Why a little knowledge of the law is, erm, unhelpful and how Alex Andreou’s legal analysis of s18 of the Public Order Act 1986 is flawed:
Can @metpoliceuk explain why this by @KTHopkins is not “racial hatred” caught by POA1986, PtIII? @TheSunNewspaper pic.twitter.com/IxJZtpQCUO
— Alex Andreou (@sturdyAlex) April 17, 2015
@sturdyAlex I’ve written on this area of law and know it quite well. I really think there’s a case here. It’s astonishing this was published
— Gavin Phillipson (@Prof_Phillipson) April 17, 2015
Just a minute …
@sturdyAlex “migrant” is not a race.
— KristinHeimark (@stokenewington) April 17, 2015
Any hatred stirred must be “racial” for liability under s18 of the Public Order Act.
“Racial” is defined by s17 as, “group of persons defined by reference to colour, nationality (including citizenship) or ethnic and national origins”.
“Migrant” is not a race – as the term “migrant” is not limited to, or code for, people of a particular race, colour, ethnicity or nationality.
It’s therefore difficult to see that the actus reus of a s18 offence has been made out.
Of course, even if there were the actus reus here, the Prosecution would have to go on to also prove Ms Hopkins’ mens rea. Ms Hopkins doesn’t have to prove anything.
The mens rea test for s18 is:
“A person who is not shown to have intended to stir up racial hatred is not guilty of an offence under this section if he did not intend his words or behaviour, or written material, to be, and was not aware that it might be threatening, abusive or insulting”.
Where is her intent to stir up racial hatred when she repeatedly uses the word, “migrant”?
Please also remember that no proceedings will be instituted except by or with the consent of the Attorney General, s27(3).
Yes, Ms Hopkins may say some loathsome things – but on this occasion, has her article fallen foul of s18 POA?
No.