Designating Hate: New Policy Responses to Stop Hate Crime

Hate crime is rising in the UK and worldwide. The UK has seen a 17 per cent rise (2017-18) in hate incidents overall, while religiously motivated hate soared over 40 per cent. British Muslims are bearing the brunt of this rise: despite representing eight per cent of the UK’s religious population, they suffer 52 per cent of religious hate.

The UK has become increasingly permissive to public hate:

• Divisive groups – especially increasingly mainstreamed far-right groups – spread hatred with relative impunity because responses to nonviolent extremism remain uncoordinated;

• Hate incidents spike around major events, leaving communities exposed; and

• Perpetrators of religious hate are rarely prosecuted due to gaps in legislation.

This report highlights the policy responses government should take to tackle hate crime in the UK.

The Problem: Groups that spread hate function with impunity

Government and public bodies have recognised the dangerous nature of hateful groups, including on the far right like Britain First and Generation Identity. But current laws are unable to stop groups that spread hate and division, but do not advocate violence.  

The Solution:

• Create a new law to designate ‘hate groups’. This new tier of hate group designation would be the first of its kind in Europe and would help tackle nonviolent extremist groups that demonise specific groups on the basis of their race, religious, gender, nationality or sexuality.^[_]  The new designation would sit alongside proscription but not be linked to violence or terrorism, while related offences would be civil not criminal. Unlike proscription, hate designation would be time-limited and automatically reviewed, conditioned on visible reform of the group. Powers to designate would, like proscription powers, fall under the Home Office’s remit and require ministerial sign off. Under designation, hate groups would be limited from appearing on media outlets or engaging with public institutions.

The Problem: Hate surges around major events

A steady growth in hate crime has been driven by surges around major events. Often this begins online. Around the 2017 terror attacks in the UK, hate incidents online increased by almost 1,000 per cent, from 4,000 to over 37,500 daily. In the 48-hour period after an event, hate begins to flow offline.^[_]

The Solution:

• Earmark contingency funds to protect communities around major events. Government reacted well to the threats faced by UK Muslims following the Christchurch (New Zealand) terror attack. But hate incidents still took place. A broader fund should increase protections in all public spaces after events, not just minority-specific locations such as places of worship. Access is vital to integration and hate should not be allowed to prevent people from going anywhere.

• Develop an emergency response to online hate after flashpoints, alongside tech companies. The UK government should work with tech companies to develop a consensus response to emergency situations. This could include joint mechanisms for faster content removal or de-prioritisation of problematic content via an additional set of emergency algorithms to nip online hate in the bud before it spills offline. However, any measures taken would need to establish consensus on the trade-off between the security of users and citizens, versus restrictions on free speech. A new or existing government body could be authorised to deem an event major, requiring a more precautionary approach from companies for a set  period (for example 48 hours) following an incident. This time-limited inoculation method would prevent the need for broader and potentially less democratic blocks, like the one implemented by the Sri Lankan government in the wake of the April 2019 bombings. International initiatives like the Christchurch Call in May 2019 have already highlighted the need for coordinated approaches to eliminate terrorist and violent extremist content online; an initiative to stop hate online would be a welcome next step as part of the Online Harms White Paper process in the UK.

The Problem: Religious hate is hard to prosecute

Hate crime legislation is designed to punish those that seek to divide us. But currently, the lack of prosecutions and justice for perpetrators does nothing to deter hate, or prove government’s commitment to a cohesive society. This is particularly acute for religious hate, where only two per cent of incidents are successfully prosecuted. Legislation does not allow intersectionality to be recorded^[_], exacerbating the disparity between religious and racial hate. This exposes poor data collection but also risks underplaying religious identity, making people feel it is less important than racial characteristics.

New Labour tried to equalise protections against religious hatred but was rebuffed by the House of Lords due to concerns about free speech. The Lords objections led to a higher evidence bar and narrower criteria for prosecuting religious as opposed to racial hate.

The Solution:

• Clearly define terms related to hate crime in law, including hatred and hostility, to bring equal protection. Currently wide definitions in the Racial and Religious Hatred Act 2006, and Public Order Act (1986), give a high and varied evidence bar. Language should be consistent, with the same phrasing for religious, racial and other forms of hatred. The UK government should share these new definitions through the Organization for Security and Coordination in Europe (OSCE), supporting efforts to tackle an international phenomenon.

• Review the impact of offline harms. The recent Online Harms White Paper is welcome, but the biggest rise in hate crime has been offline. We rightly curtail freedom of expression when it is threatening or harmful. But harm is not properly understood, especially the unquantified impacts on chances of professional or personal success. Clear guidance would support the Crown Prosecution Service (CPS) to make the public interest case, and along with definitions, improve both steps of its two-stage test for prosecutions. Better understanding harm will also make it easier for juries by showing how hate intends to marginalise others.

With rising populism, divisive debates around Brexit and a continual terror threat, the UK in 2019 is polarised. Neil Basu, counter terror chief, warned that this polarisation could “lead to a rise in hate crime and a rise in disorder”.^[_] This prediction has sadly been on point. Hate crimes and incidents have steadily risen since 2013, particularly for racially and religiously aggravated offences.^[_]

As the College of Policing states, while not all hate crime is linked to extremism and terrorism, there is a clear overlap between hate and terrorist activity, with terrorist acts mostly motivated by hate.^[_] Not only is hate a threat itself, it can lead to extreme consequences.

Hate crimes are crimes committed against someone due to their disability, gender, race, religion or any other perceived difference.^[_] To be classified as a hate crime, there must be a criminal offence, where there is no criminal offence, acts can still be recorded as hate incidents.

Highly visible incidents of anti-Semitism and Islamophobia in the Labour and Conservative parties demonstrate how permissive the broader political environment in the UK has become to hate. According to monitoring group Tell MAMA, anti-Muslim attacks rose by 26 per cent last year (see figure 2).^[_] Meanwhile anti-Semitic incidents rose for a third consecutive year in 2018, a rise of 16 per cent.^[_]

Figure 18

Religious hate crime in the UK surged by 40 per cent between 2016-17 and 2017-18

Figure 19

Hate crime towards Muslims has risen sharply over the last year and is the biggest driver

This growth is not confined to the UK (see table 1). Anti-Semitism in France is rising dramatically,^[_] and refugees in Germany are 10 times more likely to be victims of hate crime than other citizens.^[_] We have also seen a sharp rise in hate in the US^[_] and Canada.^[_] Anecdotal evidence in New Zealand, where hate crimes are not officially recorded, show an uptick in incidents prior to the Christchurch attack.^[_]

Table 1: The UK is not the only country facing a rise in hate crime, particularly for religion. Data recording in the EU is not always consistent for the motivations behind crimes.

For hate crime laws to work, perpetrators must be held accountable and prosecuted equally across all forms of hate. But currently, the rate of prosecutions does not reflect the increase in incidents.

This lack of justice is apparent at each stage of a hate crime. Statistics from the Crime Survey for England and Wales (CSEW) – a national survey collating police records and surveys to victims – suggests that reporting of hate crimes to the police is also very low and has not improved for the past 12 years, consistently staying at around 50 per cent of the expected level.^[_] Religious hate crime reporting is especially low, and only an estimated 21 per cent of religiously motivated crimes are reported to the police.^{[_] [_]} After receiving a report, the police can refer it to the CPS, which determines if it warrants a criminal offence; only two per cent pass this test to the prosecution stage^[_] (see figure 3 below).

Figure 20

While available estimates suggest that 21 per cent of hate crimes are religiously motivate

The UK government has recognised the growing problem of hate, releasing an Action Plan in 2016 (refreshed in 2018).^[_] One of its aims is to increase reporting. While this is positive, reporting will remain low if victims do not think they will get justice.^[_] Problems in prosecutions remain; 28 per cent of racially and religiously motivated offences closed last year without a suspect even being identified.^[_]

In 2018, the government updated the Action Plan after little progress. Some interventions like the new hate crime awareness campaign are welcome. The push to raise awareness of offences is both a deterrent and can help improve reporting rates. But interventions lack coherence across all the stages of hate crime.  Government needs to take the same attitude to hate crime as its CONTEST strategy does to counter terror: preventing hate crime, protecting the public through better preparations, and pursuing and prosecuting those culpable.

To meet this, government has three options at its disposal:

• Cut hate off at source by implementing new laws to tackle groups that spread hate;

• Prevent the growth of hate crime by better preparing for flashpoints, making communities feel safe wherever they are, online or offline;

• When hate does happen, strengthen existing laws to ensure equal protection for religious and racial characteristics, better protecting British Muslims who bear the brunt of hate in the UK.

Although authorities have expressed concern about the hatred emerging from nonviolent extremist groups, the grey area between counterterrorism and hate crime laws makes it difficult to address them. Some far-right groups have exploited this loophole, despite ad-hoc attempts to curtail them.

In 2018, UK Border Force refused three anti-Islam activists entry to the UK. The activists, including the leader of far-right group Generation Identity (GI), had planned to speak at a rally at Speakers’ Corner as part of a campaign entitled Defend Europe. Reasons for refusal included the distribution of racist materials and potentially violent content in planned speeches, and other actions that threatened UK society. Despite this, the GI leader’s speech was still delivered by UK activists. GI continues to operate across the UK and Europe. Although Facebook banned their main account, local groups still have a presence, while its leader is active on Twitter.

Similarly, in March 2018 far-right group Britain First’s leaders were jailed for religiously aggravated harassment. Sentencing the leaders of Britain First, the prosecutor told the court that “these defendants were not merely exercising their right to free speech but were instead aiming religiously aggravated abuse at innocent members of the public”.^[_] Both leaders have been suspended from social media, along with the main Britain First twitter account. But despite these actions and attempts to proscribe the group,^[_] Britain First is still able to spread its hate via its website, YouTube and on the streets.

Despite acknowledgement from government and ad-hoc interventions, current law has been unable to stop these groups. This is because proscription is a counter-terrorism tool; this rightly gives a high bar to cross, evidenced by clear connection to violent acts. However, this leaves a gap in tackling groups that spread antipathy towards people of different race, religion, gender or nationality, specifically because of these characteristics, and who might inspire others to commit hate crimes via hate speech.  A new law to designate such groups would allow government to tackle hate before it spreads.

Solution

Implement a new law that makes up for the current gap, to designate groups that spread hate

A new law should lay out clear criteria that classifies hate groups. Despite the FBI^[_] and several US NGOs labelling^[_] and monitoring hate groups, no country has built a tool to tackle them.  This would bring unity to ad-hoc approaches that have already been adopted, such as banning Britain First members from joining the police or British Prison Service, or no-platforming at universities.

The government’s previous attempts to implement banning orders for extremist groups struggled with the difficulties of defining nonviolent extremism and understanding its harms.^[_]  Consuming nonviolent extremist or hateful material does not inevitably lead to violence. However, as the judge who sentenced Darren Osborne for the 2017 Finsbury Park terror attack stated, Osborne’s obsessive viewing of videos from Britain First and other anti-Muslim figures had played a part in his desire to attack Muslims.^[_] The government faces the difficult task of recognising the harms that hate groups can cause, even if it is not manifested in violence, without appearing to limit free speech or take draconian measures.

Hate group status would help to bridge this gap. Designation would be related to proscription criteria but focus on the impact of hate, rather than terrorism and violence. This coordination would improve effectiveness through a consistent benchmark for action. For example, hate groups should always be prohibited from processions using Section 13 of the Public Order Act (1986). Unlike proscription, designation could be repealed and conditioned on reform, so groups would have less incentive to go underground and more incentive to improve their behaviour.

The below outlines our proposed mechanism and criteria for designating hate groups, based on existing UK government procedures for proscription. Such a designation could also be used to tackle Islamist groups, like Hizb ut-Tahrir Britain, which has been accused of spreading anti-Semitic and homophobic hate.^{[_] [_]}

Criteria

We define a hate group as:

• Spreading intolerance and antipathy towards people of a different race, religion, gender or nationality, specifically because of these characteristics

• Aligning with extremist ideologies (see Appendix, for examples of far-right and Islamist worldviews), though not inciting violence

• Committing hate crimes or inspiring others to do so via hate speech

• Disproportionately blaming specific groups (based on religion, race, gender or nationality) for broader societal issues

Designation mechanism

Drawing the line between free speech and hatred remains a difficult task for policymakers, but lack of intervention has resulted in greater intolerance in public discourse. Based on existing procedures for proscribing terrorist groups in the UK and mechanisms used by regulatory bodies such as the Charity Commission, we recommend that:

• Designation would sit alongside proscription but not be linked to violence or terrorism

• Powers to designate would, like proscription powers, fall under the Home Office’s remit

• If a group meets the criteria above, the Home Office would serve them with a notice of investigation

• Based on the Home Office investigation, the Secretary of State can consider designation and would bear ultimate responsibility for the decision

• The Secretary of State would inform parliament of a decision to designate through a written statement

• Groups could appeal the decision, which would temporarily suspend the process until review

• The Home Office could appoint an independent oversight committee of non-governmental experts to regulate decisions and ensure transparency, similar to bodies like the Animal Science Committee  

Impact

• Under designation, hate groups would be impeded from appearing on media outlets or engaging with public institutions

• Like proscription, the list of designated hate groups would be publicly available to ensure coordination across institutions

• Related offences would be civil not criminal

• Unlike proscription, hate designation would be time-limited and automatically reviewed, conditioned on visible reform of the group

Hate crime rises around major events. Data from Tell MAMA, Community Security Trust (CST) and the CSEW all show clear spikes of hate crimes around the EU Referendum and the three 2017 terror attacks.^[_]

Figure 21

The number of racially or religiously aggravated offences recorded by the police by month

Spikes are driven by online hate. Analysis by HateLab, a publicly funded research project, found that social media is usually the first forum to react to terror attacks. From a baseline of around 4,000 daily online hate-speech incidents, spikes of 25,000, 37,5000 and 35,000 occurred after the Manchester, London Bridge and Finsbury Park terror attacks.^[_] Online hate can be particularly galling as it intrudes into people’s private, protected space, heightening feelings of vulnerability.

Researchers at the LSE show these events lead to inflated levels of hate crimes against Muslims for up to three weeks.^[_] This is backed up by Tell MAMA’s analysis, which found hate crime begins online in the 48 hours after an event, before spreading offline.^[_] This may be due in part to Islamist-inspired terror attacks attracting more media coverage than other attacks, and for longer.^[_]

After an online spike, hate flows into the public, threatening individuals and institutions. Poor preparation could further entrench withdrawal, impede integration and mask individuality. The UK government reacted well to the Christchurch attack by doubling funding to protect religious spaces in preparation for the inevitable offline growth in hate. The Places of Worship scheme is designed to protect spaces that are home to minorities. But without visible responses communities can be left feeling vulnerable. This strategy does nothing to show that minorities are safe and welcome in all public spaces.

Solution

Develop an emergency response to online hate after flashpoints, alongside tech companies

The Online Harms White Paper is an encouraging first step to prevent harm from hate speech. Our Institute has previously published on the importance of a new approach to regulating internet companies that is fit for the modern world.^[_] Adopting this approach will be vital in preparing for rapid responses to flashpoints and to mitigate the harms caused by surges in online hate.

Government should work with tech companies, using their expertise to inoculate against the harm online hate causes after major incidents. Discussion should begin by identifying a shared goal in tackling flashpoints, starting from a precautionary position that acknowledges the harms of hate. Any measures taken to reduce hate during flashpoints – for example more aggressive content removal or increased downranking for a specified period through additional emergency algorithms – would need to establish consensus on the trade-off between potential harm from hate and restrictions on free speech. It would also need to confront issues of capability, such as detecting and assessing content at scale and speed.

There are already goals for turnaround times. In 2017, half of the violent extremist content on YouTube was removed in two hours.^[_] The European Commission has called for a one-hour removal time for extremist and terror content.^[_]  This paper outlines how to define the grey space of what counts as hatred, particularly against religion, which will further help to clarify how companies should act.

Beyond how tech companies respond is the question of which incidents are significant enough to prompt a change in how content is handled, and for how long. This call is likely to be beyond the core activities of any new tech regulator, and could instead be handled by government’s existing emergency response apparatus or a new government body with powers to deem an incident major. To guard against excessive use of these powers, there could be an automatic time limit (for example 48 hours after an event) and a process to review previous designations. This should explore whether the criteria for designation were correct and followed, and whether compliance or ‘best effort’ was acceptable. Such a joint response could avoid potentially less democratic measures, such as the Sri Lankan government’s blocking of all social media following the April 2019 bombings.

Figure 22

Current and proposed regulation to prevent online harms

When hate moves offline, broaden current governments efforts and reserve funding to visibly protect minorities in all public spaces

While some events are unpredictable, others like elections are known in advance. The government’s “It’s not just offensive. It’s an Offence” campaign is a good place to start.^[_] Around democratic events these campaigns should be expanded and pushed to the forefront. The UK needs to be prepared for an inevitable spike around its proposed departure date from the EU, and elections or a referendum around then.

Government should increase visible policing to help people feel secure. Plans to increase policing to respond to hate surging in the event of a No Deal Brexit need to be replicated for other major incidents.

Legislation around hate crime remains patchy. Prosecutions, especially for religious hate, are challenging because of a high burden of proof, inconsistent legal definitions and poor data collection.^[_] By ensuring prosecutions reflect the rise in incidents, government can prove its commitment to a cohesive society.^[_]

There are several laws to prosecute hate crime. The Crime and Disorder Act (CDA) (1998) covers existing criminal offences like assault or harassment if they are motivated by racial or religious reasons. Because of their divisive motivation, they carry higher sentences than the same non-aggravated offence.^[_] Sections 145 and 146 of the Criminal Justice Act can also increase sentences if motivation by hate can be proven. Incitement to racial hatred is prosecuted under the Public Order Act (POA) 1986, while religious hatred is covered under the same Act as amended by the Racial and Religious Hatred Act 2006.

The CDA gives equivalent language to prosecute for both racially or religiously aggravated offences. In the POA , however, the language for incitement, and therefore burden of proof, is different. This is affecting prosecutions; from 2007 to 2012 there were 42 guilty verdicts for racial incitement to hatred, while there were only nine for religious incitement to hatred.^[_]

In the wake of 9/11, concerned with a spike in hate crime, the Labour government tried to increase protections for religion through the Racial and Religious Hatred Bill (2006) (see table 4). Opponents of the Bill were concerned that the proposal would limit freedom to criticise or joke about religion. In the face of a public campaign, the Lords again watered down clauses, limiting protections to “threatening words or behaviour”. But lawyers warned that free speech provisions in the RRHA were so broad that prosecutors would be deterred from bring forward a case of religious incitement.^[_]

These objections led to difference in defining religious incitement and a high bar of evidence to prove it. Besides the ability to ridicule, insult and abuse, the added need to prove intent and motivation behind an attack is a much higher evidence bar to cross, which is not the case for racial incitement.

To prosecute a crime the CPS has a two-stage test. The first looks to see whether there is enough evidence for both the basic crime (the attack) and the aggravating offence (racial or religious motivation). The second is whether there is public interest in bringing the case forward.

The lack of legal definitions for terms like “hatred” and “hostility” make this first stage difficult. The Lifecycle of a Hate Crime project concluded that “it is not always clear what types of conduct and language will amount to ‘hostility’”.^[_]  Juries are hesitant to label attacks as racially motivated when they might have occurred in the “heat of the moment”, despite the impact and the reasoning for the attack being the same.^[_] This spontaneous nature makes people wary of labelling perpetrators as racists, hindering prosecutions.

Table 5: Without clear definitions of what constitutes threatening words, and the need to prove motivation, the barrier to prosecute using the CPS two-stage test is very high for religious hate crime

Figure 23

Other European countries also struggle to balance free speech and hate

Muslims are the most likely to suffer from this disparity. Given the increased freedom to criticise religion, it is possible the law is being exploited to criticise Islam as a proxy for immigrants or different ethnicities. For example, in 2007 Law Lords ruled that “bloody foreigner” and saying “get back to your own country” could amount to racial abuse. Richard Holt, “saying ‘bloody foreigner’ is ruled racist”, The Telegraph, 28 February 2007, accessed July 2019, https://www.telegraph.co.uk/news/uknews/1544050/Saying-bloody-foreigner-is-ruled-racist.html But far-right activists continue to denigrate Muslims, claiming that they are “invading” the UK and calling for them to “remigrate” [sic] and go back to their own countries. This leaves Muslims in the UK bearing the brunt of hate that should be illegal.

A recent government review highlighted the harms experienced by British Muslims from hate.^[_] Hate crime can drive individuals and groups to normalise fear, adjusting their behaviour to avoid hate. Some research points to the acute vulnerability of Muslim women to harassment, due to the visible nature of some Muslim dress and a perceived weakness of women by attackers.^[_] As Muslims disproportionately suffer from hate, they are more likely to employ safety mechanisms.

Key to understanding anti-Muslim hatred is focusing on the harm it causes people. Hindus, Sikhs and non-Muslims of south Asian origin are often also wrongly targeted with anti-Muslim hatred. This frequent confusion of race and religion dispels any myth that there is no racial element to Islamophobia.

Current debates have focused too much on semantics and not enough on lived experiences. Recognising anti-Muslim hatred is not about restricting free speech, but acknowledging the harm that British Muslims are experiencing. Clear, agreed examples of hate perpetrated against religious minorities (like the IHRA definition of anti-Semitism) that take racial elements into account can help support prosecutions and make the public better aware of tropes. Government recognition of the IHRA definition has not restricted free speech.

Solution

Clarify legal definitions and therefore the conduct that amounts to religious hate crime

It is clear from the disparity in the different rates of racial and religious prosecutions that the law is inconsistent. The current government has tasked the Law Commission with reviewing the adequacy of protection of hate crime legislation.^[_] This will assess whether the law is effective in protecting all groups from hatred. Others have pointed to similar issues for hate against women^[_] or the disabled.^[_] The Commission must see how this review can strengthen laws on religious hatred to reflect and address the increase in incidents.

Laws can be strengthened by defining terms like “hatred”, “hostility” and “grossly offensive”. This would make the evidence bar more consistent but make it clearer to assess the underlying evidence. This should be done with the aim of levelling the playing field for religiously and racially motivated hate. This is clearly supported by a majority of the British public. Sixty-five per cent say government should take stronger action to prevent discrimation on the grounds of faith.^[_]

The UK is not the only country suffering from a rise in hate crime, but recording practices and definitions vary across Europe. Consistent definitions can help tackle an international phenomenon. Government should prioritise sharing its strengthened protections through the OSCE’s Democratic Institutions and Human Rights Office, helping their work supporting lawmakers, police and prosecutors across Europe.

Provide guidance to CPS and juries on the harms of hate crime, to better meet the public interest case of prosecuting hate crimes

In other areas of law, we rightly curtail free speech when it harms individuals. But there needs to be greater understanding of the harms of hate, particularly religious hate, in affecting integration, peoples’ personal lives or their chances of professional success.

Muslims suffer disproportionally from hate crime, and the disparity between race and religion in legal protection leaves them especially vulnerable. This disparity can fuel distrust in the UK legal and political system, exposing a cleavage for divisive, extremist groups to exploit. The government’s Online Harms White Paper is welcome, but the biggest growth of hate crime has been offline.^[_]

A review of offline harms should inform clearer guidance on the harms of hate crime for juries and the CPS to better make the public interest case. Juries and the CPS struggle to identify the intent behind hate crimes and the balance with free speech. Clearer understanding of the harm hate causes will raise the public interest case by showing how potential incitement is motivated by the desire to divide and restrict social cohesion.

Government has struggled with the political and practical implications of recognising an official definition of Islamophobia. While that debate will continue, the combination of stronger legal definitions and greater understanding of harm overall can better protect the UK’s minority communities. This is the acknowledgement and constructive response from government UK Muslims need, without being drawn into partisan debate.

This report is part of the Institute’s broader work on the threat of extremism to UK society, and complements recent reports on the narratives of divisive Islamist-inspired and far-right groups.

It has set out three responses government must take to stem the increasing threat of hate in Britain. By implementing new laws, we can tackle groups that perpetuate hate, and rein in the permissive environment that allows it to become mainstream. Next, by being better prepared for flashpoints, government can cut hate off at source before it has a dangerous impact. Finally, by strengthening existing laws, we can address the inequality in prosecutions between religious and racial hatred, of which UK Muslims often bear the brunt. The public are behind stronger action. No less than 79 per cent think government should have a zero-tolerance approach to hate crime.^[_] Removing the threat of hate is vital to cohesive communities.

Table A1: A range of positions from mainstream to extreme on four key narratives of the far right

Table A2: A range of positions from mainstream to extreme on six key Islamist narratives