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.
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.