Voluntarily and there seems no reason why these should be especially

privileged over, for example political beliefs. However, in return for a

smooth passage for other provisions in the bill, this extension was

severely curtailed (below p. 474).

Sedition

This consists of publishing material, for example speeches, leaflets,

books or electronic messages, with one or more of the following inten-

tions (see R. v. Burns (1886); R. v. Aldred (1909); R. v. Caunt (1947)):

. to bring into hatred or contempt the monarch or the government;

. to excite subjects to attempt to alter the established order by

unlawful means;

. to raise discontent or disaffection among Her Majesty’s subjects;

. to promote ill-will or hostility between different classes of Her

Majesty’s subjects.

During the eighteenth century seditious libel was used as a tool of state

control in that the judges had a wide power to decide what was sedi-

tious. Under Fox’s Libel Act (1772) this was made a matter for the

jury, thus providing a safeguard for the individual in that judges

cannot direct a jury to convict and juries do not have to give reasons

for their decisions.

The accused must intend to incite violence or disorder but this need

not it seems be immediate. In R. v. Chief Metropolitan Stipendiary

Magistrate ex parte Choudhury (1991) it was held that sedition applies

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only to incitement against the state and not to attacks on religious

groups. Moreover ‘the limits of permissible criticism are wider with

regard to the government than in relation to a private citizen or even a

politician’ (Castels v. Spain (1992) para. 46) and there may be no mar-

gin of appreciation in such cases. Therefore, if prosecution is limited to

cases of serious disorder it is unlikely that a proportionate response

would fall foul of the Human Rights Act 1998. On the other hand,

given the availability of other public order powers, sedition may be

regarded as unnecessarily draconian (cf. above p. 424).

Racism

Racism has been so widely condemned throughout Europe as to

amount to a special case. Freedom from discrimination as such is not

protected under the convention which expressly prohibits discrimina-

tion only in respect of the other protected rights (Art. 14). However, the

International Convention on the Elimination of All Forms of Racial

Discrimination (1965) (CERD) has been ratified by most members of

the Council of Europe (not Ireland, Lithuania or Turkey). Article 4

of the convention requires signatories to create offences in relation to

‘all dissemination of ideas based on racial supremacy or hatred, incite-

ment to racial discrimination, as well as acts of violence or incitement

to such acts against any race or group of persons of another colour or

ethnic origin’. Article 4 also requires states to have ‘due regard’ to

(inter alia) the right to freedom of opinion and expression.

Racist speech is not entirely outside the protection of Art. 10 but has

a low level of protection, usually being outweighed by the need to

protect the rights of others and to prevent disorder (but see Farrakhan v.

Secretary of State for the Home Department (2001): right to hear even

extreme opinions). In Jersild v. Denmark (above) the objective reporting

by the media of racist abuse was held to be protected by Art. 10. The

reason for this is the role of the media as a watchdog against obnoxious

elements in society. This reflects the ’search for truth’ rationale of

freedom of expression. In Jersild the court expressed the view that

deliberate racist abuse would not be protected and that racism is a sub-

stantial threat to democracy. Measures to combat racism are reinforced

by Art. 17 which aims at preventing reliance on a convention right in

order to undermine another. It is unlikely therefore that UK law con-

travenes the ECHR. The main anti-racism offences are as follows.

. Incitement to racial hatred. Sections 18 to 23 of the Public Order Act

1986 extend earlier provisions. The gist of the main offence is the use

of ‘threatening, abusive or insulting words or behaviour either with

474 General Principles of Constitutional and Administrative Law

intention to stir up hatred in circumstances in which such hatred

is likely to be stirred up’. Race includes colour, race, nationality,

ethnic or national origins (s. 17). An ethnic group can be defined by

cultural as well as physical characteristics (see Mandla v. Dowell-Lee

(1983) – Sikhs; Commission for Racial Equality v. Dutton (1989) –

gypsies but not other travellers). The offence applies to the display of

written material including pictures (s. 29), but not to broadcasting,

for which there are separate provisions (s. 18 (6)). The racial group

need not be present at the time, although there must be at least

one person among the audience or readership likely to be stirred to

racial hatred.

Incitement to racial hatred can be committed in public or private

places except exclusively within a dwelling. Thus the offence applies

even to activities within a private club or other association. Public

disorder is not relevant; for example the offence could apply to an

academic paper read to an audience in a university with which the

whole audience agrees. The accused is not guilty if he did not intend

to stir up racial hatred and if he was unaware that his words or

actions might be threatening, abusive or insulting (s. 18 (5), s. 18 (2)).

. Similar provisions apply to a public performance of a play (s. 20), to

distributing, showing or playing recordings, and to broadcasting or

cable services, except from the BBC and ITC (s. 22 (7), s. 23 (4)).

Broadcasts by the BBC and ITC are governed by their own internal

systems of regulation and the Home Secretary has power to ban

any broadcast (see Brind v. Secretary of State for the Home Depart-

ment (1991)).

. It is an offence to possess racially inflammatory material (s. 23), and

the police have wide powers of entry and search (s. 26).

. Under the Crime and Disorder Act 1998 ss. 28, 31, the penalties for

the offences of ‘fear or provocation of violence’ and ‘harassment

alarm and distress’ under the Public Order Act 1986 (below) are

increased where there is a racial motivation. The Anti-Terrorism,

Crime and Security Act 2001 s. 39 extends this to case of religious

motivation.

19.4 Public Order: Demonstrations and Meetings

Public demonstrations and meetings are an important expression of

democracy. However, there are many statutory restrictions imposed

for the purpose of public order and the police have wide discretionary

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powers. The law has developed as a series of pragmatic responses to

particular problems and political agendas. This illustrates the weak-

ness of the traditional residual approach to liberty. The Human Rights

Act 1998 may subject our untidy law to a more principled analysis

which will at least require its anomalies to be justified under the ECHR.

The emphasis of the law is often upon the circumstances and the

setting of the conduct complained of, rather than upon the content

of speech as such; Art. 11 (freedom of assembly) therefore becomes