There have been calls, led by the distinguished human rights barrister Adam Wagner, for the prosecution of George Galloway for “racial incitement”.
The evidence so far in the public domain consists of a video of Mr Galloway, the Member of Parliament for Bradford West, apparently addressing a public meeting. It would appear that the speech may have been delivered at a political meeting called by Mr Galloway’s party “Respect”. His words, which are delivered by him standing in front of a Palestinian flag, are very clear:
“We have declared Bradford an Israel-free zone. We don’t want any Israeli goods. We don’t want any Israeli services. We don’t want any Israeli academics coming to the university or college. We don’t even want any Israeli tourists to come to Bradford even if any of them had thought of doing so. We reject this illegal, barbarous, savage state that calls itself Israel. And you have to do the same.”
Mr Wagner was tweeting late at night and there is in fact, strictly speaking, no offence of “racial incitement.” There offences under S.4, 4A and 5 of the Public Order Act 1986 (essentially threatening or provocative behaviour towards a particular person) or S.5 (threatening behaviour “within the hearing or sight of a person likely to be caused harassment, alarm or distress …”) which can be aggravated if they are motivated by racial hostility. In this case, as far as we know, Mr Galloway’s remarks do not appear to have threatened or alarmed anyone present at the meeting, or indeed anyone likely to have been present given that it was arranged by Mr Galloway’s supporters.
Nevertheless the West Yorkshire Police have received a complaint – not as far as I know from Mr Wagner – and it seems likely that they and the Crown Prosecution Service will be considering a possible prosecution for an offence of doing an “act intended or likely to stir up racial hatred” under S.18 of the same Act. In legal shorthand this is often referred to to as the crime of “inciting racial hatred.”
Section 18 of the Public Order Act 1986 provides (omitting irrelevant words) as follows:
A person who uses threatening, abusive or insulting words or behaviour … is guilty of an offence if:
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.
(5) A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour … to be, and was not aware that it might be, threatening, abusive or insulting.
The expression “racial hatred” is defined in S.17. For the purposes of an offence under S.18 it means:
Hatred against a group of persons … defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.
The offence is a serious one, punishable if tried on indictment by a maximum penalty of 7 years imprisonment.
In accordance with the CPS code for Crown Prosecutors a prosecution should be instituted only if:
(a) The evidence creates a realistic prospect of conviction, and
(b) It is in the public interest to prosecute.
A realistic prospect of conviction
The question for the CPS is whether an objective and impartial jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. In reaching that decision prosecutors must approach the evidence objectively, ignoring any possible political views or prejudices that might exist in any potential judge or jury.
The first thing that the police and CPS will want to do is to obtain a video of the whole of Mr Galloway’s speech. It would be quite impossible to decide that he should be prosecuted unless his words are understood in their proper context.
Nevertheless, based on the material publicly available, it is possible to make some observations.
The video shows that whatever one might make of the content, the manner of delivery was moderate and relatively restrained. Any prosecution would have to relate to Mr Galloway’s actual words rather than to his behaviour.
Before considering the meaning of “racial hatred” we need to look at whether Mr Galloway’s speech was capable of being “threatening, abusive or insulting.” The words are to be given their “ordinary English meaning” (see Brutus v. Cozens  A.C. 854). As Lord Reid put it “… an ordinary sensible man knows an insult when he sees or hears it,” and he also recognises a threat. For what it is worth, in my view a jury would be entitled to understand Mr Galloway’s words as “threatening.” He is of course perfectly free to express his strongly held political views. However, the declaration of Bradford as “an Israel-free zone” together with the words:
We don’t want any Israeli academics coming to the university or college … We don’t even want any Israeli tourists to come to Bradford ….”
could be understood as a threat to Israelis to stay away from Bradford, or even a demand that Israelis currently living in Bradford should leave. If that is what Mr Galloway meant (and I stress that one would need to consider the whole of his speech) it would seem pretty threatening if I was an Israeli contemplating a visit to Bradford, or indeed living there. It is true that Mr Galloway declared that Bradford was an “Israel-free”, rather than “Israeli-free” zone, but the passage of the speech that has been publicised appears to be directed unambiguously towards Israeli people and not just towards the state of Israel or even “Israeli goods and services.” One does not need to know much history to find an exceedingly unpleasant resonance between the term “Israel-free” and the word “Judenrein”. Mr Galloway knows a lot of history.
It is true that he did not make any explicit threat of violence towards Israelis, but I see no reason why “threatening words” should necessarily involve an explicit threat of violence: a threat to shun and avoid a particular racial group could also be considered a threat, as could a demand that a particular racial group should leave a city.
That, of course, is not the end of the matter. In order for Mr Galloway to be convicted a court would also have to be satisfied that either:
(a) he intended to stir up “racial hatred,” or
(b) having regard to all the circumstances racial hatred was likely to be stirred up thereby.
“Racial hatred” is defined by S.17 of the Act. It means:
“… hatred against a group of persons … defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.”
Plainly “Israelis,” whilst not in ordinary language a “racial” group, are defined by their nationality and therefore fall squarely within that statutory definition.
Should the court decide that Mr Galloway’s words were indeed threatening, it would then need to decide whether he “intended thereby to stir up racial hatred,” or at least whether his words were likely to do so. There does not appear to be any authority on what is meant by “stirring up” but I would take it to mean something along the lines of “encouraging” or “inciting”. This was a political speech and clearly intended to encourage, or “stir up”, some form of action: at the very least it sounds calculated to make Israelis unwelcome.
“Hatred” is, of course, a strong word, going beyond mere “dislike” or “disapproval.” Merely stoking up racial tension might well fall short of stirring up “hatred.” I anticipate that Mr Galloway would argue that he was not intending to stir up hatred against Israelis, but to persuade people of a widely held and perfectly legitimate political view that the policies of the State of Israel towards Gaza are abhorrent. The question would be whether calling for the establishment of an “Israel-free zone” in Bradford and demanding that Israelis stay away goes beyond legitimate criticism of the policies of the Israeli government and becomes a stirring up of hatred against Israelis. The Crown Prosecution Service guidelines on prosecuting this offence do however contain these words:
“Sometimes it may be obvious that a person intends to cause racial hatred, for example, when a person makes a public speech condemning a group of people because of their race and deliberately encouraging others to turn against them.”
The CPS will no doubt ponder on whether Mr Galloway’s speech comes within this description.
Commission of the offence does not actually require Mr Galloway to have intended to stir up racial hatred, so long as “having regard to all the circumstances racial hatred [was] likely to be stirred up thereby.” Even if telling people not to welcome Israelis to Bradford, telling Israelis to stay out of Bradford and proudly declaring Bradford “Israel-free” does not in itself provide sufficient evidence from which an intent to stir up racial hatred can be inferred, it does seem evidence on which a court could conclude that a hatred of Israelis was, at the very least, likely to be stirred up.
Mr Galloway would still have a potential defence available if did not intend to stir up racial hatred if he can show that he was not aware that [his words] might be, threatening, abusive or insulting.
So on the basis of what we have been told so far, there do seem to be grounds upon which a court could conclude that, even though he may not himself be anti-semitic, Mr Galloway’s speech was likely to stir up hatred against Israelis. If the CPS concludes that there is a realistic prospect of conviction, it would then need to consider whether a prosecution is “in the public interest.”
The public interest
There is a presumption that if there is a reasonable prospect of conviction, a prosecution will normally follow unless there are good reasons why it should not. However, the already difficult task of the CPS becomes particularly sensitive in a case of this sort, because whatever decision it makes is liable to be criticised as political.
The sorts of considerations that the CPS usually apply include whether the offence is trivial, the age of the alleged offender, whether any serious harm has been done to an individual or the community and so on, as well as whether prosecution is a “proportionate” response.
The particular difficulty in this case – assuming the CPS conclude that there is a reasonable prospect of conviction – is balancing Mr Galloway’s right to freedom of expression against the need to prosecute criminal offences. The right to freedom of speech is a crucial right and it is protected under Article 10 of the European Convention on Human Rights:
(1) Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ….
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
So, although it is important, the right to freedom of expression is not an absolute right that trumps all others. In Norwood v. United Kingdom  ECHR 730 (16 November 2004) the European Court of Human Rights refused even to consider an argument that the prosecution of Mr Norwood for displaying an anti-Islamic poster in his bedroom window amounted to a breach of his Article 10 rights. The Convention gives States a wide discretion to prosecute for offences of this sort and the courts would be unlikely to declare his prosecution a breach of his human rights.
Moreover, the declared CPS policy is to take a very hard line with allegations of racial or religious crimes:
We regard any offence motivated by hostility towards the victim because of the victim’s ethnic or national origin or religious beliefs as being more serious. Also, we are aware that even relatively minor racist or religious crime can have a disproportionately large impact upon individual victims. As a result, the public interest in racist and religious hate crime cases that are referred to us will almost always be in favour of a prosecution.
In the light of this policy it is hard to see how – if there was a reasonable prospect of a conviction – the CPS could decline to prosecute Mr Galloway on public interest grounds.
S.18 remains one of the comparatively few offences for which the personal authorisation of the Attorney-General is required before a prosecution can begin. If the CPS decides that a prosecution both has a reasonable prospect of success and that it would be in the public interest, it will then need to send the papers to the new and comparatively inexperienced Attorney-General, Jeremy Wright QC for his decision.
He will no doubt be aware that high profile prosecutions for offences of this sort have a dismal record of success. They can be used by defendants for grand-standing and publicity. The 2006 prosecution of BNP leader Nick Griffin and one of his unpleasant associates Mark Collett for stirring up racial hatred against Muslims ended in the acquittal of both men. Mr Collett, for example, had been recorded saying “let’s show these ethnics the door in 2004,” yet a jury still found him not guilty. Mr Galloway, an elected MP and a much more popular and high profile character in West Yorkshire, would no doubt mount a powerful and muscular defence if any prosecution were brought.
On the other hand, it would take a bold Attorney to refuse to authorise a prosecution were the CPS to take the view that Mr Galloway’s speech was prima facie criminal.
Both Mr Galloway’s supporters and those, such as Mr Wagner, who hold him in less regard will await developments with interest.