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Free Expression and the Rule of Law


The Director of Public Prosecutions gave a speech about free expression and the rule of law on Tuesday 4 March at the Birmingham Law School. In the speech he addressed whether there are or should be appropriate limits to free speech, the approach of the criminal law, over time, to this issue and the role of prosecutors.

Birmingham University Law Lecture March 2008

Sir Ken Macdonald, QC, Director of Public Prosecutions


Those who have it taken from them seem tragically to forfeit a part of their genetic material. This is deeply ingrained in all of us.

And yet for such a cherished freedom, its exercise is often redolent with controversy and violence. It can leave in its wake suffering and even death on a very grand scale.

This paradox underscores the drama and danger inherent in the fault line I shall attempt to address this evening. The shifting line between freedom and security.

For prosecutors this is, more prosaically perhaps, epitomised by public debate around decisions to prosecute or not, for example, the Danish cartoon protesters, leaders of the British National Party and people like Abu Hamza.

Yet these debates also extend far beyond the criminal law. The attempted boycott of Israeli universities by some British academics and the recent uproar about the knighthood conferred on Salman Rushdie are examples.

So is it right that there are boundaries? If so, where do they lie? What's their purpose? What is the line between free speech and crime speech and what is it there for?

I expect we all acknowledge that rights have consequences and that they therefore come with responsibilities. But that may be where broad agreement ends.

There are, after all, those who think that free speech should be upheld at almost any cost, even where public safety may be profoundly threatened by its exercise. Voltaire's space and all the idealistic grandeur which adorns it.

And there are others who believe that the law should criminalise speech that may not stray much beyond offensiveness. That the law should act to protect peoples' feelings. As though politeness were a legal rather than a social obligation.

Of course attitudes, like fashions, change quite rapidly in this area. It is a San Andreas Fault which twists and turns around us.

In the 1960s, the American Civil Liberties Union repeatedly went to court to protect the right of Nazi white supremacist organisations to march through American cities. For them, the constitutional right to freedom of expression was sacrosanct.

At the same time our own NCCL, as it was then called, was pursuing a policy known as 'No Platform for Fascists' and refused to support the right of racists to demonstrate.

I don't think this is Liberty's policy today. Today Liberty would, no doubt, support the right of the BNP to exist within the law as a political party and to conduct political campaigns.

But for my part, I don't believe we should allow these various turnabouts and polarisations blind us to the fact that free speech and public safety are not always intrinsically opposing concerns.

Perhaps they should be seen as complimentary.

This is because, by and large, societies that encourage the free exchange and expression of ideas are physically safer.

They are intellectually healthier and morally stronger than those that stifle debate.

They are more mature and certainly better governed. They are likely to be less violent and they are certainly better places to live.

The difficulty comes when one person's right to express a certain opinion conflicts with another person's certain right to safety.

Here, entitlements have to be balanced. They have to be balanced by the public, by Parliament and, finally they have to be balanced by prosecutors and the courts.

And these are amongst the most sensitive judgements which prosecutors are called upon to make.

It is precisely this public arena, where the right to speak freely and the entitlement to live safely cohabit, that I want to try and examine tonight.

I expect it will become clear that I think it an arena that prosecutors should enter with great care and with some degree of trepidation.

But first I want to put this discussion in context. So I'm going to say something about how Parliament and the courts have approached the subject of free speech historically, and to consider the profound effect of the Human Rights Act 1998.

Secondly, I want to talk about the appropriate remit of the criminal law. How far does the criminal law go? What types of speech are restricted? What types are not?

Thirdly, I want to discuss some aspects of our legislation and to examine how they deal with these challenges.

And finally, I want to talk about the role of prosecutors in all this.

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How has free speech been dealt with historically by the courts and by Parliament?

Of course free speech is a concept that has long been identified with common law jurisdictions.

Yet until just forty years ago there was no legally enforceable right to free speech in this country. Freedom of expression was an exceptional freedom rather than a positive right.

This meant that there was no legally binding standard against which to interpret restrictions upon free speech, either in Acts of Parliament or at common law.

We lacked a constitutional Bill of Rights protecting the right to freedom of expression. You could say that we suffered from a dangerous gap in our armoury of fundamental rights protection.

It is certainly arguable that in those days English courts placed too little emphasis on free speech and gave too much weight to restrictions on that right.

There was no statutory framework to guide the courts in human rights cases. Parliament itself was undoubtedly a little too indifferent to the lack of effective legal protection.

But in 1966, the Government decided that complaints of breaches of the European Convention on Human Rights on the part of UK public authorities could be made to the European Commission and the European Court of Human Rights.

And this swiftly encouraged English courts to examine restrictions on free speech more closely. To interpret them more narrowly. It was a healthy development.

In striking a balance between free expression and competing rights and interests, our courts increasingly referred to case law not only from the European Court of Human Rights, but also from other common law jurisdictions like the United States and from Commonwealth countries.

Human rights law entered upon a period, if you like, of globalisation which has continued and developed to this day.

The introduction of the Human Rights Act 1998 took this process a critical stage further. This legislation has clearly had the effect of strengthening the protection afforded by our courts to free speech. It's been good for your vocal chords.

As you know, the Act incorporates the ECHR into UK law. It requires all existing and future legislation, so far as possible, to be read and given effect to in a way that is compatible with Convention rights- including the right to freedom of expression.

It places all public authorities, including the CPS, under a duty to act compatibly with Convention rights and to apply them day to day.

The courts are given a duty to interpret and apply both statute law and common law in line with the ECHR, and they are empowered to grant effective remedies against the public authorities of the State.

So it is right to recognise the critical role that the Human Rights Act 1998 plays in guaranteeing rights such as freedom of expression, enshrined in Article 10 of the ECHR, to people in this country.

But let us pause for a moment to consider its broader benefits. They are very considerable.

I believe that the Human Rights Act provides a profound service to the public interest. It simultaneously rewards the executive for human rights compatible conduct and highlights any failings which may exist through identifying and marking abuses.

It regulates the exercise of power by those in public authority on behalf of all citizens. The framers of the US Constitution could have explained with great eloquence quite why this was necessary in their day. It's no different today.

In that context, it is worth recognising that in some countries around the world, post-9/11 rhetoric has encouraged knee-jerk legislation inconsistent with traditional rights. Indeed, in some jurisdictions, legislation which is even purposefully hostile to those rights.

A particular danger, it seems to me, has been the increasing resort to parallel jurisdictions. These have existed in extradition and in imprisonment.

In these parallel jurisdictions, quite deliberately, standard protections are no longer available. Suspects are removed from the protections of criminal justice and placed, instead, in quasi-judicial or even non-judicial fora deliberately hostile to due process.

If, on one powerful analysis, this is an absolute negation of the rule of law- then surely it is the State itself, whose continued legitimacy depends upon respect for that same rule of law, which is the main loser.

For us, freedom from arbitrary arrest and imprisonment, the right to a fair trial, the freedom to protest peacefully and the freedom to speak openly are crucial ingredients of British life. Each is guaranteed to us by the European Convention on Human Rights.

And we must hold onto these important aspects of our culture. If they are to be any legitimate limitations upon any of them, even in times of grave crisis, we must think very carefully about where the appropriate boundaries should lie.

We must be absolutely clear about what is not negotiable. And the Human rights Act guides us in this.

So it is monumental in promoting human rights principles in the UK.

Of course it protects the vulnerable and marginalised in our society - those without the means of protecting themselves and who are consequently most open to abuse, whether by the state or by fellow citizens.

But this doesn't represent the whole picture. It is a mistake to focus only on protections afforded to defendants. This is the trick played by those who label it a 'charter for criminals'.

Those who argue it is unable to address the threat posed by terrorists. Or even that it positively impedes the struggle against crime and political violence.

Actually the Act addresses both security and the individual rights of everyone involved in the criminal justice process, including victims and witnesses.

It also upholds community rights. It bears stark witness to the fact that security and rights go hand in hand.

For example, some rights are absolute. As we would want them to be.

The Article 6 right to a fair trial is a shining example. You are entitled under this provision to a fair trial in all circumstances and in every situation.

This is as it should be. No state should be permitted to apply punitive sanctions against its citizens in the absence of proper due process.

These rules of due process, which guarantee fairness in criminal trials, are an essential civilising component in the architecture of the State.

Without them there is no moral compass for lawmakers. That is why we celebrate them. It's why they cannot be compromised.

But whilst it defines some rights as absolute, the Convention also provides that some other rights are not. States are permitted to limit certain rights, proportionately, to protect other competing rights.

And the right to freedom of speech is, correctly, one of those rights which states may, in appropriate circumstances, qualify. It is a balanced right.

Of course Strasbourg jurisprudence makes it very clear that the principle of proportionality is of crucial importance.

That the broadening of terrorism legislation, for example, places a great responsibility on States to respond in a proportionate and fair manner. The same must apply to any restriction upon the right to free speech.

Where a right is qualified, or balanced, states are permitted to impose restrictions so long as:

  • they are prescribed by law;
  • they are intended to meet one of the legitimate aims listed, such as being 'in the interests of ... public safety'; and
  • they are necessary in a democratic society.

Thus the Human Rights Act strongly asserts the right to speak freely, but pragmatically balances this right with the requirement for states to provide for their citizens' protection.

The protection of its citizens is, after all a key, perhaps the key, role of the state.

I believe the Act entrenches the essence of our common law freedoms, within the enduring context of the maintenance of the Queen's peace.

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The appropriate remit of the criminal law

I want to take time now to consider the appropriate remit of the criminal law where freedom of expression is concerned.

I'm first going to talk about where the criminal law doesn't intervene, and then I'm going to discuss where it rightly does.

Where doesn't the criminal law intervene?

Well let us start by acknowledging that the law does not criminalise the mere holding of an idea or belief, even those many of us might find odious or abhorrent. The mere fact that someone holds an opinion can never be a reason to prosecute.

You can think what you like.

When one expresses an opinion at a particular time and place, then it can become criminal. But an opinion, in and of itself, cannot be criminal. Ever.

So Sameena Malik, the so called lyrical terrorist, was not prosecuted for having particular thoughts, as some people at the time naively claimed.

Still less was she prosecuted for writing bad poetry. Her poetry formed no part of the indictment against her.

Instead she was prosecuted for possessing documents likely to be of use to terrorists.

These included a snipers' manual, a document called 'The Terrorists' Handbook' and even recipes for explosives and poisons which she had downloaded from the internet.

The context, of course, became even more sinister a few weeks after her conviction.

For during the subsequent trial of a man named Qureshi we were able to reveal that, working airside at Heathrow, she had passed him detailed information about the state of the security procedures at the airport.

On the very day that she passed him this information, he was arrested trying to get on a plane to Pakistan. He was carrying military style equipment and he pleaded guilty to terrorism offences.

This was not thought crime. It was act crime.

Similarly, what made the behaviour of Abu Hamza criminal was not the fact that he held a particular idea or opinion. It was the fact that he expressed it in a way to make others hate. Even to attack or to kill.

Just as the law should not attack thought, it should also be slow to proscribe speech or expression simply because it is capable of causing offence.

Clearly this would criminalise vast swathes of human communication, from comedy shows, to trenchant journalism, to serious political discourse.

If you want to be able to say things that others don't like or find challenging, you need to be willing to hear things that you don't like. To judge whether you agree with something or not, first of all you need to hear it.

Free speech isn't just the freedom to be nice. In his preface to 'Animal Farm' George Orwell said:

'If liberty means anything at all it means the right to tell people what they do not want to hear.' [Note: Preface to Animal Farm (1945).]

Animal Farm, of course, portrayed a world in which growing restrictions on freedom led to abject tyranny.

New ideas or arguments, or views that challenge received wisdom, may offend some people. But the price of living in a free society is that we may be confronted with views we find challenging.

This is an essential aspect of democracy. It strengthens our constitution.

People can be offensive and tasteless.

What is important is that others are able to expose, challenge, and ridicule what they say through open debate. The most effective way of dispelling ignorance and prejudice is through free speech.

The European Court of Human Rights has recognised this.

In Lingens v Austria, the Court was at pains to highlight that political speech, for example, should receive a high degree of protection because of its importance in maintaining democracy. [Note: (1986) 8 EHRR 407.]

In Handyside v UK, the Strasbourg Court stated that:

'... freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions of its progress and for the development of every man.' [Note: (1976) 1 EHRR 737, paragraph 49.]

In vehemently protecting freedom of expression, the Court held in the Handyside judgment that Article 10 of the ECHR:

'... is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but to views that offend, shock or disturb the State or any sector of the population.'

Indeed, it went so far as to state that without this kind of pluralism, tolerance and broadmindedness, there can be no 'democratic society'. [Note: 7 December 1976, 1 EHRR 737, paragraph 49.]

The CPS has been asked to bring criminal proceedings in many cases where the actions in question would not have been criminal acts as the law stands.

For example, a 19 year-old Cambridge University student went into hiding after he re-printed an insulting cartoon in his college magazine from the set that had previously sparked worldwide unrest in Muslim communities.

When the magazine came out, the university authorities acted very swiftly to reassure complainants that they viewed the material published as unacceptable.

They said that the student responsible for publishing it would be identified and punished.

Indeed he was disciplined by his college and visited a local mosque to apologise to the community there.

They accepted his apology.

Yet he was still questioned by the police - and there were calls for him to be prosecuted through the criminal courts.

We resisted these firmly. He had, in our judgement, committed no crime.

The police asked us what they should say to him. We said 'tell him to grow up'.

We had calls to prosecute Anne Robinson when she told Paul Merton that she hated the Welsh and wanted them put in Room 101. We thought the Welsh could probably deal with that.

And there was even one instance where a mounted policeman arrested a student in Oxford who told him his horse was gay. A prosecution in this case would have been a childish farce.

Of course we have always to consider the context.

But the kind of behaviour I have just described within the context I just described, remains outside the remit of the criminal law. And that is appropriate.

Of course there are things that it may not be prudent or wise to say, and things that it may be irresponsible and unhelpful to say. There are plenty of things it is plain nasty to say.

But the debate about what ideas it's sensible and wise and polite to express in a globalised world, where people of different cultures live so closely together, is quite separate to the issue we are considering this evening.

I've highlighted some of the areas where the criminal law stops short of inhibiting free speech. But when does the law criminalise expression?

As we have seen, the right to free speech is not untouchable. It is not protected whatever the cost. There are limits.

As Professor Conor Gearty, Director of the Human Rights Centre at the LSE, has said:

'Human rights should be slowing hate down, not helping it on its way.'

So very obviously, I think, words that impel others to commit acts of violence attract liability.

But the right to free speech is also properly limited where its exercise is apt to result in certain types of hatred.

This is justifiable, because the law defines hatred as an extreme emotion and everyone knows where it is likely to lead - particularly where it is directed at racial identity.

The 20th century contained many examples. I expect this century will too.

Sometimes, of course, it's obvious that a person intends to cause hatred.

For example, when someone makes a public speech condemning a group of people because of their race, in terms which, on any sensible analysis, deliberately encourages the audience to commit acts of violence against that group.

But prosecutions are not strictly limited to cases where there has been an expressed desire to kill or maim- or to cause a person or group of people fear for their personal safety through the immediate threat of violence.

Of course these offences appear in the Public Order Act 1986, which is generally designed to prevent acts of violence, disorder, harm or threats.

But although it will often be present, the risk of a commission of a criminal act of this nature is not essential to prove the commission of an offence of stirring up hatred on the grounds of race.

When people hate others because of race, this hatred may become manifest in the commission of specific crimes motivated by that hate, or simply in abuse, discrimination or prejudice.

These reactions will vary from person to person. But all hatred, in its extreme legal sense, has a detrimental effect, both on individual victims and, importantly, on society as a whole.

And this is bound to be a relevant factor when prosecution is being considered.

So we have, on occasion, brought prosecutions for very extreme publications that have fallen short of stating a desire to see violence committed, but which nevertheless clearly evince an intention to stir up hatred.

As one example, we prosecuted a man for inciting racial hatred when he posted a numbers of very extreme messages on the condolences page of a website set up to commemorate the murdered Liverpool teenager Anthony Walker.

I had thoughts to read some of these posts out to you to illustrate the point, but frankly they are too sick-making.

In a word, we have to balance the rights of the individual to freedom of expression against the duty of the State to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.

This balance means that stirring up racial tension, opposition, and even hostility will not be enough to amount to an offence.

Most commentators agree that the incitement provisions shouldn't be invoked against language or behaviour that merely causes ridicule, prejudice or contempt.

Again, I think that is entirely appropriate.

But what is Parliament's developing view of all this? In which direction do our legislators appear to be moving?

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There are a number of criminal offences that are relevant in the context of free speech and public protection.

Incitement to racial hatred under the Public Order Act 1986, and solicitation to murder under the Offences Against the Person Act 1861 are the main offences that have been employed in prosecutions to date.

But we also bring prosecutions for verbal threats in the streets under the Public Order Act 1986 and the Protection from Harassment Act 1997.

However I think the development of a more recent piece of legislation illustrates nicely Parliament's current approach to the balance we have been considering this evening.

Incitement to religious hatred in the Racial and Religious Hatred Act 2006 came into force on 1 October 2007.

When this legislation was first mooted, there was a good deal of concern. Some of the concern was based upon bizarre misinformation.

For instance, some people believed that the legislation would prevent comedians making jokes about religion.

This was never true.

Others believed the statute would protect their particular religion from insult.

This was never true, either. Consistent with the law, you are perfectly free to insult any religion.

In fact, Parliament took a very firm stance in favour of protecting freedom of expression in the 2006 Act. This becomes evident if we look at just a few of its provisions.

First, the words, behaviour or written material must be threatening. So the new law does not cover simple abuse or insult, unlike its racial hatred counterpart.

Secondly, the words, behaviour or written material must be intended to stir up religious hatred.

This is much more specific than the conditions for prosecuting incitement to racial hatred, where words or behaviour likely to stir up hatred are sufficient.

So this is a much higher standard. And, strikingly, it means that even abuse or insults which are positively intended to stir up religious hatred may not be prosecuted under this law.

Thirdly, and perhaps most significantly, the 2006 Act contains a very broad exemption to protect freedom of speech.

In essence, it states that the new offence shouldn't be used in a way that prohibits or restricts any

  • discussion
  • criticism
  • antipathy
  • dislike
  • ridicule
  • insult, or
  • abuse

of a religion or its beliefs or practices.

And it cannot be used to prohibit urging adherents to cease practicing their religion. To become apostates.

It seems to me that the balance Parliament was striving for here is very clear. There seems to have been a desire to interfere with free expression as little as possible in the field of ideas.

People can be expected to face robust challenges to their ideas. This is different to facing a robust challenge to your identity.

I expect most of us welcome that. And there have been no prosecutions for this offence so far.

We must wait to see what approach Parliament takes to the proposed legislation outlawing the incitement of hatred based upon sexual orientation.

And whether, in future, if we see further expansion of this category of legislation to deal with disability hatred, for example, Parliament prefers to stick to the restrictive approach it has followed in religious hatred cases.

It may be possible, on the basis that these offences would not be concerned with 'ideas protection', but rather with 'identity protection', that legislators might prefer the broader net represented by race hate laws.

In any event, I am sure the debates will be hard fought on both sides.

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The role of prosecutors

And that brings me to the role of prosecutors in this context.

Prosecutors have to make a concerted effort to gain the confidence of the public and establish good and sustainable community relations.

We must re-assure people that where evidence of crime exists, we will prosecute.

But this means we also have to explain to people where the limits of the criminal law lie and what they can expect from legislation.

We don't want unrealistic expectations. They are corrosive.

Furthermore, Prosecutors have to show both determination and restraint when it comes to tackling crime based upon expression.

Determination, because it is important to demonstrate that sometimes statements overstep not just the boundaries of taste, decency and tolerance, but also the boundaries of the law.

So, as Mr Justice Hughes emphasised in the Abu Hamza case, it is not an offence to describe Britain as a 'toilet'. Nor is it an offence to suggest that the West is corrupt and without moral conscience.

But it is an offence to say that "the killing of non-Muslims is justified in any circumstances".

That prosecution succeeded because this was speech which broke the law.

As the Times said in an editorial, we demonstrated beyond reasonable doubt that Abu Hamza's words were not simply 'beyond the pale, but beyond legality'. [Note: Times Online article.]

But equally, prosecutors must show restraint, because to echo Article 10 of the ECHR and Article 19 of the Universal Declaration of Human Rights: 'Everyone has the right to freedom of opinion and expression.'

This freedom is a marker for all other kinds of freedom. It is the surest guarantor of freedoms like religious freedom. And without it, there is no meaningful democracy.

Prosecutorial decisions that unduly interfere with the right to free speech risk degrading the whole of criminal justice.

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It will always be difficult to come up with a clear boundary between freedom of expression and the criminal law, because the debate involves considerations that are by no means universally agreed.

And considerations of what is acceptable and unacceptable can change over time.

It is fundamental that the law, as a living instrument deserving of loyalty and respect, should reflect this. One of the great strengths of human society in its freer state is its sparkling tendency to develop, evolve and progress.

It seems to me that we should treasure this aspect of our existence.

A reckless inciter of violence imprisoned in one generation is a martyr to free speech in the next.

For our grandparents a gay marriage would have been an abomination. To our children it is the excuse for a great party.

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