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Sexual Orientation: CPS Guidance on stirring up hatred on the grounds of sexual orientation

Published: 17 March 2010

The Law

The Criminal Justice and Immigration Act 2008 ("the 2008 Act") received Royal Assent on 8 May 2008. Section 74 and schedule 16 of the 2008 Act amend part 3A of the Public Order Act 1986 ("the 1986 Act") so as to create offences of intentionally stirring up hatred on the grounds of sexual orientation. The provisions came into force on 23 March 2010.

The new offences follow the same legal principles as the existing offence, under the 1986 Act, of intentionally stirring up hatred on religious grounds. They deal with conduct (either words or behaviour) or material which is threatening in nature, and which is intended to stir up hatred against a group of people who are defined by reference to sexual orientation. By contrast, the racial hatred offences cover a wider range of conduct or material including that which is threatening, abusive or insulting, and which is intended or likely to stir up hatred.

The term 'hatred on the grounds of sexual orientation' is defined in the new section 29AB of the 1986 Act and is expressly limited to orientation towards persons of the same sex, the opposite sex or both. It does not extend to orientation based on, for example, a preference for particular sexual acts or preferences.

The offence is committed if a person uses threatening words or behaviour, or displays any written material, which is threatening, if he intends thereby to stir up hatred on the grounds of sexual orientation. Threatening is the operative word, not abusive or insulting. Possession, publication or distribution of inflammatory material is also an offence.

The offence can be committed in a public or private place, but not within a dwelling, unless the offending words and behaviour were heard outside the dwelling, and were intended to be heard.

The defendant must intend to stir up hatred on the grounds of sexual orientation; recklessness is not enough; and the behaviour must be threatening. So using abusive or insulting behaviour intended to stir up hatred on the grounds of sexual orientation does not constitute an offence, nor does using threatening words likely to stir up hatred on the grounds of sexual orientation.

Conduct or material which only stirs up ridicule or dislike, or which simply causes offence, would not meet the requisite threshold required by the Act, i.e. hatred. So, for example, the offences do not, and are not intended to extend per se to childish name calling, or the telling of jokes, or the preaching of religious doctrine, unless those activities are threatening or intended to stir up hatred.

This is reinforced by the freedom of expression defence contained in section 29JA, which confirms that "for the avoidance of doubt, the discussion or criticism of sexual conduct or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening".

The offences extend to England and Wales.

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Penalty

The maximum penalty on indictment is seven years or a fine or both. The maximum penalty on summary conviction is six months imprisonment, or a fine not exceeding the statutory maximum, or both.

Referral to Counter Terrorism Division

These types of allegations are by their very nature sensitive. For that reason, and to ensure a consistent approach, any allegation under this legislation must be referred to the Counter Terrorism Division.

When an Area becomes aware of such a case, it should be referred to the Counter Terrorism Division within seven days. As part of the referral, the Area must submit a report which is sufficient detailed to enable the Counter Terrorism Division and the Area to have an informed discussion about where the responsibility for the case should lie.

If it is decided that the case should be prosecuted as an offence of stirring up hatred on the grounds of sexual orientation, the Counter Terrorism Division will take over the conduct of the case from the Area. If the Counter Terrorism Division considers that it is clearly a case where stirring up hatred on the grounds of sexual orientation does not apply, the case should be returned to the Area within seven days of that decision being made.

If the Counter Terrorism Division decides to deal with a case, the file is held there and dealt with there. Thereafter, cases can only proceed with the consent of the Attorney General.

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