the Act amended the 1986 to criminalise "stirring up hatred on religious grounds", defined as "hatred against a group of persons defined by reference to religious belief or lack of religious belief". MacWhirter clearly hasn't troubled himself to read §3 of the 2006 Act, however, which goes under the admittedly drab-sounding title of "Short title, commencement and extent". If he had consulted this clause of the legislation, he'd see that the new offence of incitement to religious hatred only applies in England and Wales, and does not extend to Scotland.  He boldly declaims "people may disagree with such controls, but it is the law, and the law is there to be enforced." As we have seen elsewhere this week, invocations of the law of the land is generally suspect in a legally pluralistic state such as the United Kingdom. I know of no statute passed by Holyrood - at least thus far - explicitly mirroring the "religious hatred" provisions of the 2006 Act.

So "stirring up religious hatred" isn't an offence known to Scots law. Perhaps MacWhirter has in mind some creative application of the common law? Or perhaps § 38 of the Scottish Parliament's Criminal Justice and Licensing Act 2010, which criminalises "threatening of abusive behaviour", and could be taken to include writing online, applying as it does to "any behaviour of any kind including, in particular, things said or otherwise communicated". In Scotland, one could make the argument that some forms of writing or performances, posted online, constitute a breach of the peace aggravated by religious prejudice. A University of Stirling student was arrested and charged earlier this year for posting pictures on himself on Facebook, wearing a Postman Pat costume, and carrying a parcel addressed to Celtic manager Neil Lennon. For my part, although I have only seen part of the image, with much of the parcel text redacted, I struggle to understand the religious prejudice immediately disclosed by the photograph, never mind that it constitutes both “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” - the legal definition of breach.

Moreover, in the discussion surrounding the new legislation, Scottish Government figures have suggested that they are increasing sentencing powers from six months to five years for "sectarian hate crimes". Frankly, I'm a bit bamboozled about what the media are referring to. While statutory offences generally prescribe a maximum penalty, sentencing powers are also determined by the judicial forum in which an offence is prosecuted, Justice of the Peace court, summary Sheriff Court - and so on. While some offences are triable only summarily (i.e. without a jury) or must be tried solemnly (with a jury), a great many offences can be prosecuted in either manner. While religious and racial motivations - amongst others - can be added as aggravations to other offences, I can't for the life of me uncover what Scottish offence criminalises "sectarian hate" - not a legal phrase, I'll be bound to say - attracting only a six-month custodial penalty at the highest. All insights appreciated, if anyone else has been able to come to a clearer idea than I about what the devil they're talking about. At least infosar as MacWhirter's article goes, however, it seems much more likely to me that MacWhirter thinks the 2006 Act applies in Scotland, rather than lending his mind to the flexibility of Scotland's criminal laws and the open-endedness of our recently-passed penal statutes.

Practically, one should add, the English offence of stirring up religious hatred, despite not applying in Scotland, can have significant impact on writers and publishers north of the Tweed.   For example, as we have seen with the Sunday Herald's sally into the "superinjunction" controversy by naming the footballer in question on its front page, precautions are necessary if papers are to avoid being taken by English courts to have "published" the material in England. While emblazoned starkly on their front pages, the Herald conspicuously avoided putting the man's face online or references to his name on the web, limiting the "publication" to their print circulation. In a similar mode, if MacWhirter was desperately keen to pen a column actively inciting religious hatred - barring intervention by Scottish authorities on the basis of rather vague common law crimes - if the piece only appeared in the Herald's print edition, I see no legal reason (but am happy to be corrected, if there's something I've overlooked) why he or his editor need fear being slammed up with their chamberpots by English or Scottish courts.

It isn't the law, and what isn't law isn't there to be enforced.