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Criminal Justice and Immigration Act 2008

Section 74 and Schedule 16: Hatred on the grounds of sexual orientation

494.Section 74 gives effect to Schedule 16, which amends Part 3A of the Public Order Act 1986 (hatred against persons on religious grounds) to create offences involving stirring up hatred on the grounds of sexual orientation.

495.New section 29AB of the 1986 Act defines “hatred on the grounds of sexual orientation”. The definition covers hatred against a group of persons defined by reference to their sexual orientation, be they heterosexual, homosexual or bi-sexual.

496.Paragraphs 6 to 11 of Schedule 16 amend, in turn, sections 29B to 29G of the 1986 Act so as to extend the various religious hatred offences in those sections to cover hatred on the grounds of sexual orientation. These offences involve the use of words or behaviour or display of written material (section 29B), publishing or distributing written material (section 29C), the public performance of a play (section 29D), distributing, showing or playing a recording (section 29E), broadcasting or including a programme in a programme service (section 29F), and possession of inflammatory material (section 29G).

497.In relation to each extended offence the relevant act (namely words, behaviour, written material or recordings or programme) must be threatening, and intended to stir up hatred on the grounds of sexual orientation. In the case of the offence under section 29B, there is a specific defence where the words or behaviour are used or displayed inside a private dwelling and the accused had no reason to believe that they can be heard or seen by a person outside that or any other private dwelling.

498.The offences differ from the offences of stirring up racial hatred, in Part 3 of the 1986 Act, in two respects. First, the offences apply only to “threatening” words or behaviour, rather than “threatening, abusive or insulting” words or behaviour. Second, the offences apply only to words or behaviour if the accused “intends” to stir up hatred on grounds of sexual orientation, rather than if hatred is either intentional or “likely” to be stirred up.

499.Paragraphs 6(3) and 12 to 13, 15 and 16 of Schedule 16 rectify technical defects in Part 3A of the 1986 Act as inserted into that Act by the Racial and Religious Hatred Act 2006.

500.Paragraph 6(3) of Schedule 16 omits section 29B(3) of the 1986 Act (which has not been commenced). This provides that a constable may arrest without warrant anyone he reasonably suspects is committing an offence under section 29B. This provision is unnecessary given the general power of arrest now in section 24 of the Police and Criminal Evidence Act 1984, as amended by the Serious Organised Crime and Police Act 2005.

501.The Racial and Religious Hatred Act extends to England and Wales. However, sections 29H(2) and 29I(2)(b) and (4) of the 1986 Act make provision in relation to Scotland only. As such, these sections are redundant and have not been commenced (see Racial and Religious Hatred Act 2006 (Commencement No 1) Order 2007 (SI 2007/2490)). Paragraphs 12 and 13 of Schedule 16 repeal these redundant provisions and remove unnecessary references to England and Wales in sections 29H and 29I. Paragraph 14 of Schedule 16 relates to freedom of expression and is inserted for the avoidance of doubt. It does not change the threshold of conduct required in order for the offence to be made out. Paragraph 16(2) of Schedule 16 removes unnecessary references to England and Wales in section 29L.

502.Section 29K of the 1986 Act makes it clear that the Act does not apply to fair and accurate reports of anything done in the United Kingdom or Scottish Parliaments or the fair and accurate contemporaneous reports of judicial proceedings. Paragraph 15 of Schedule 16 inserts a reference to the National Assembly for Wales.

503.Paragraph 16(3) and (4) of Schedule 16 amends section 29L(3)(b) of the 1986 Act, which sets out the maximum penalty for an offence under Part 3A on summary conviction, to take account of Custody Plus, as provided for in the 2003 Act (but not yet commenced). The maximum sentence on summary conviction is increased from 6 to 12 months and a transitional provision inserted for the period before section 154(1) of the 2003 Act comes into force, such that during that period the reference to 12 months’ imprisonment is read as a reference to a period of 6 months’ imprisonment.

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