ADF International


Wolf whistling and the freedom of expression

Last month, Nottinghamshire Police proudly announced that they had become the first police force in the country to recognise misogyny as a ‘hate crime’. While the announcement generated a lot of interest, technically it didn’t amount to a change in the law but rather changed the way in which incidents are recorded.

Standing up for women’s safety is clearly a good thing. We should be striving to ensure that women feel safe on our streets, and the subsequent social media attacks against those who initiated the changes are completely unacceptable.

However, I am concerned to see an extension of the ‘hate crime’ regime which targets conduct – and speech – and which goes far beyond what is necessary to protect women.

For any lawyer, legal certainty is of the utmost importance. Laws must be clear. If they are not, they are open to misapplication, exploitation and injustice.

‘Hate crime’ in the UK is not straightforward. It is defined as a crime committed that the victim or any other person perceives to be motivated by hostility or prejudice towards a particular aspect of their identity. This can target, for example, criminal activity (such as assault) that is committed with an apparent bias towards a person’s race. Such a motivation may be clear, but is often heavily disputed – with “perception” acting as the trump card.

Hate crime in the UK is not straightforward

Ultimately the finding of a ‘hate’ element can make a significant difference in the sentence to be handed down. However, the ‘hate crime’ regime is much wider than that, with the most concerning aspect of it being ‘hate speech’. This is where the crime committed is unlawful speech against a person’s identity alone, which is classed as a ‘public order’ offence.

There are five ‘protected strands’ of identity actively monitored, namely: disability, race, religion, gender identity and sexual orientation. Police forces are allowed to include their own ‘strands’ of hate crime, which is what Nottinghamshire police did when it added misogyny to the list.

The new measures led to some sections of the UK media breaking the story with headlines stating that wolf whistling will become a ‘hate crime’. But the reality is that no one is exactly sure whether wolf whistling would be considered a misogynistic hate crime. There are questions about what misogyny, and ‘perceived misogyny’, means. There are even bigger questions about what sort of comments would be perceived to be offensive or threatening enough that they would be considered ‘hate crime’.

The police themselves seemed to be a bit unclear on what a hate crime amounts to. A spokesman for the Nottinghamshire police force said that “hate crime is simply any incident, which may or may not be deemed as a criminal offence.” However, Richie Jones, lead on hate crimes for the Police Federation of England and Wales, indicated all hate crimes to be serious offences, and needed to be dealt with appropriately.

While no-one wants to encourage people to hold offensive opinions, holding the opinion is not, in and of itself, unlawful. However, if you express that same opinion and another person is offended, it may become a criminal offence by virtue of ‘hate crime’ law.

Violence against a person based on prejudice is rightly illegal. But is it right that a person should be held criminally responsible when someone perceives their spoken opinion to be offensive? While the European Court of Human Rights has previously held that speech which is offensive, shocking or disturbing is protected, there is an ever increasing inclination to criminalize speech which is deemed ‘indecent’ or ‘grossly offensive’.

In Europe today there is an overwhelming trend to ensure that citizens are all tolerant, respectful and cordial with one another by looking to curb speech which is seen as hateful. While the end is admirable, the means in practice blurs the line between which opinions are simply rude and ignorant, and which opinions are considered to be ‘hate crime.’ As I’ve mentioned above, there are other categories which merit the protection of ‘hate crime’ law – none of which are abundantly clear, and some of which are distinctly unclear.

Of course it would be wonderful to live in a world where people aren’t offensive or even hateful to one another. But should we seek to achieve that by introducing vague crimes which stop people speaking from fear of prosecution? That is the ultimate effect of this kind of law – it is a chilling effect that will stop people from expressing their opinion, which is the closest you can get to outlawing someone from holding an opinion.

The most effective way to prevent offence being caused is to silence the potential offender. The problem with a society bent on preventing people offending each other is that it can lead to an environment where people no longer want to interact or engage with one another from fear of reprisal – most particularly on those controversial issues that most warrant debate and discussion.

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Faith-based legal advocacy organization that protects fundamental freedoms and promotes the inherent dignity of all people.