The Met has a problem with hate-crime. It can’t explain what it means.

The Metropolitan Police has a rather strange notice about “hate crimes” on its website.  It has attracted quite a bit of attention on social media.

Hate crimes and hate incidents

If someone commits a criminal offence and the victim, or anyone else, believes it was motivated by prejudice or hate, we class this as a ‘hate crime’. It means the offender can be charged for the crime itself and also their reasons for doing it.

If someone does something that isn’t a criminal offence but the victim, or anyone else, believes it was motivated by prejudice or hate, we would class this as a ‘hate incident’. Though what the perpetrator has done may not be against the law, their reasons for doing it are. This means it may be possible to charge them with an offence.

Let’s break this down, sentence by sentence.

If someone commits a criminal offence and the victim, or anyone else, believes it was motivated by prejudice or hate, we class this as a ‘hate crime’.”

The classification has been adapted from Recommendation 12 of the MacPherson report into the murder of Steven Lawrence, which said that a racist incident should be defined as:

… any incident which is perceived to be racist by the victim or any other person”

MacPherson’s concern was that investigating officers might sometimes decline to take allegations of racist crime seriously if it was left to them to judge whether a particular incident was racially motivated.

As a working principle in a police force still believed by many to be infected with prejudice the MacPherson definition may be a useful corrective to a tendency to overlook or downplay racism or other hate motivation. That doesn’t stop it being a pretty rotten definition. It requires the police to treat crimes as racist (or motivated by religious or homophobic hate) whenever someone, however unreasonably, makes that assertion. It requires the police, on occasion, to believe and indeed to perpetuate a fiction. In this respect it is rather similar to the College of Policing’s guidance that officers should “believe the victim” when investigating crime.

So, it is a controversial definition, in my view a bad definition, but it does at least make linguistic sense.

The next sentence is more opaque:

“It means the offender can be charged for the crime itself and also their reasons for doing it.”

This is beginning to get rather confused. It is true that there are some offences (principally assault, harassment, and various public order offences) which become “aggravated,” or more serious, if they are proved to be motivated by racial (or religious) hatred. A person might be charged for example, with “racially aggravated assault” but it is still all one charge. The Met seems to imply that a person can face two charges, one for the assault, and another for “their reasons for doing it.” That is not true.

Next the Met goes back to MacPherson:

“If someone does something that isn’t a criminal offence but the victim, or anyone else, believes it was motivated by prejudice or hate, we would class this as a ‘hate incident’.”

Sir William made a recommendation  that:

… the term “racist incident” must be understood to include crimes and non-crimes in policing terms. Both must be reported, recorded and investigated with equal commitment.”

It is probably sensible that racist (or “hate”) incidents should generally be recorded, even when they do not amount to crimes. There is more to policing than simply arresting criminals. Part of good policing involves talking to people and trying to persuade them not to behave badly. And of course the police should be allowed to gather intelligence on suspicious activity that might not be criminal. That said, MacPherson’s recommendation that “non-crimes” should always be investigated with as much commitment as crimes does seem rather foolish.

Now we come to the final two sentences of the announcement. They do not come from MacPherson but from the Met itself:

Though what the perpetrator has done may not be against the law, their reasons for doing it are. This means it may be possible to charge them with an offence.”

We are back to the suggestion that a person may be charged with“the reasons for doing” an act which is itself lawful.

The Met is in a terrible muddle here and it is very hard to understand what they mean.

We need a little, just a little, basic law; and I hope you’ll also forgive me for using just four Latin words. (Odd though it seems, Latin doesn’t always obfuscate. Even if, like me, you would be horrified and baffled to be faced with a lengthy passage the occasional Latin word or phrase can actually help when talking about legal concepts, just as it can help when talking about gardening or insects).

Most crimes consist of 2 elements: first of something done, the Latin phrase actus reus covers it conveniently; and secondly of a “mental element”, a “guilty mind” or mens rea.

So, for example, the actus reus of murder is killing someone; but a killing is not a crime at all unless it is accompanied by the appropriate mens rea. It may be accidental (in which case no crime is committed), or grossly negligent (in which case the crime is manslaughter but not murder). It is only if the killer intends to kill (or at least to cause serious injury) that the crime of murder is committed. In fact the boundaries between murder and manslaughter get rather more blurred than this, but we don’t need to worry about that for now.

The same principle applies to other crimes. If I push you I might do so accidentally, in which case I have committed no crime, or I may do so with what the law calls a “hostile intent” in which case I have assaulted you. If I take money out of your purse I may do so intending to permanently deprive you of it, in which case (as long as I’m acting dishonestly) I’m guilty of theft; or I may do so intending to repay you in full, in which case I’m not guilty (although again the law of theft can get rather more complicated than that). Since we’ve introduced a bit of Latin, let’s quote a handy maxim from Roman law: actus non facit reus nisi mens sit rea, which translates as “An act does not become a crime unless the mind is guilty.”

Whatever its status in Roman law, the maxim is not entirely accurate as a statement of English criminal law. There are, in fact, some crimes where your state of mind is irrelevant and doing the actus reus alone is enough to make you guilty. If you drive over the speed limit you are guilty of an offence even if you did not intend to do so, and even, in fact, if (unknown to you) your speedometer is broken so that you didn’t realise what you were doing. If you drive with a breath alcohol level over the legal limit, your state of mind is irrelevant; you are guilty even if you think you’re sober and even if your drink was laced, although if you can prove (take it from me that you almost certainly can’t) that it was laced you may escape serious punishment. If you cause noxious waste to be discharged into a river without a permit it’s no defence to say that you didn’t mean to, or even that you weren’t negligent. These are said to be crimes of “strict liability.” There are quite a few such offences, but they are still anomalous because there is a strong presumption that a criminal offence requires some mens rea unless the words of a statute make it absolutely clear that it does not.

But although there are some cases where doing an act is illegal irrespective of your state of mind, there are no cases where your state of mind can make you guilty of an offence if you don’t actually do anything capable of amounting to a crime. It doesn’t matter how wicked your mind may be, unless it is combined with an act of some sort (or, very occasionally, where you are under a duty to act and you omit to do so) you have not committed an offence. Intending to kill someone is not criminal. Intending to rape is not an offence. Intending to incite racial hatred is not an offence. The closest the law gets to criminalising a state of mind is the offence of “conspiracy” to commit a crime, but even that requires an agreement (which, as prosecution-minded judges like to emphasise to juries, can be made with just a nod or a wink) between at least two people to commit a crime.

The Met’s website seems to presuppose the existence of an entirely novel type of criminal offence: a crime which requires only a guilty mind, mens rea but not actus reus. If such an offence existed then “thought-crime” would be a very good description of it. But of course it doesn’t.

With that law lecture out of the way, let’s look again at the Met’s website:

Though what the perpetrator has done may not be against the law, their reasons for doing it are.”

There are indeed some acts which, as the Met implies, are never against the law, whatever “the perpetrator’s” reasons for doing it may be. If this perpetrator sits down in his armchair, he is not committing a crime, however wicked he may be, however evil his intentions, and even if he is doing so solely in order to make himself comfortable before thinking up a way of massacring all the Muslims in the neighbourhood.

Moving slightly closer to what I think the Met is getting at, if I put up a sign in my front garden saying “BAN ALL IMMIGRATION,” that is no more against the law than it would be to sit in my armchair. It is not threatening, it is simply an expression of opinion. My reasons for doing it might be very disreputable: I may believe, like Max Moseley apparently used to believe, that immigrants should be kept out because they carry “venereal diseases.” If I organise a campaign against circumcision, that is lawful whether my “reason for doing it” is the laudable one of believing that children should not be subjected to unnecessary pain, or a scurrilous and anti-semitic desire to make life difficult for Jews. There is no sense in which my “reasons for doing it” are in themselves “against the law.”

On the other hand, if I put up a sign saying “KILL ALL MUSLIMS,” or for that matter KILL ALL INFIDELS” that would, in all probability, be the offence under S.29B of the Public Order Act 1986 of displaying threatening written material (the actus reus), as long as I had the mens rea of an “intent to stir up hatred against a group of persons defined by reference to religious belief or lack of religious belief.” The crime would not be my “reason for doing it,” it would be the combination of making a threatening display and my intention in making it.

This means it may be possible to charge them with an offence.”

It should be obvious now that whatever the Met’s gobbledegook may mean, this is nonsense. There is no offence of having an unlawful reason for doing something. Thought-crime does not exist in English law.

Does all this matter? Why, you may ask, are you wasting our time on a lengthy and frankly rather boring dissection of a website that was probably written by a Met PR person who has just worded a couple of sentences rather clumsily?

I think it matters quite a lot. Most people have only a fairly sketchy idea of the criminal law. People look to the police for guidance on what is and isn’t a crime. They won’t get it from this; or, which is even worse,  they will get it. Despite its many failings the Met still has a reputation as a reasonably efficient, impartial and reliable upholder of the law. Padding out its website with gibberish does not enhance that reputation. It is even worse when, if you do manage to discern some meaning from the garbled prose, it fundamentally mis-states the law.

So a badly written website misleads the public and damages the reputation of the Metropolitan Police. That does matter.

There is another problem. People reading the website, or more likely the extract that has been spread around the internet in the last few days, will quite understandably conclude that it means what it appears to say: that you can be prosecuted for doing something legal because of your “reasons for doing it.” They can hardly be blamed for believing that “thought-crime” is a reality in English law, after all the Metropolitan Police says that it is. They will then either harrumph in outrage, or mock the stupidity of the police and the whole concept of “hate crime,” or perhaps even make silly complaints against people they don’t like in the hope that they will get them arrested for “hate-crime.” Yet racist incidents, attacks on or harassment of Muslims or Jews, or on gay people and so on – in other words “hate crimes” – are all real and serious issues. A foolish and garbled message from the police does nothing to deal with them, if anything it trivialises the problem.

That matters too.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

69 thoughts on “The Met has a problem with hate-crime. It can’t explain what it means.”

  1. Your handbag example is wrong. Unless you’re intending to repay the specific notes/coins then there’s still an intent to permanently deprive and it’s theft.

    Other than that, very measured and reasonable criticism.

      1. You’re of course correct. I meant purse. For some reason when reading it I was imagining a handbag in my head which then came out when typing!

    1. dnt matter surely….nobody can prove what they were intending to do in the future? and it’s same with justice, delayed is deprived….my kids, myself whatever starving to death in the mean time…?

  2. With the obligatory “I am not a lawyer”, a couple of thoughts.

    One is historical; while it’s entirely probable the hate crime/hate incident definition originates in McPherson, the Met is more probably drawing on the old ACPO Hate Crime guidelines, which used this language, and which are still widely used, for instance by Report It http://report-it.org.uk/files/hate_crime_definitions_-_v3_0.pdf

    The other is that while giving primacy to the views of the victim as to whether the crime is motivated by hostility to a protected characteristic may be open to abuse, the alternative is to leave people vulnerable to hate crime that doesn’t meet the perceptions of non-minority group members. For instance, as a disabled person, the majority of the hostility I encounter from complete strangers on the streets doesn’t attack me for being a wheelchair user, it alleges I am not in fact disabled. This is part of the wider narrative that all disabled people are actually fakes and frauds, in it for the welfare benefits. Most people, including police officers, wouldn’t perceive “You don’t need that chair” as disability hate, but it would be difficult to find a disabled person who doesn’t perceive it that way.

    So while the ACPO definition may be flawed, it’s flawed in the right way, by allowing discretion in recognising that hate crimes may take innovative and non-obvious routes in directing aggression at their victims.

    1. I think the ACPO guidelines you’re referring tp themselves post-date and originally come from MacPherson. The Report actually discussed the then current ACPO definition, which was this:

      “A racial incident is any incident in which it appears to the reporting or investigating officer that the complaint involves an element of racial motivation, or any incident which includes an allegation of racial motivation made by any person.”

    2. I’m not sure from your comment whether or not you classify your given example – morons expressing their cretinous opinions out loud – as itself a ‘hate crime’; if so, what punishment would you recommend?

      From only a couple of years ago (when this insidious slide towards the criminalisation of thought still seemed like something that would surely be reversed “before it’s too late”) I gave an example of a ‘hate crime’: someone “being called ‘Speedy Gonzalez’ when out in his wheelchair”. It was hard not to laugh at the time though it’s not so easy now… and frankly I’m wary of the sentence some would mete out for daring to chuckle, undoubtedly a crime as…

      “If you think it is, it is. Whatever they call you, call us.”

      https://winegumtelegram.wordpress.com/2015/12/14/my-kingdom-for-a-house/comment-page-1/#comment-32

      Another example of how rapidly this madness has taken over:

      “At the time [less than a year previously], North Yorkshire Police said these matters [including “catcalling and wolf whistling”] should still be reported to the force, but would be considered harassment and not a hate crime.
      However, DCC Winward said on Wednesday that the force would now classify misogyny as a form of hate crime…”

      http://www.yorkpress.co.uk/news/15142043.Misogyny_now_a_hate_crime_in_North_Yorkshire/

    3. While I agree that’s an awful thing to say, it’s just insulting. I don’t think that should be a crime of any sort. Whether true or not.

      If we criminalise people who cause taking offence, you will end up with anarchy. Especially if there is no requirement for actual offence.

      For example, there is a difference between calling you a fake/fraud and having a discussion about the level of disability fraud, but some people will interpret the latter as the former.

    4. Oh, purleeze!

      ‘Most people, including police officers, wouldn’t perceive “You don’t need that chair” as disability hate, but it would be difficult to find a disabled person who doesn’t perceive it that way.” ‘

      It might well be “disability hate”, but I would hope it WOULD be difficult to find a DISABLED person, never mind a police officer, who DOES perceive it in the way kicking someone’s head in for being a ginger minger, a specky four eyes, or a coffin-dodger is perceived!

      On the other hand there are people who used to get Orange Badges for bowel conditions that effectively left them housebound without quick and easy access to toilets on their travels.

      But apparently the wheelchair lobby (who apparently in Eire are actually the body in charge of issuing Blue Badges!) hated them jumping out of their cars in the supermarket car park and sprinting for the loo.

      Claimed invisible disabilities brought Disabled Badge schemes into disrepute.

      Complained giving people with such disabilities a Blue Badge would leave them having to ride their electric mobility scooters all the way from the back of the car park.

      And so they stopped people who actually needed to park by the entrance and throw wide open their car doors from doing so, and left them trying to sprint a marathon from the far end of the car park while doing a Paula Radcliffe in their pants.

      And then waddle through the store to the loo.

      Or more likely give up and go home.

      Now THAT’S a hate Crime!!!

      And whingers like you should be ashamed of yourselves.

      It’s not even as if “You don’t need that chair” is that hateful or abusive!!!

  3. I wonder if one factor is a kind of conceptual leakage from the terrorist offences brought in by the Terrorism Act 2005, the ‘preparation’ offence in particular. A number of unsuccessful appeals have established (ex negativo) that any act at all may be charged as ‘preparation for a terrorist act’, if it can be plausibly made out as such. The best defence we have against obviously strained or frivolous applications (such as sitting in an armchair the better to plan a terrorist attack) is our collective confidence that the CPS would never bring such a case. (This argument is made out more fully in a forthcoming paper in Legal Studies.) So there we have a situation where the criminality of the actus reus is derivative of the mens rea (viz. the intention to proceed to the commission of terrorist acts). Perhaps whoever drafted this guidance was working on the basis that as goes terrorism, so goes hate crime.

    1. I think you’re onto something here. If you look at the way the police are handling people with right wing opinions, they are mostly using anti terrorism measures as a way to deal with them. Lauren Southern being held under Section 7 of the terrorism act is an obvious case in point; there’s also a eecording on YouTube of someone who was interviewed by his local force and quizzed about his views on Islam by officers who kept referring to the Prevent requirement to stop radicalisation in its tracks.

      1. they do a lot worse to us ‘leftwingers’…. ass raped in mental prisons is just the start….gets a lot worse than that and you can’t even work, get any kind of a life once the state has stolen your papers…..they still talk about over a million not being able to get bank accounts…..so they must be on the streets, forever, or bonded to somebody in servitude…? that’s what the state does to people it wants to ‘get’, doubt there is anything legal about any of it.

        and what you just said IS a hate crime, bigoted moron bully boys enabled by the state…

      2. More interesting and disturbing is that there doesn’t seem to be an equivalent, draconian, approach to left wing activists, never mind speakers.

        Especially when any trouble at even “extreme far right wing Fascist Nazi” talks or walks seems to come from “anti” fascist groups.

        People seem to have forgotten, if they ever knew in the first place, that our worst terrorist attackers were the various factions and splinter groups (as is typical of the Left) of the IRA.

        Those who think they were a religious group need to check if the Pope is a Catholic:

        IRA/Sinn Fein support same sex marriage, and a woman’s right to choose.

        Doesn’t sound very Catholic to me!

    2. you own a screwdriver, or they just say you do, whoever they are….you can be done for breaking into and stealing cars now and has been happening for over a decade….

  4. Macpherson should be jailed for claiming to be Chief of Clan Macpherson, a hate crime against all Lowlanders. He could usefully also be jailed for producing such a stupid report. How is anyone to have any faith in inquiries when such a well publicised one turns out to be so dud?

  5. The Met is wholly wrong to be so careless with its ‘e-z guide to the law’ and I think you do well to expose that. I think the damage done here – at a time when freedom of expression is under such strain – is itself akin to an aggrivstion. This is no mere PR exercise, this is a source of information, publicly funded, that thr public ought to be able to rely upon and in all likelyhood some will (have) rely(ied) on. Therefore it comes close to meeting an assesment of creating liability itself, for detrimental reliance. It is shameful, misleading and hugely irresponsible (especially at this time). So thanks for addressing the matter.

    On an aside, in Scots Criminal Law (my own area) the ‘doctrine of temporary appropriation’ would undermine your example of taking money from a purse. Even the intention (and actus) to temporarily deprive the lawful owner of his effects, is likely an offence. Just FYI.

    1. I’ve been ruminating on the idea that (in England & Wales) an intention to repay the exact amount of money taken, but not the actual notes, stops it being theft. Surely it would stop it being theft of the value of the money? At most it would be theft of the paper, the value of which is negligible anyway. Perhaps there’s some authority on it but I haven’t looked.

      1. presumably therefore u wd have the same ‘legal opinion’ if somebody stole your car? or your house? or your dog….? what about things like rape….’oh i decided to get consent after the fact’, does that legally make it ok….?

        if you take something without permission….that is what the word theft means, surely? never mind your legal mumbo jumbo on it….

  6. I guess this goes back to the first comment which I think is just basically wrong. Money is fungible so one £20 note can be replaced by another, even two £10s: that is what happens when you deposit money in a bank and later withdraw it.

    The wording is unclear but I am not sure it goes as far as implying separate offences, Maybe a change to, “It means the offender can be charged for the crime itself and also their reasons for doing it may lead to a more serious charge instead or a more severe punishment.”

    Not sure what proof is needed to make it a hate crime. Maybe a burglar targets Indian families because they have more jewellery: not motivated by hate of Indians at all. And random third parties can influence this?

      1. When I was in articles the senior partner said that juniors of fewer than five years’ call were fungible. He also said that you found good barristers where you find bad barristers: in the dictionary between Bankrupts and Bastards.

  7. Job well done, Matthew. I admire your patience, but fear you must feel sometimes that
    “against stupidity, the gods themselves struggle in vain” (Goethe)

  8. The following example would seem to be a very clear case of doing something which is by no means illegal, but for reasons of racialist hate, : a woman who is a racist and hates all Pakistanis simply because of their race, refuses to consent to have sexual relations with a Pakistani man and her refusal is solely because of his racial background. If sexual relations then take place, she has been raped, but she has also committed a hate crime. What would the courts say to this? Please don’t address the question: how could it ever be proved that the only reason for her refusing consent was her racialist hatred. Please only address the question: is the woman actually committing a crime in this case?

      1. Could you expand a little on this “No”? Do you mean to say that it is simply inconceivable or impossible for a woman to withhold consent purely for reasons of racial hatred, and that there will in fact always be additional reasons for her withholding and that amongst these additional reasons there will always be the main, or effective, reason? Or, do you mean to say that whereas it is quite possible for racial hatred to be the woman’s sole reason for refusing consent, in such a case her right to defend herself against unwanted sexual relations, or her right to just say no for whatever reason, sort of overrides her obligation to avoid hate crime? I am well aware that in practice a woman who did refuse consent solely for reasons of racial hatred could easily and irrefutably find some other more legitimate reason for denying her consent, and then claim that THAT had been her chief reason. But what would then happen, if the male rapist claimed that he FELT that her denial of consent was due solely to her racial hatred of his race? And what would happen, if the woman freely admitted that racial hatred had been her sole reason for refusing consent?

          1. As absurd as being prosecuted for revving a temperamental TVR engine in a racist manner?!

            I suspect the absurdity stems from the fact it clearly would be held to be a hate crime.

            What could be more “racist” than refusing to consent to sex on racial grounds?!

          2. I don’t see the absurdity of the point as there were very young girls who thought they couldn’t say no, because they would be accused of racism. Perhaps you need to study the subject of “grooming gangs”.

      2. What about the porn actress who killed herself because of the abuse she got for refusing to have sex with bisexual actors (because of the higher risk of AIDSy?

        Where does she lie on the “liberal” hate crime continuum?!

    1. Pakistani is not a “race.” It’s a nationality. And if by “Pakistani” you actually mean “Muslim”–well, that’s not a race, either–despite constant attempts by the Left and mainstream media in the US and Europe to make it so.

      1. Yes, we all know that Pakistani is not a “race” and neither is “Muslim”.

        The question is, as politicians, the Left, “liberals” and mainstream media in the US and Europe constantly try to make it a subjective thought crime to do anything that anyone might chose to “call out” as “othering” of any nationality (other than “English” – and I’m not!), race (other than “white British), or religion (other than Christian), what is the answer to Paul Rubert’s question.

  9. “If someone does something that isn’t a criminal offence but the victim, or anyone else, believes it was motivated by prejudice or hate, we would class this as a ‘hate incident’. Though what the perpetrator has done may not be against the law, their reasons for doing it are. This means it may be possible to charge them with an offence.”

    Perhaps Tommy Robinson should demand the police arrest themselves for every incident when they arrested him where he believes it was motivated by prejudice or hate against him?!

    1. But he does not belong to a favoured group, so it is impossible to commit a hate crime against him. I think you know this.

  10. um all very interesting but it still seems to me that you and people here are still confusing the words criminal and illegal…..they mean different things, that is why there are two different words.

    and as far as hate crime goes…what about political motivation? you seem to have missed that one out…like what has been done to me (rape, torture, attempted murder, thefts, beatings etc.) motivated by political reasons, undoubtedly by agents of the state for, essentially, advocating the prosecution of those who commit said crimes regardless of hair colour, religion or who their employer happens to be…

      1. seriously? illegal basically just means that parliament has passed a law to make something no longer legal. for example, it used to be legal to murder people….under parliament passed a law making it illegal.

        Criminal is open to interpretation, a person’s perception…..for example I consider it a very serious crime to go around raping people with cameras, selling said footage to TV companies for entertainment, for your neighbour or anybody else to put you and your property under 24/7 surveillance….to go around breaking into people’s home, violently abduct people and do thousands of pounds worth of criminal damage….then sell your victims personal data to your mate’s via ~ACPO who then come around and do thousands pounds more damage….I suspect that these crimes are still illegal (although some of these have been legalised via contradictory laws such as RIPA) but in effect these things have become legal regardless as the perps are never identified or prosecuted. same with murdering, raping and torturing people…i.e. job requirements of the sorry excuse for a police farce we have in this country. they ceased being a police force approx. quarter century ago when doing these things became a job requirement, they’ve just been another criminal gang since then…

        slavery is a crime and also illegal? BUT you can get around this with euphemisms like unpaid trial shifts or that so called ‘New Deal’ thing where you are forced to work for the state under threat of death for ‘free’…..I know these are hardly the best examples but point remains a lot of crimes have been legalised by this state and vice versa there are plenty of things that aren’t crimes have been made illegal, so called drug ‘policy’ being the most blatant example.

        unfortunately, having these kinds of conversations gets you ass raped in mental prisons in this cuntry these days and it’s been that way for over a decade now. + a lot worse than that….

  11. Hmm. I’ve heard anecdotal evidence of something akin to ‘thought crime’ evolving in case law, and do correct me if you know otherwise. It pertains to possession of images of minors. The two terms that are relevant are ‘indecent’ (stemming from legislation) and ‘erotic posing’ (stemming from case law). Both of these terms refer to properties of the images themselves. However, the anecdotal evidence I’ve heard is that law enforcement, the CPS and judges are increasingly looking to context (by which I mean presumed viewer response) when deciding whether an image is indecent or erotic.

    For instance, a photo of a bikini-clad minor may not be indecent in any way and may not involve erotic posing, but if 10,000 such images are found on a man’s hard drive, then the presumption would be that these images are titillating to that particular man. Alternatively, consider a guy with a foot fetish who has downloaded hundreds of YouTube videos or underage girls who happen to be barefoot. Etc. We then enter territory where someone could be prosecuted (and convicted?) based not on properties of the images/videos themselves (the actus reus component) but on what’s presumed to be going on inside the defendant’s head (the mens rea component).

    1. You seem to misunderstand. You get prosecuted for possession of such images because your demand creates a market for them and that causes others to commit crimes to pander to that market. So while a picture of an under age girl in a bikini might be taken for entirely innocent reasons it might also be taken for reasons of titillation. Ditto the foot pictures.

      They may also be stills from series which evolve into highly illegal territory and that can be proven in court. Even if you as possessor of those images are ignorant of the context you have a responsibility wrt images of minors you have no valid relationship with.

      I have some pictures of a wee boy on my phone, he refers to me as ‘Uncle’ despite being no relation (hangover from the family dog). These are valid pictures and none are obscene or close to it and the kid is in absolutely no danger of abuse of any sort away from the rugby field or the judo mat by other children. A check with his mother would confirm that. I have more pictures of the dog.

      Such a person in possession of dozens to hundreds of pictures of under age children of no relation or not known to him/her has no such defence. Simple possession is thus prima facie evidence of a crime.

      1. Actually, you get prosecuted because there is sufficient evidence to suggest you are in breach of the law, and the police/CPS consider it to be in the public interest to pursue the case.

        As I said, the relevant terms are ‘indecent’ and ‘erotic posing’. There is nothing in the legislation that can reasonably be taken to allow motive/reason for possession of an image to trump the inherent qualities of the image itself. And to refer to your ‘stills from a series’ point, neither is there anything in legislation or case law to suggest that images not actually possessed can be prosecuted.

        1. to Andy Meon, who wrote ” There is nothing in the legislation that can reasonably be taken to allow motive/reason for possession of an image to trump the inherent qualities of the image itself” : surely the police/CPS would draw a distinction based on motive and reason between on the one hand some images found on the computer of an investigating officer or social worker or psychologist or other expert appointed to report upon a case, and on the other hand those same images found on the computer of an individual they wish to prosecute? In many cases of course it may not be necessary for the aforementioned experts to download and store anything, but one can imagine situations in which it is necessary: rapidly changing websites, about-to-be-terminated websites, etc.

          1. @paul rubert: That’s a fair point, but is it a fair comparison? In the case of both indecent images and prohibited images, there is the general defence of legitimate reason for possession (section 160[2] of the Criminal Justice Act 1988 and section 64 of the Coroners and Justice Act 2009 respectively). Perhaps I was a little hasty when formulating my last comment, so I’d like to revert to the phrase I used in my original comment: presumed viewer response. Motive/reason for possession is relevant, then, but in the case of investigating officers with a legitimate reason for possession, whether or not they might have found the images titillating during the course of their work, in the privacy of their own heads, is irrelevant.

            I find it concerning that presumed viewer response should have any bearing on the legality of images (if the anecdotal evidence is to be believed). It strikes me as worse than creating a mens rea-only offence, because at least in the case of a mens rea-only offence (read: thought crime) there would be intention to commit a crime. If a paedophile is a decent human being and doesn’t want to view illegal material (perhaps even finds the very idea of it repugnant), and limits his viewing to, say, YouTube videos of girls doing gymnastics in leotards, then there isn’t even a mens rea element of intending to commit an offence, as his intention is to stay firmly on the right side of the (invisible) line in the sand.

            The move towards using presumed viewer response to determine whether an image can be deemed indecent, or the posing therein erotic, thus becomes a move towards penalizing the sexuality, or more broadly, penalizing what may or may not be going on inside someone’s head. I find that a dangerous move, and we shouldn’t be lulled by hysteria into thinking that it will in any way benefit our justice system.

            As an aside, whilst looking up the legitimate defence issue, I found the following text in the CPS guidance on prohibited images:

            ‘Where an individual image is held in a person’s possession as part of a larger series of images, the question of whether it is pornographic must be determined by reference both to the image itself and also the context in which it appears in the larger series of images. For example, a film where one image is taken out of context could be a prohibited image.’

            I stand corrected. But I find this worrying too. The term ‘prohibited images’ refers to ‘non-photographic images (this includes computer generated images, cartoons, manga images and drawings) and therefore specifically excludes indecent photographs, or pseudo-photographs of children, as well as tracings or derivatives of photographs and pseudo-photographs’. It may be the case that some non-indecent images of a cartoon child are featured on an image-sharing website. Those in the know might realize that the images are from a manga film depicting sexual activity with children, and may contact the poster looking to trade material with him, but what of the visitors to the site who don’t know that, and innocently view the images just because they look cute or neatly composed?

            This all reminds me of the criticism of the Sexual Offences Act 2003, as detailed in this article, ‘Teenage kissing: the new sex crime?’ http://news.bbc.co.uk/1/hi/magazine/3672591.stm

            As one of the parties quoted in the article says, ‘it’s astonishing that the government could consider legislation with the prior intent of issuing guidance to countermand it […]. I worry about the message it sends to young people – it seems to say that sometimes the law means what it says and sometimes it doesn’t’. What seems to be happening (insidiously) in the case of indecent and prohibited images is similar: if presumed viewer response becomes the deciding factor, then really any image could be deemed illegal, and we’ll have sleepwalked into a thought police state.

  12. Matthew,
    I wonder if the drafter of the MPS web posting had in mind using the common law breach of the peace powers where no actual crime appeared to have been committed. Obviously this would mean that an officer would have to have been presnt during or immediately after the ‘incident’ while the anxiety still persisted. Since a breach of the peace is not a criminal offence, it fits in with the MPS’s language. As you will be aware the police often rely on the perception that a breach of the peace is about to occur to detain someone when all else fails!

  13. Interestingly, I started a petition on this subject on the 18th March pointing to the exact same quote. Today, the text is entirely different, but the original is on Archive.org . Now it references the text from the Act, which still implies that you can be interviewed for a hate incident (which will be recorded) whether or not you intend anything, and e.g. simply speaking the truth.

    This appalling Marxist monstrosity would have been repealed by a real Conservative government, but in actuality, we have a cultural Marxist oligarchy consisting of a Red and Blue team with identical agendas, pantomiming democracy. Our only, if they can only pull themselves together, is UKIP.

  14. still suspect abducting people is still illegal and under JR law you’re legally obliged to defend yourself or otherwise you’re just as guilty as they are….whoever ‘they’ are….

  15. Crime is crime is crime. It should not be prefaced by “hate”. Either one could argue that all crime has an element of hate in it, as hate is so loosely and widely defined – or rather not defined – or, it is the crime that counts, not the imagined emotion behind it. If it is deliberate, it is a crime. That should be enough. If it can only be defined as a crime by tacking on the word “hate” it is not a crime, and inventing the new category “hate incident” is extremely dangerous and should never have been introduced in a free, law-based country.

  16. Couldn’t there be cases of racially/religiously aggravated harassment where the act is not intrinsically illegal but the context with intention cause the offence to occur?

  17. Thank you Matthew – a brilliantly measured analysis in the finest traditions of the Bar.

    If we ever appoint a gobbledegook Tsar, it should be you.

  18. with Count Dankula’s recent conviction….can we now suspect John Cleese to be prosecuted for goose stepping back in that fawlty towers episode…? it’s been standard practice to change the law and retrospectively start applying it to people for over a decade now…?

  19. Great piece, Matthew, but I fear some things may not be as clear as you’re suggesting here, or as clear as you or I or any sane person might wish.

    Take your notional “BAN ALL IMMIGRATION” sign in the garden. Are we so sure that’s not any kind of crime? Could it not be taken as offensive hate speech?

    Let me put it another way – let’s say your sign said “TRANSWOMEN ARE MEN”. That incites no violence or action of any kind against anyone, merely expresses an opinion (and one heavily backed by every available fact of science and language that we have at our disposal).

    Yet the “Posie Parker” case suggests that even if such a thing is not a crime now, then the police are actively endeavouring to set a precedent which will ensure that in future it is.

    Similarly, the Mark “Count Dankula” Meechan case in Scotland this week shows us that merely hurting people’s feelings or sensitivities now IS a crime. Nobody can possibly imagine that his saying “gas the Jews” to a small dog was actually intended to cause that small dog to go out and commit genocide. (Pugs find breathing hard enough as it is without having to put a gasmask on.)

    The current direction of movement in law – or perhaps more accurately in the police’s *interpretation* of law – certainly seems to be towards a point where even armchair-sitting COULD be deemed criminal if someone (at least if they belong to a “protected” group) chooses to take offence at it, however irrational that offence may be, based on their perception of your intent.

    (Perhaps you were sitting in a posture which put them in mind of the sickle on the flag of the Soviet Union, where their grandfather died in a gulag.)

    Given that offence is entirely subjective and arbitrary and we are unarguably increasingly criminalising the giving of offence, I don’t see how you can in practice say that ANY act, however innocuous, is ever guaranteed not to be criminal.

    I suspect that the Met’s original wording – even though they’ve now changed it – in fact accurately reflected their view and what their approach is likely to be.

  20. to Andy Meon: I completely agree with you about the disturbing implications of making “presumed viewer response” relevant to question whether a crime has been committed. I am not a lawyer, and am less concerned with what the law actually says, than with the general public’s moral reaction or attitude to certain behaviors. In this connection, there is one point concerning the viewing of sexual images of children which is being lost in this discussion: if society really considers this to be a serious crime, then why are exceptions made for anyone at all (such as investigating officers)? If police are chasing someone speeding dangerously on a motorway, we allow the police to break the speed limit themselves. But we would not allow a detective who is investigating a murder, to commit a murder during the course of his investigation: even if it were necessary to do so in order to prove the case, we would probably say that the second murder not justified by the need to solve the first. Now, it seems that we are treating cases of viewing child sexual images more like the not very serious offence of speeding, and less like the serious offence of murder. This is inconsistent with the general public’s attitude of “lock ’em up, castrate them, and throw away the key” to paedophiles.

    A more important factor than presumed viewer enjoyment, I suggest, would be the issue of whether any payment has been made for viewing the images, because it is only this aspect whcih materially benefits the producer of the images. Here again, we would probably excuse an investigator who could only investigate the images by paying for them, even though he would thereby reward and reinforce the criminal actions of the producer of the images every bit as much as if he enjoyed viewing them.

    1. You raise some interesting points, though I’m not convinced that the murder detective scenario is sufficiently analogous, as I can’t see any circumstances in which a law enforcement officer would be required to commit murder in order to ‘prove the case’. It’s worth noting that some law enforcement officers are authorized to bear and use firearms, and even use lethal force in the line of duty if absolutely necessary and in accordance with strict professional guidelines. Note also that police officers breaking the speed limit in the line of their duties is also something done in accordance with strict guidelines.

      In the case of illegal images, it’s currently impossible for a case to be investigated and successfully prosecuted without a human being examining the evidence. That may be different in the future, what with technological developments, but for now I think that the legitimate defence is necessary. Here too strict guidelines apply. If an investigating officer were to transfer images to a laptop or storage medium and take this home with him, he could end up being charged with the same offence he’s investigating. Investigating officers aren’t given carte blanche, in other words.

      I’m in two minds about the fact that the Internet Watch Foundation was given legal permission to actively search for illegal images a few years ago (rather than simply wait for and then respond to reports). I can see pros and cons of that.

      One thing that disturbs me is that some of the scholarly literature on this subject (Michael Seto and others) suggests both that almost all illegal images are free (traded on image-sharing websites) and that around 90% of the illegal images out there are pre-existing images ones recirculated by the FBI to ‘fish’ for miscreants. I recall a case where (Australian?) officers took over a site and continued to operate it for a month to catch as many people as possible. There is a rather platitudinous argument that every instance of viewing an illegal image causes further harm to the victim portrayed. If that’s true, then I find the FBI’s fishing activities unethical, and the ‘continued site operation’ activities… well, again, pros and cons. However, I don’t buy the argument; the only way it causes further harm is if the victim is informed. When reading the following press release from the Internet Watch Foundation, I found myself thinking ‘stop sending the brown envelopes’. Victims should at least be able to opt out of receiving notifications every time an image featuring them is found on yet another miscreant’s computer.

      https://www.iwf.org.uk/news/how-iwf-helps-victims-and-makes-internet-a-safer-place

      One disturbing development in the US is the fact that those found guilty of viewing illegal images are being required to pay the victim portrayed the same level of financial compensation as the person who originally abused and photographed/filmed them. The case of Mark Salling (the actor who committed suicide in January) springs to mind. Combined with their love of consecutive (rather than concurrent) sentences, I think the Americans have now reached a position where abusing a real child may well get you a significantly lesser sentence than viewing illegal images. I find that simply staggering! John Grisham sensibly spoke out on that matter a few years ago, but was forced to retract his statements in the face of hysterical backlash.

    1. The quran contains many verses which clearly incite hate and violence. And countless examples around the world of it continuing to do so. If they were really in the business of banning “hate crime”, they would criminalise the promotion of the quran. But they don’t in the slightest. Because “hate crime” is really a euphemism for persecution of dissidents. They would hardly have something named a “dissident crime” law would they?

      1. they use mental prime directive on us to 🙁 that one allows them to bypass the legal system in it’s entirety….that’s the point of it!

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