PLEASE NOTE THE FOLLOWING IS NOT MY OPINION, OR PERSONAL BELIEFS UNLESS STATED OTHERWISE. THIS ARTICLE IS AN ATTEMPT TO EXPLAIN THE LEGAL PROCESS, THE LAWS USED AND FACTS IN DEALING WITH THE 2024 RIOTS. UNDERSTANDING HOW HATE CRIMES ARE CLASSIFIED AND WHAT IS CULPABILITY. IT IS INTENDED AS GUIDANCE AND NOT LEGAL ADVICE; AS CRIMINALITY IS DECIDED ON THE MERITS OF EACH CASE.
Following on, from my previous article explaining the laws and legal process of those individuals prosecuted, for violent disorder for their part in the recent riots, we can now move on to the more complicated process, of those individuals charged with inciting violence and stirring up racial hatred, through online media. There is a consensus of belief, that the current social media prosecutions, are an attack on our freedom of speech. With many quoting Article 10 of the ECHR, believing that gives them carte blanche to say what they please, without state intervention. Firstly let’s examine the ECHR framework, then in particular Article 10.
Within the framework of the ECHR, convention rights are classified as absolute, qualified and limited. Which I discuss individually below:
Absolute rights: exactly as it sounds, they are guaranteed rights and cannot be restricted in any way. With 1 exception, Article 1 the right to life. This can be limited. but only under exceptional circumstances such as: the state using force against another, to protect individuals from unlawful violence.
Qualified Rights: are those rights requiring a balance between the rights of the individual and the needs of another, or of the wider community. Therefore qualified rights can be can be interfered with, but the state have to provide a legitimate aim, such as:
protection of other people’s rights
national security
public safety
prevention of crime
protection of health
Furthermore, any interference cannot exceed what is absolutely necessary, to achieve any of the criteria above and if unlawfully applied can be brought before the courts under judicial review.
Limited Rights: may be restricted only in explicit and finite circumstances, for example when someone commits a crime.
Article 10 of the ECHR surprise, surprise, is a qualified right, which means the state can interfere with this right, for the reasons stated above. But, it has to be lawful and proportionate. So, an example of this could be; you post your opinion in belief of your Article 10 rights, but your comments go too far, this has now crossed a legal threshold, as your opinion could incite others to promote hate or violence. This in reality would be viewed by a reasonable person, as crossing a criminal threshold and justifies state intervention.
Taking into account the evidence against the individuals that have posted on social media, under the CPS guidelines, these comments have crossed that threshold. Using threaten abusive or insulting language, to incite hatred or violence online is breaking the law. Furthermore anyone involved with forwarding messages, that are categorised as malicious communication or crossing a legal threshold to incite hatred and violence, are equally complicit and the reason these individuals have been arrested, prosecuted and sentenced accordingly.
I have heard a number of content creators, calling these prosecutions harsh, unfair, trivial, discriminatory and even a miscarriage of justice. Some have also tried to explain their comments using the excuse ‘ I didn’t know it was against the law’, whilst others have tried to play down comments based on race or sex. Unfortunately in English law there is no defence for ignorance, regardless of race, age or sex etc.
There has also been a call for leniency, but you have to take context into account, these comments were used to incite racial hatred and violence. Regardless if that was not the intention, it must be made clear, that these comments were being made during a period of civil disorder. Had these comments been made at any other time, there is a strong possibility they would have been ignored. Further highlighting the importance of my comment surrounding culpability and context.
However, that being said, it is not an offence to have strong or differing political views. In fact in any society promoting free speech, this should be welcomed. The opportunity to engage in debate, expressing differing views, promoting a lively debate and an exchange of ideas. Nevertheless, it is an offence to incite hatred or violence, be it in person or online. For a complete understanding of the threshold where opinion becomes hate, read S4 Public Order Act 1986.
Additionally, the CPS have produced a document found at: https://www.cps.gov.uk/sites/default/files/documents/publications/Hate-Crime-what-it-is-and-how-to-support-victims-and-witnesses.pdf, that explains what a hate crime is and how to avoid posting unambiguous content. Although, in my personal opinion, this document does not provide clear and concise advice for the average lay person, on what is or isn’t acceptable language. But could possibly be grounds for a defence, when disputing the mens rea or intent of your content.
Taking all of the above into consideration, Article 10 of ECHR is not an absolute right and it never has been. Absolute freedom of speech in the U.K. is a public misconception. The state, like it or not, have the right to interfere with this convention right, when there is a justifiable reason. Criminality, strangely enough is a justifiable reason. Whether you agree or not with this, it’s the law and as a civil society should we not abide by our laws?
Additional examples of people’s misconception of their Article 10 rights, has resulted in a number of content creators, especially those on YouTube, having added a disclaimer to the start of their videos stating: their content contains personal opinion in line with said convention right, with a brief description of it. Stating, ‘protects your right to hold opinions expressing them freely without state interference’.
Legally, these disclaimers are worthless, again by not understanding that Article 10 is a qualified right. If these individuals have listed these disclaimers from legal advice, then that advice is extremely bad. They can still be prosecuted, if their content crosses the threshold between strong political opinions, and threatening, abusive and insulting language aimed at promoting hate or inciting violence.
I sincerely hope this publication, has given you some insight into the legal process and how the courts apply the law, especially that surrounding criminal proceedings. Criminal law is not as straightforward as it first appears, there are many shades of grey. Because of the recent violence, content that has been ignored in the past, has come under extreme scrutiny and will continue to do so. My advice would be before you post content sit back for 10 minutes, proof your posts and review your video, literally think before you post.
Following on from this article I will go into greater detail of hate crimes, a breakdown in the operation of the judiciary and the suspicion of a 2 tier government, judiciary and police force.