RESPONSE TO CPS POLICY STATEMENT ON PROSECUTION OF OFFENCES INVOLVING HOSTILITY ON THE GROUNDS OF SEXUAL ORIENTATION AND GENDER IDENTITY

Resist draconian policy position on 'hate crime'

 

RESPONSE TO CPS POLICY STATEMENT ON PROSECUTION OF OFFENCES INVOLVING HOSTILITY ON THE GROUNDS OF SEXUAL ORIENTATION AND GENDER IDENTITY

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RESPONSE TO CPS POLICY STATEMENT ON PROSECUTION OF OFFENCES INVOLVING HOSTILITY ON THE GROUNDS OF SEXUAL ORIENTATION AND GENDER IDENTITY

The Crown Prosecution Service (CPS) has issued a public consultation on its policy regarding 'homophobic and transphobic hate crime'.

Unfortunately, whatever the intent of this policy, it undermines the principle that we should all be treated equally before the law regardless of age, sex, race, religion etc, and severely limits freedom. It could have a draconian effect on anyone who is critical of transgender ideology or of the concept of same-sex marriage or even Lesbian, Gay, Bisexual and Transgender (LGBT) ideology in general. In practice, this kind of policy is likely to target Christians and others who are most outspoken about these things.

Their policy can be read HERE and our response to the questions in this consultation can be read on the right of this page.

The deadline for this consultation is 9th January so sign now.

The Policy states:

• “Stirring up hatred in this context is committed when someone says or does something which is threatening, abusive or insulting and the person either intends to stir up hatred on the grounds of sexual orientation, or makes it likely that such hatred will be stirred up.”
• “We accept that many suspects act in an opportunistic way. Hate crime is not always considered or methodical, although such offences certainly exist. Derogatory language and disrespect towards personal characteristics can be hurtful and unsettling but often incidental.”
• “[The CPS aim to w]ork closely with the police, criminal justice agencies and community stakeholders to continuously refresh our understanding of homophobic, biphobic and transphobic crime”

1. As can be seen, “crimes of stirring up hatred” could amount to saying or doing something which is perceived by the victim to be “insulting”. But obviously there are all kinds of things that we might find insulting.

Saying “I believe marriage exists only between one man and one woman so long as both people live” might insult not only some who endorse LGBT ideology, but also people who are divorced.

Saying, “I believe it is dangerous and immoral to endorse a child’s gender confusion” might insult people who support transgender ideology or parents who do endorse their child’s gender confusion.

The point is though, that both of these, at least as far as the person who says them and certainly from a Christian perspective, are true, and it is utterly wrong for an individual to be punished for believing and saying these things.

2. As well as having a serious negative effect of the freedom of speech and conscience of individuals, this policy further undermines any notion of equality before the law. Rather, because some people fall into special protected groups, in this case, people who experience other than heterosexual sexual attraction and people who identify as transgender, the law treats them differently. It appears that whilst it is perfectly lawful to make off-colour jokes about Christians, for example, it might not be lawful to make similar jokes about person who experience same-sex attraction or persons who identify as transgender.

It is not the case that I or anyone else who is reading this wants to make jokes about these groups of people, but rather the law should not have any special protections regarding who can and cannot be mocked.

3. Mainstreaming the idea that the moral opposition to same-sex attraction or gender ideology is hateful and therefore criminal, further limits the freedom of parents to bring their children up in conformity with their own beliefs, religious or otherwise. Where children experience gender confusion, for example, parents might be placed under increased pressure to affirm their child’s ‘new’ gender – even though this conflicts with the child’s biological sex, the parents’ beliefs, and research showing that up to 98% of gender confused boys and 88% of gender confused girls accept their gender after naturally passng through puberty.

If moral opposition to gender ideology is a hate crime, why should the state let parents continue to “hate” (and therefore presumably, “abuse”) their own children?

4. The idea that what counts as homophobic, biphobic and transphobic hate crime will be “continuously refreshed” is alarming as it not only suggests that what is not a hate crime today could be considered a hate crime tomorrow, but also that the public will not know whether what they’re saying constitutes a hate crime until after they’ve said it. After all, how will they know what has been removed from the realm of state approved discourse or the ever shrinking lists of things which are inoffensive?

In short, the terminology used throughout this policy as well as the concepts it employs are so vague and ill thought-out, that they pose a serious threat to the freedom of speech, freedom of conscience, freedom of family from (unnecessary) state intrusion and the freedom of religion.

The deadline for the consultation is 9th January. This issue effects all of us. If you are a Christian, Muslim, Jew, Atheist, Humanist, or respect freedom and wish to limit the power of the judiciary, make sure you sign and share this urgent petition.

We are grateful to Christian Concern for their excellent legal analysis.

http://www.cps.gov.uk/consultations/hate_crime_ht_consultation_2016.html

http://www.acpeds.org/the-college-speaks/position-statements/gender-ideo...

http://www.christianconcern.com/respond-to-cps-consultation-on-hate-crim...

http://www.christianconcern.com/

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RESPONSE TO CPS POLICY STATEMENT ON PROSECUTION OF OFFENCES INVOLVING HOSTILITY ON GROUNDS OF SEXUAL ORIENTATION/GENDER IDENTITY

1. Does the section on “CPS policy” address the key issues in prosecuting homophobic, biphobic and transphobic crime?

This is not something with which the CPS should concern itself. The law exists to police actions not thoughts or ideology.

• The CPS’s approach is overly limiting and essentially removes the concept of equality before the law as it effectively privileges those with protected characteristics over those without.

• The ‘CPS Policy’ to “continually refresh our understanding of homophobic, biphobic and transphobic crime” is extremely careless and even dangerous. Will the public be ‘continually updated’ on what counts as a homophobic, biphobic or transphobic crime before the fact or will the unfortunate perpetrator have to wait until after he’s been to court to know that what he said is now recognised as a hate crime even though it wasn’t only a few years ago?

2. Does the section on “Crimes involving hostility towards sexual orientation and gender identity” clearly set out the key definitions and law relevant to the prosecution of these crimes?

The section on “Crimes involving hostility towards sexual orientation and gender identity” does not clearly set out the key definitions and law relevant to the prosecution of these crimes.

It is nothing short of a legal and moral mess.

It is necessary that the law is exercised within a constraining framework of well established public norms, rather than in an arbitrary, ad hoc, or purely discretionary manner based on a law enforcer’s own preferences or ideology. In order for this to be the case, each law must be formulated with sufficient precision to enable the individual to understand the remit of the law, to regulate his conduct accordingly, and to be protected from arbitrary state interference.

This was affirmed by the court in Hasan and Chaush v Bulgaria (2002) 34 EHRR 55: “For domestic law to meet these requirements [that is, of accessibility and foreseeability] it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise.”

And confirmed by Lord Hope in Purdy v DPP [2009]: “The word “law”…implies qualitative requirements, including those of accessibility and foreseeability. Accessibility means that an individual must know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it what acts and omissions will make him criminally liable…The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail.”

It is clear that the CPS’ policy falls short of these requirements.

The CPS fail to acknowledge what constitutes ‘stirring up hatred’. Words such as ‘threatening’, ‘abusive’ and ‘insulting’ are said to amount to ‘stirring up hatred’, yet there is no indication of when an individual’s conduct will reach this level. Furthermore such a reading goes against decades of case-law which protects expression which is said to be shocking, offensive and disturbing. Precisely stated, the concepts are not defined clearly, and no examples are provided to indicate what amounts to ‘threatening’, ‘abusive’ or ‘insulting’ behaviour. Indeed, the word ‘insulting’ was removed from the public Order Act 1986 because of the inability of the Police to apply the law sensibly on 1st February 2014.

The law thus fails the foreseeability test, as it is unclear what conduct will incur criminal liability.

The explanation also fails to indicate who judges whether the message is ‘threatening’, ‘abusive’, or ‘insulting’ – the victim, or an objective observer. These definitional problems render the law arbitrary and less predictable, and they pave the way for unfettered, coercive power to be exercised to restrict the individual’s freedom of expression.

In short, what many people believe are statements of truth e.g. same-sex marriage is not marriage or that it is dangerous and unfair to endorse a child’s gender confusion, could indeed be thought “insulting” or “abusive” to any number of people. The CPS is greatly overstepping its remit in this respect as it makes the law not only inapplicable but may also have a serious deleterious effect on the freedom of speech.

3. Does the section on “Communities affected by hate crime” clearly set out the CPS understanding of the individuals and communities affected?

Yes it does but this is not so important. Rather, by focusing heavily on prosecuting ‘homophobic, biphobic and transphobic’ hate crime, the CPS fail to acknowledge the detrimental incursion on vital freedoms, as well as the interests of numerous societal groups.

For example, free speech is vitally important, as it is an expression of the equality and dignity given to all people. Yet by undermining the importance placed on freedom of speech, the CPS’s policy is likely to oppress Christians in particular and, more generally, those who would reject current liberal orthodoxies surrounding debates about, for example, same-sex marriage and transgender ideology. It would further disadvantage Christians working in the public square. The comments made by Magistrate Richard Page, for example, who expressed the view during a closed-door consultation with colleagues that his legal duty to act in the best interests of the child meant that he could not agree with placing the child with a same-sex couple, would likely render him guilty under hate crime laws. The conclusion is that the law is protecting a right not to be offended by the refusal of services. This is both a denial of individual freedom and against the public interest.

Prosecuting “homophobic” and “transphobic” “hate crime” would also further the development of ‘equality and diversity’ codes by governing bodies, which would narrow the space in which person who dissent from this ideology can express their beliefs. This would, for example, lead to vocal Christians being barred from entering various professions, and thus act as an assault on morality and private conscience.

This is problematic in a democracy, as true democratic freedom demands individual freedom, and citizens cannot be truly free if they are not able to live according to their beliefs of what is most important. Religious freedom is a barometer of the health of a nation’s democratic wellbeing. In a proper democracy, in general, religious beliefs should be respected and accommodated, not because the state gives its assent to these views, but because its citizens are naturally imbued with the fundamental freedom to live out their religious beliefs.

Religious freedom is not a right to be acknowledged only when all other rights have been met. Such a rendering would make freedom of religion meaningless. Forcing people of faith to acquiesce under the penalty of the law, for example, to the wishes of someone who self-identifies as being transgender is an abuse of freedom of conscience. An individual’s request to be known by a different name, or to use shared facilities, for example, requires Christians to deny that gender is irrevocably determined by creation and evidenced by a person’s biology. Where persons are faced with either
recognising an individual as belonging to a gender other than their birth sex, or face a hate crime conviction, their freedom of thought, conscience and/or religion is invaded. Thus, prosecuting transphobic hate crime opens the door to abusing freedom of conscience, which itself is protected under Article 9 ECHR.

Being expected to act contrary to one’s conscience, and the subsequent risk to or loss of livelihood for those feeling unable to comply, are no light matters. To treat public life and private life as mutually exclusive is tantamount to asking all serious moral persons, and in particular, practising Christians, to only be true to their intrinsic identity and values inside their homes, and to repress, conceal or be ashamed about their identity and its manifestation in public - a prospect at serious odds with a pluralist democracy extolling tolerance and the competing voices of diversity.

4. Does the section on “Offending Behaviour” clearly set out the CPS understanding of offending behaviour?

No.

Of particular concern is the phrase: “In general, we believe it is more important to prosecute the perpetrator of a more serious crime than someone who may have committed a more minor crime where the former is connected to the latter. This is not a commitment to allow people to commit crime with impunity; it is an undertaking to prosecute serious crime effectively wherever we can, even if that means that those who commit minor criminal acts are not put before the courts.”

This is a policy statement made in advance - absent a specific factual matrix - not to enforce the law where the Police self-determine the offence as established by Parliament is ‘minor’. It stands in conflict with established case law, most notably Lord Denning’s assertion in R v Metropolitan Commissioner, ex parte Blackburn. In that case, the Commissioner had issued a confidential instruction to the police force to the effect that prosecutions of gaming clubs operating in breach of the Betting, Gaming and Lotteries Act 1963 (U.K.) would require his approval.

On the duty of the Commissioner of Police, Lord Denning M.R. said stated: “…He [the Commissioner of Police] is not subject to the orders of the Secretary of State…I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself...The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."

Further the policy says: "Hate crime is not always calculated or methodical, although such offences certainly exist. Derogatory language and disrespect for personal characteristics can be hurtful and unsettling but often incidental. Despite what may be perceived as the low-level nature of such offending, the impact will often be significant and victims need recognition of the harm caused."

This implies that 'off colour' jokes are instances of hate crime. It is not for the judiciary to monitor humour or set the bounds of acceptable comedy.

5. Do you have any further comments on the CPS Policy on offences involving hostility on the grounds of sexual orientation and gender identity?

This policy makes a mockery of the CPS and shows a deep intolerance and authoritarianism in regards to those who have different beliefs regarding LGBT ideology.

In recent years, there have been a growing number of cases in which Social Services have interfered in the lives of loving and respectable families by taking their children into care.

With this in mind, it is likely that the CPS’ policy, by mainstreaming the idea that the moral opposition to same-sex attraction or gender ideology is hateful and therefore criminal, would further limit the freedom of parents to bring their children up inconformity with their own religious beliefs. Where children experience gender confusion, for example, parents might be placed under increased pressure to affirm their child’s ‘new’ gender – even though this conflicts with the child’s biological sex, the parents’ beliefs, and research showing that 98%% of gender confused boys and 88% of gender confused girls stop experiencing gender confusion after naturally passing through puberty. In fact, we see this phenomenon already beginning to manifest because of the social manipulation of equality legislation in the United Kingdom. The criminalisation of specific “hate crimes” based on gender reassignment and sexual orientation would only further delegitimize parental rights in raising their children according to their own religious and moral beliefs. This in turn would only bolster the possibility of intrusive Social Service intervention into family life.

Another issue of concern is the lack of protection offered to both women and children by giving legal effect to the term ‘gender identity’. The current understanding of ‘gender identity’ as being a fluid concept allows an individual to be identified as their chosen gender without safeguards being set in place protecting individuals in such intimate settings as toilet facilities or public changerooms. In this sense, rather than protecting the rights of individuals, by giving effect to ‘gender identity’ theory, the law potentially victimizes individuals by putting at risk their privacy, their physical and sexual integrity, and protection of their health and morals. This is an untenable position and must be rejected.

There are also numerous cases in which Christian street preachers have been prosecuted for alleged hate crimes, though have later been acquitted. This illustrates that the prosecuting authorities often misapply the law. I offer you the following for your consideration.

Mike Overd:
March 2015 – Street evangelist, Mike Overd, was convicted of a public order offence for referring to Leviticus chapter 20 during a conversation with a homosexual man, to explain that God does not condone homosexual practice. Mike’s appeal was upheld, with the
Circuit Judge David Ticehurst saying that the Crown failed to provide sufficient evidence to justify the conviction.

February 2012 – Mike was charged under Section 5 of the Public Order Act 1986 after a same-sex couple complained about his preaching on homosexual practice. A Magistrates’ Court found in favour of Mike and passed a ‘Not Guilty’ verdict on the basis that he did not intend to cause harassment, alarm or distress.

Rob Hughes:
May 2015 - Rob was arrested for allegedly breaching public order law after a confrontation with a member of the public who wrongly accused him of using “homophobic” language. He was released after being held in custody for 11 hours, with the police acknowledging that he had been wrongly arrested and falsely imprisoned.

Tony Miano:
January 2014 - A former Los Angeles Deputy Sheriff was arrested on a charge of alleged breach of peace with “homophobic” aggravation whilst preaching on Dundee High Street. He had mentioned sexual sin - including adultery, promiscuity and homosexual practice. All charges were subsequently dropped, as nothing in his preaching constituted ‘hate speech’.

Anthony Rollins:
December 2010 - Antony was arrested under Section 5 POA and put in handcuffs after street preaching in Birmingham because a bystander complained that he read out a Bible passage on homosexuality. Police were later ordered to pay him £4,250 in compensation.

Dale Mcalpine:
May 2010 - Dale was arrested and charged under Section 5 after telling a police officer that homosexual acts were sinful. Mr Mcalpine later won £7,000 plus costs from Cumbria Police in settlement for a claim of wrongful arrest, unlawful imprisonment and breach of his human rights.

Miguel Hayworth:
August 2009 – Miguel was questioned and detained by police in Kent after preaching from a passage in the Bible that states that homosexual behaviour is sinful. He was later released, allowed to continue preaching and offered compensation for false imprisonment. There are other instances in which Christians have lost their jobs after making comments which may be considered ‘hateful’, though the courts have later ruled in their favour.

Victoria Allen:
November 2016 – A teaching assistant was disciplined by her employer after expressing her Christian beliefs about same-sex relationships, in response to questions asked by a pupil. The matter was settled out of court, with the school accepting that every individual has the freedom to express their views about the nature of marriage in accordance with the law. They sincerely apologised for any upset Victoria may have felt during the disciplinary process.

Sarah Mbuyi:
June 2015 - A Christian nursery worker was dismissed after explaining her Christian view of marriage in response to a question from a homosexual colleague. The Watford Employment Tribunal found unanimously that Sarah had been directly discriminated against based on her belief that homosexual practice is contrary to the Bible. Sarah’s belief was described by the Tribunal as one which is “worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.”

Margaret Jones:
August 2014 – A Senior Deputy Registrar at Bedford register office was dismissed after she indicated that her Christian beliefs prevented her from performing same-sex weddings in light of the passage of the Marriage (Same Sex Couples) Act 2013. Margaret’s dismissal was unanimously reversed by a panel of Central Bedfordshire Council Members. The panel decided that the council had not fully investigated ways of accommodating Margaret’s beliefs.

Sincerely,
[Your Name]

RESPONSE TO CPS POLICY STATEMENT ON PROSECUTION OF OFFENCES INVOLVING HOSTILITY ON THE GROUNDS OF SEXUAL ORIENTATION AND GENDER IDENTITY

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