07 January 2021
Hate Crimes (Revisited)[i]
To be extended – really?
By Lynda Goetz
A small item of news caught my eye at the weekend. “Fired Asda worker was ‘not racist but querying purchase’ “, ran the headline. It appeared that Samantha Doherty was fired from her job as a checkout worker at Asda after commenting to an Asian customer ‘We see it all the time with people like you’. The customer, who had been making large non-essential purchases during lockdown, made a complaint, as she felt the comment referred to the fact she was Asian. When Ms Doherty took Asda to a tribunal for unfair dismissal, the tribunal upheld her employer’s decision with the pronouncement that ‘what mattered were the words actually used’ and how the customer understood them (my italics).
For the word customer, one could presumably substitute ‘victim’, for although this incident was not billed as a hate incident, this was essentially the root of the reason for the dismissal and it is this aspect of hate crime (and associated hate incidents) which makes it unique as a form of criminal behaviour. The CPS site states, “The term ‘hate crime’ can be used to describe a range of criminal behaviour where the perpetrator is motivated by hostility or demonstrates hostility towards the victim’s disability, race, religion, sexual orientation or transgender identity’. In fact, neither motivation or intention are needed, as evidenced by the exact wording of the offence given on the Metropolitan Police website, which states: A hate crime is defined as ‘Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice based on a person’s race or perceived race; religion or perceived religion; sexual orientation or perceived sexual orientation; disability or perceived disability and any crime motivated by hostility or prejudice against a person who is transgender or perceived to be transgender. 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.
Not all hate incidents will amount to criminal offences, but it is equally important that these are reported and recorded by the police.’ (Again, my italics). Really, why? Have they not got enough to do without this added burden?
Many years ago when I was in my thirties and returning home to Clapham from a visit to the Royal Opera House on a crowded Tube (yes, yes, I know, but one had to save money somewhere and in any case most black cab drivers lived in North or East London and did not like making late night runs ‘south of the river’) I was startled to find myself being rudely and aggressively addressed by a woman of about my own age. She wanted to know ‘what my problem was and why I was f….g staring at her like that’. I didn’t have a problem and as far as I was aware I had not been staring at her, merely looking vacantly in her direction running scenes and music from our evening through my mind. She clearly perceived things differently, whether due to her race, religion, gender, tendency to be offended or quite possibly her state of inebriation. Fortunately in those days there were no such things as hate incidents and my husband and I simply moved at the earliest opportunity to another carriage.
How would or could such a scene play out today? Possibly not very differently, because of the difficulty of identification, but what if something similar happens in a workplace? Is the perception of the victim to a perceived slight really all that it takes? Seemingly so, in some cases. In a letter to The Telegraph, a reader described an occasion when a young female doctor friend of his entered a staff room full of female colleagues with the words, “Good morning, ladies. Can I get anyone a cup of tea?” For this kind and seemingly innocuous offer she was reported to human resources for hate and given an official warning. Apparently one of those in the room objected to being called a lady. How on earth have we got to this point and given the latest developments in this field, why are we considering continuing beyond this point?
On 23rd September last year, whilst the Government appeared to be focusing all its energies and those of its citizens on avoiding coronavirus deaths, the Law Commission started a new consultation on extending hate crime (there had already been one in 2013). The consultation documents can be viewed on the Law Commission website, although it is now too late to contribute as the deadline for responses was Christmas Eve. The papers make for quite interesting reading for those who are still puzzled as to how we got here and I will not even attempt to paraphrase them. It seems unlikely in our current ‘woke’ era that we can turn the clock back with regard to these subjective laws, but the suggestion that they should be extended to include further ‘protected characteristics’ (including women, ‘alternative subcultures’ such as punks and goths, and even age) seems contrary to the principles of freedom of speech and expression, in which we claim to believe.
On the same date as the Law commission was launching its consultation, Scotland announced that it would amend its own Hate Crime and Public Order (Scotland) Bill after criticism from a number of quarters. The Scottish Police Federation warned that the proposals would force officers to “police what people think or feel” which, it says, would “devastate the legitimacy of the police in the eyes of the public”. General secretary, Calum Steele, said: “Police officers are all too aware that there are individuals in society who believe that to feel insulted or offended is a police matter… We do not for one second suggest that prejudice, racism or discrimination are desirable qualities in our society but the need to address those matters when they reach a criminal level is met by laws already in place and the cost to free speech of going further with this bill is too high a price to pay for very little gain.” This follows a submission from the Law Society of Scotland that voiced “significant reservations” about a “lack of clarity” in the legislation. It expressed fears that the bill “presents a significant threat to freedom of expression, with the potential for what may be abusive or insulting to become criminalised”.
Rowan Atkinson, who spearheaded the Reform Section 5 Campaign seven years ago to remove the word ‘insulting’ from Section 5 of the Public Order Act, has more recently spoken out again about the importance of free speech and the cancel culture prevailing on Twitter and other social media sites, which he likened to a ‘medieval mob looking for someone to burn’. In a widely reported interview with the Radio Times, he expressed his concern about the way individual opinion was not tolerated and online witch hunts ensued. His speech for the section 5 campaign makes reference to a sketch from Not the Nine O’Clock News in which Griff Rees-Jones played Constable Savage, a clearly racist police constable who had arrested a Mr Winston Kodogo on a series of ludicrous, trumped up charges which included ‘Looking at me in a funny way’. “Who would have thought” said Mr Atkinson, “that we would end up with a law that would allow life to imitate art so exactly?” Who would? But then who would have imagined a year ago that we’d accept a government passing legislation preventing us from seeing close relatives ‘for their safety’ and paying furlough for people to stay at home to avoid a virus so deadly most need a test to find out if they’ve got it?
Best be careful what I say, though – mine is not the majority view. At least I am not well known enough to be cancelled, and I don’t think there was any suggestion for ‘protected characteristics’ to be extended to include politicians, but these days you just never know…
[i] ‘Well I never heard it before, but it sounds uncommon nonsense’, ‘Whiter than White’, Fountain of Youth
