During the debate, the Lords narrowed the o¡ence in several ways, of which
three in particular ^ the ‘Lester’ amendments ^ are signi¢cant. First, the Lords
introduced a saving for freedom of expression, discussed later. Second, they
removed the‘likely to’test, so the o¡ence could be committed only if it could be
shown that the person had intended to stir up hatred. Third, they altered the mode
of incitement from abuse, insult or threat to simply threat.
In the Commons at third reading, the government tried to replace the ‘likely to’
element with a new test of subjective recklessness. They were spectacularly defeated
and the Lester amendments stayed.
The media reported a mood of relief:
an o¡ence of incitement to religious hatred was seen as unpopular and ill iberal
many argued that the Lester amendments created a sharper, more e¡ective piece of
legislation which had less impact on freedom of expression.Were they right? This
article will consider the many questions which the new Part 3A raises. It will con-
clude that an o¡ence con ¢ned to requiring proof of intention si mply will not work.
THE NEW OFFENCE
The Act creates a new Part 3A of the Public Order Act 1986 for England and
Wa le s .
Like the law on racial hatred,
Part 3A casts a wide net. It covers speech
and actions. It includes displaying material, publishing it and distributing it, and
sometimes even possessing it. Those who present or direct a play, or distribute,
show or play a recording, or include a programme in a programme serv ice,
may all be caught within the o¡ence.
The prosecution must show that the words, behaviour or material were threa-
tening, and that the person intended to stir up religious hatred.‘Religious hatred’
is de¢ned in section 29A as ‘hatred against a group of persons de¢ned by reference
to religious bel ief or lack of religious belief ’.
The o¡ence need not be committed in public. It can take place in private. A
person maycommit the o¡ence in aprivate dwelling by using threatening words
or behaviour or displaying (with the requisite intent) any written materialwhich
is threatening, if he has any reason to believe that this might be seen or heard by
people outside.Woe betide those who live in moderntenements? The o¡encecan
also be committed in an inchoate form, such as storing material with the inten-
tion of broadcasting it.
Any o¡ence which includes written and broadcast material will extend beyond
territorial border s. Part 3A will mostly not apply to Scotland, b ut anyone being
8 HC Deb 31January 200 6vol 442 cols 235^244. This wason lythe seco nddefeat su¡ered by new
Labour in the House of Commons since 1997.
9 David CharterTheTimes 1February 200 6,Michael White;TaniaBraniganThe Guardian1 February
2006, Ben Russell; James Lyons; Brendan Carlin and Neil Tweedie The Telegraph 1 February
2006. Similar views were presented in the red-toppress.
10 Such views were expressed throughout the parliamentary debates: see Jonathan Petre The
Telegraph,31 January 200 6, LeaderThe GuardianJanuary 31 2006, MatthewTempest; PollyToynbee
TheGuardian January 312006 as examplesof the last comments before the ¢nal Commons debate.
11 Racial and Religious Hatred Act 2006 s 4.
12 Which remains unchanged.
13 This will include a cable ‘programme service’:for a de¢nition, see the Broadcasting Act 1990s 201.
The Racial and Religious HatredAct 2006
90 r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(1) MLR 89^113