Chapter 5 - Stirring up Offences
5.1. Currently, in Scotland there are statutory offences of stirring up hatred in relation only to race. These are contained in sections 18 to 22 of the Public Order Act 1986, which is a UK statute extending to Scotland. These provisions deal with conduct which is threatening, abusive or insulting and is intended, or in all the circumstances is likely, to stir up racial hatred. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which was repealed in 2018, did provide for additional stirring up of hatred offences in Scotland: first, the types of behaviour forming offences in relation to a regulated football match under section 1 included stirring up of hatred in respect of all the protected characteristics; and, secondly, under section 6 there was a stirring up of hatred offence of general application in relation to religion.
5.2. This chapter explores the merits of having stirring up offences and whether new stirring up of hatred offences should be introduced in respect of the other protected characteristics, in addition to race.
What is meant by stirring up of hatred offences
5.3. Stirring up hatred is conduct which encourages others to hate a particular group. It is dealt with as a standalone offence in our current legislation. This is distinct, and different from the concept of a baseline offence directed at a member or members of the group ( e.g. harassment or assault) with a statutory aggravation in relation to a protected characteristic. In the case of the latter, the baseline conduct is already criminal; it is the motive or demonstration of hostility that marks it out as a hate crime. The offence is directed against a member, or members, of the group. In the context of stirring up hatred, the intention of the perpetrator is that hatred of the group as a whole is aroused in other persons. Hate is primarily relevant, not as the motive for the crime, but as a possible effect of the perpetrator's conduct. It is not necessary that the perpetrator incites others to commit an offence.
5.4. Unlike an aggravated offence, where the underlying conduct is itself criminal, a stirring up of hatred offence may criminalise conduct which would not otherwise be criminal. As noted in chapter 2, criminalising conduct is a serious step, not taken lightly. In deciding whether to recommend extension of stirring up offences a number of considerations have to be taken into account. These include:
- whether stirring up hatred of a group with a protected characteristic is morally wrong;
- the harm caused by stirring up of hatred offences;
- their seriousness;
- whether they fulfil a strong symbolic function;
- whether there is a gap in the law; and
- whether there are practical benefits flowing from them.
There is also the very significant issue of freedom of speech to be considered. I shall examine these issues in the course of this chapter.
Responses to the consultation paper
5.5. The consultation paper asked whether there should be offences relating to the stirring up of hatred against groups. The majority of individual respondents opposed the introduction of stirring up offences in legislation. Reflecting a view expressed in relation to hate crime generally, some argued that all people should be protected from threats, not just privileged groups of people. Others suggested that the word 'hatred' was too subjective to be used in criminal law, particularly in relation to religion.
5.6. The majority of organisations favoured the existence of stirring up of hatred offences. A relatively common view among those respondents was that they should be extended to all groups with a protected characteristic. Others identified specific characteristics for protection. Some argued that stirring up of hatred should be restricted to inciting violence or expressing actual threats of violence.
5.7. Some respondents pointed out that stirring up hatred online was an increasingly severe threat and a major concern within some sectors of society, in particular religious communities. Respondents pointed out that such behaviour could lead to great harm, exacerbate prejudice, and result in actual physical threat or attack. It also had the potential to cause division within targeted communities. When it appeared, it could spread quickly and communities might feel powerless against it.
5.8. The issue of freedom of speech featured in many of the responses. I discuss this issue later.
The merits of having stirring up offences
5.9. There is a general consensus that stirring up racial hatred is morally wrong. I think that there would be broad agreement that stirring up of hatred in relation to any of the protected characteristics is wrongful.
5.10. Stirring up of hatred may lead to violence or public disorder. It may incite people to commit offences such as assault against individuals in the group. Sentencing Darren Osborne in relation to the murder and attempted murder of Muslims near the Finsbury Park Mosque in June 2017, the judge said, "Your research and joining Twitter early in June 2017 exposed you to a great deal of extreme racist and anti-Islamic ideology. You were rapidly radicalised over the Internet, encountering and consuming material put out…from those determined to spread hatred of Muslims on the basis of their religion".
5.11. Even where not resulting in offences, the stirring up of hatred can contribute to a social atmosphere in which prejudice and discrimination are accepted as normal. Behaviour which may stir up hatred can cause members of the group to feel vulnerable to attack and excluded from the wider community. There may be an impact on the dignity of the group. The Academic Report quotes from Jeremy Waldron  :
… Dignity and the assurance that comes with it are public goods constituted by what thousands or millions of individuals say and do. Our society is heavily invested in the provision of those goods. The point of hate speech is to detract from that provision – to undermine it and establish rival goods that indicate (to fellow racists, to members of vulnerable groups, and to society generally) that the position of some minority or other is by no means as secure as the rest of the world would like to affirm. The point of hate speech restrictions…is to protect the first set of public goods from being undermined in this way.
Although, as is explained in the Academic Report, the empirical studies in relation to the harm caused by stirring up of hatred offences are not as robust as those in relation to other hate crime offences, such as assault or threatening or abusive conduct aggravated in relation to a protected characteristic, I am satisfied that the potential for harm from such conduct is significant. The harm caused by stirring up of hatred offences can be particularly severe and it is an important consideration pointing towards the extension of such offences. 
5.12. Offences of stirring up of hatred in relation to a protected characteristic are particularly serious. They attack the group generally rather than individual members of the group. The following examples illustrate the serious nature of stirring up offences:
- In March 2018, a letter was circulated online entitled Punish a Muslim  in which points were offered for carrying out a variety of acts against Muslim persons on a particular day of action.
- In a case reported by the BBC in January 2018 a self-proclaimed Nazi was convicted of stirring up racial hatred. In a speech he declared that Britain had taken the wrong side in World War II by choosing to fight "National Socialists who were there to remove Jewry from Europe once and for all". He made a number of highly derogatory remarks about Jewish people generally, including, "We let these parasites live among us, and they still do". The prosecutor was quoted as saying that the man clearly intended to stir up hatred and wanted others to hate Jewish people in the same way as he did. 
- In the one case of stirring up religious hatred prosecuted on indictment under section 6 OBFTCA, the accused posted remarks on Twitter stating that he hated Shia and Kurds and called for them to die "like the Jews did at the hands of Nazi Germany". 
- In another section 6 OBFTCA case, the accused posted on Facebook showing support for the IRA including a picture of a person with a gun saying "Where is the Orange walk?"
5.13. The labelling of the particular behaviour in terms of stirring up of hatred is symbolically important. They are particularly serious offences and the conviction and sentence for stirring up hatred should carry a stigma. Stirring up of hatred offences communicate to those convicted and to those who might be tempted to engage in such conduct that society particularly condemns it. A stirring up of hatred offence will be a highly significant entry on the record of previous convictions of the offender. It also communicates to the groups with protected characteristics, and to society in general, that the law has taken steps to protect those with a protected characteristic from hatred. This may have an educative function and encourage reporting of offences. I consider that the symbolic function is a persuasive argument in favour of having stirring up of hatred offences.
Frequency of prosecutions for stirring up offences
5.14. Stirring up of hatred offences directed against the group are likely to be much less common than aggravated offences directed against one or more individual member(s) of the group. The number of prosecutions for stirring up racial hatred under the Public Order Act 1986, and, when it was in force, section 6 OBFTCA, is small when compared with the other hate crime provisions. Between 2006 and 2016 in Scotland there were only 9 cases involving charges of stirring up racial hatred under the Public Order Act 1986. Between 2012 and 2017 there were a total of 32 cases involving charges under section 6 OBFTCA. Section 6 also contained an offence involving the threat of seriously violent acts (condition A) as well as stirring up of religious hatred (condition B). As there is no breakdown between the two in the statistics, only a proportion of the 32 cases will have involved stirring up religious hatred. The limited number of prosecutions does not, however, necessarily mean that there is under-prosecution of these offences, or that they do not have a useful function. It may simply reflect the reality that the type of conduct that merits prosecution as stirring up of hatred is less common than the sort of communication which might be more appropriately prosecuted using a baseline offence and a relevant aggravation. I do not consider that the argument that there might not be many prosecutions is persuasive against having a regime of stirring up hatred offences. Indeed, their relative rarity may only enhance their symbolic value.
Is there a gap in the law?
5.15. I recognise that almost every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation: most, for example, could be prosecuted as threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 ( CJLSA), along with an aggravation. This argument was advanced at the Stage 3 debate on the Bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 ( OBFTCA) as the basis on which the majority took the view that section 6 OBFTCA was not necessary. In my view this argument goes only so far. Much will turn on the circumstances and context in a particular case. In one case it might be appropriate to proceed by an aggravated offence, while in another, even if the conduct could also be prosecuted as an aggravated offence, the facts might point towards proceeding by way of a charge of stirring up of hatred. No doubt in each of the examples cited at paragraph 5.12 the case could have been prosecuted using an aggravated offence. But in each case the nature of the offence, which was directed against the group rather than individual members of it, called out for it to be more appropriately marked by a specific stirring up of hatred offence. I conclude that there is a gap in the law in the absence of stirring up offences in relation to the protected characteristics apart from race.
5.16. The practical benefits are similar to those identified in relation to aggravated offences. The seriousness of the offence of stirring up of hatred is likely to be reflected in increased sentence. The perpetrator will have on his/her criminal record a particularly egregious conviction. Recording of conviction and sentence will allow statistics to be kept and trends to be identified and monitored.
Freedom of expression
5.17. The potential risk to freedom of expression from the introduction of stirring up hatred offences is well recognised. The (now-repealed) offence of stirring up religious hatred in section 6 OBFTCA included express exceptions in section 7 to ensure that the freedom to debate and express views relating to religion was protected. Nothing in the section 6 provision of stirring up of religious hatred prohibited or restricted: (a) discussion or criticism of religions or the beliefs or practices of adherents of religions; (b) expressions of antipathy, dislike, ridicule, insult or abuse towards those matters; (c) proselytising (persuading others to share the same view or belief); or (d) urging of adherents of religions to cease practising their religions. When the Westminster Parliament legislated to prohibit stirring up of hatred on religious and sexual orientation grounds in England and Wales, it included similar protection in relation to the discussion of religion. In relation to sexual orientation, it expressly provided that the discussion or criticism of sexual conduct, practices or marriage, or urging people to alter their behaviour was not in itself to be treated as threatening or intending to stir up hatred  .
5.18. This concern about freedom of speech was widely reflected in the responses to the consultation paper, both by those in favour and those against the principle of stirring up offences. Respondents argued that there was a danger with such legislation that genuine and legitimate criticism could be construed as stirring up hatred. There was a risk that such legislation could prevent legitimate demonstrations against the actions of a particular group. Some pointed to the potential 'chilling effect'  on freedom of speech and freedom of religion and belief. The criminal law must not be used to stifle legitimate views or seriously hinder words and debate. "In a plural, public square all ideas, concepts and beliefs should be subject to robust challenge and debate". 
5.19. In other responses it was pointed out that freedom of speech was not absolute and that there was a clear delineation between, on the one hand, acceptable and even robust criticism amounting to insulting behaviour, and, on the other hand, illegitimate threatening or grossly offensive behaviour. There was a clear distinction between rational argument and rabble-rousing. Context, demeanour, vocabulary and previous conduct contributed to making that judgement. It should be possible to frame legislation that captures deliberate stirring up without also criminalising rational discussion or even humour.
5.20. I am very conscious of, and share, the concerns articulated in the responses to the consultation paper. But I also recognise the point made by some respondents that there is a clear distinction between rational argument and rabble-rousing. In this regard it is, I think, necessary to examine the issue of freedom of expression in more detail, particularly in terms of the European Convention on Human Rights ( ECHR).
Human rights legislation
5.21. Article 10 ECHR, which protects freedom of expression, stipulates:
10.1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
10.2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
5.22. Article 10 protects a wide range of expression, including spoken and written words, internet content, acts of protest and artistic performances. It covers the expression of both facts and opinions, and can apply not only to the substance of the ideas and information expressed, but also to the tone and manner in which they are expressed. The courts have expressly noted that it protects expression which shocks, offends and disturbs other people.
5.23. Not all speech or expression is protected by article 10. Under article 17, activities aimed at the destruction of the rights and freedoms of the Convention fall outside the protection of the Convention. Article 17 provides:
17. Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
5.24. Recent cases suggest that, applying article 17, the court is unwilling to ascribe article 10 protection to extreme conduct or speech that incites violence against the 'general' population based on extremist religious or racial views, for example, advocating the violent overthrow of secular government and the instigation of a caliphate, or promoting the re-instatement of Nazi policies in relation to the destruction of the Jewish people. 
5.25. In cases to which article 10 does apply, a restriction may be imposed if it is prescribed by law; meets one of the legitimate aims set out in article 10.2; is necessary in a democratic society in the sense of there being a pressing social need; and is proportionate to the legitimate aim pursued.
5.26. In relation to whether and to what extent expression is protected by article 10, content and context are important. Freedom of expression carries with it duties and responsibilities. There is an obligation to avoid as far as possible expressions of opinion or belief that are gratuitously offensive to others and thus an infringement of their rights (for example freedom of religion), and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs  . The court has found interference with article 10 rights permissible in relation to the publication of a book with extreme comments about Islam  , electoral leaflets exhorting foreigners to be sent home  and the distribution of leaflets in students' lockers at a school stating that homosexuality is morally destructive and responsible for the spread of HIV/ AIDS  .
5.27. In England and Wales there are stirring up of hatred offences in relation to race, religion and sexual orientation. In 2014, the Law Commission considered whether stirring up offences in relation to disability and transgender identity should be added.  Although, for reasons which I mention later, it did not recommend extending the law to include these characteristics, the Commission expressed the view that stirring up of hatred offences were not infringements of the right to free expression. The Commission considered that stirring up offences pursued the legitimate objectives of securing public safety, preventing disorder and crime and protecting the rights of others.
5.28. I agree with the view of the Law Commission and am satisfied that extending the stirring up offences in Scotland would not infringe the article 10 right to freedom of expression. In addition to its content, the context in which communication is made is highly significant. In the case about distributing homophobic leaflets, the court considered the context important:
…the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them.
5.29. The tone and the choice of language will also be relevant. In most cases it is likely to be quite obvious that the conduct is stirring up hatred of a group rather than contributing to meaningful public debate. It would be open to the Lord Advocate to give guidance to prosecutors in making judgements whether to prosecute. At the end of the day the court will decide whether in a particular case an offence was being committed. A protection of freedom of expression provision, similar to those described at paragraph 5.17 above, could be included in legislation. I do not consider that new stirring up of hatred offences would have the effect of stifling legitimate views or seriously hindering robust debate. I conclude that concerns about freedom of expression should not preclude the extending of stirring up hatred offences.
Which protected characteristics should be included?
5.30. The strongest case for extending stirring up cases to other protected characteristics may be made in respect of religion. The repeal of section 6 OBFTCA has left a gap in the law. Stirring up of hatred in relation to religion is an offence in the rest of the United Kingdom. It is an offence in Canada and most Australian jurisdictions. It features in international instruments which clearly outlaw the stirring up of religious hatred. I note the terms of EU Framework Decision 2008/913/ JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. The Framework Decision highlights the link which often exists in practice between stirring up hatred on racial grounds and stirring up hatred on religious grounds  . Article 1 of the Framework Decision stipulates:
1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable:
a. publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin; [...]
3. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.
I also note the United Nations International Covenant on Civil and Political rights article 20.2:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
I consider that the arguments in favour of extending stirring up of hatred offences to include religion are strong.
5.31. In considering whether stirring up of hatred offences should extend to the other protected characteristics in addition to race and religion, it is worth exploring why section 6 OBFTCA was restricted to stirring up religious hatred only and whether, in particular, this was a decision based on principle. The issue was canvassed in the evidence before the Justice Committee during the parliamentary progress of the 2012 Act. The Minister indicated to the committee that the Scottish Government was open to extending section 6 OBFTCA to all the protected characteristics if the Committee decided to recommend that course. The Committee considered that this was an issue that would require more consideration and invited the Scottish Government to consult on widening the offence at an appropriate point should the Bill be passed. It is clear, therefore, that the decision not to include the other protected characteristics was not one taken on principle.
5.32. In 2010 in England and Wales the stirring up offences were extended to cover not only race and religion, but also stirring up hatred on the ground of sexual orientation. In 2014 the Law Commission did not recommend the extension of stirring up of hatred offences to include disability and transgender identity. They considered that the type of hate speech typically found in relation to disability and transgender status was far less likely to satisfy the requirements for stirring up offence than that found in relation to race and religion.  In Northern Ireland there are stirring up offences extending to sexual orientation and disability, as well as race and religion. The Academic Report notes that in Canada there are offences of public incitement of hatred and the wilful promotion of hatred in relation to identifiable groups. These include age, sex, sexual orientation, and mental or physical disability. Thus, of all the countries considered, Scotland has the least provision for offences of stirring up hatred.
5.33. A number of respondents argued in favour of extending stirring up of hatred offences to all protected characteristics. I consider that the argument that there should be parity between all protected characteristics is strong. It is highly undesirable to have a hierarchy of protected characteristics. I do not consider that the fact that there might be fewer convictions in respect of one characteristic rather than another to be particularly significant. I conclude that, if stirring up offences are to be extended to other protected characteristics, they should extend to all, including any new protected characteristics.
5.34. The provisions in the Public Order Act 1986 for stirring up racial hatred require conduct or material that must be 'threatening, abusive or insulting'. There must also be either: (a) an intention to stir up racial hatred; or (b) having regard to all the circumstances it is likely that racial hatred will be stirred up (which I refer to below as 'the likelihood formula').
5.35. In England and Wales, the threshold for the stirring up offences in relation to religion and sexual orientation are different to those for stirring up racial hatred. First, the conduct or material require to be 'threatening' rather than merely 'threatening, abusive or insulting'. Secondly, intention to stir up hatred is required; a likelihood that it will be stirred up is not sufficient. Thirdly, the express condition protecting freedom of expression was introduced (sections 29J and 29JA). In Scotland, section 6 OBFTCA contained similar restrictions in scope.
5.36. In the parliamentary debates on the Bill to repeal OBFTCA, calls were made by some MSPs for the thresholds in section 6 to be lowered though no suggestions were advanced as to how that might be achieved.
5.37. I consider that the requirement for threatening behaviour sets the threshold too high. Abusive conduct which was not necessarily threatening could still be intended to stir up hatred in relation to a protected characteristic or could give rise to the likelihood that hatred could be stirred up. The use of the phrase 'threatening or abusive' would be consistent with the approach in section 38 CJLSA. I recommend that the threshold about the nature of the conduct in a stirring up of hatred offence should use the words 'threatening or abusive'.
5.38. As to whether the offences should be restricted to an intention to stir up hatred, or should also include the likelihood formula used in the stirring up of racial hatred offences, I consider that the wider test including both of these would give more flexibility. It is relevant to note why the alternative likelihood threshold of "having regard to all the circumstances racial hatred is likely to be stirred up thereby" appears in the Public Order Act 1986. It was inserted in 1976 into the Race Relations Act 1965 following criticism by Lord Scarman in his report into the disorder in Red Lion Square in 1974 that the requirement for proof of intent in the Race Relations Act 1965 was too onerous and rendered the offence "useless to a policeman on the street".  In 2007 and 2010 the UK government introduced the stirring up offences in relation to religion and sexual orientation the Bills contained both legs of intention and likelihood. When the Bill was in the House of Lords the likelihood leg was removed by amendment and the government did not attempt to reinstate it. I do not consider that including the likelihood leg would interfere with freedom of speech.
5.39. In chapter 9 I recommend that the law on hate crime should be consolidated. If the stirring up of racial hatred provisions in the Public Order Act 1986 are to be consolidated along with any new provisions it would be desirable that the tests would be consistent in relation to each protected characteristic. I therefore recommend that any new stirring up of hatred offences should include a requirement of an intention to stir up hatred or that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.
Should the stirring up of racial hatred provisions be revised?
5.40. Sections 18 to 22 of the Public Order Act 1986, which is a United Kingdom statute extending to Scotland, provides for stirring up of hatred offences in five situations:
- using threatening, abusive or insulting words or behaviour or displaying written material which is threatening, abusive or insulting (section 18);
- publishing or distributing written material which is threatening, abusive or insulting (section 19);
- presenting or directing the public performance of a play involving the use of threatening, abusive or insulting words or behaviour (section 20);
- distributing, showing or playing a recording of visual images or sounds which are threatening, abusive or insulting (section 21); and
- providing a programme service, or producing or directing a programme, where the programme involves threatening, abusive or insulting visual images or sounds, or using the offending words or behaviour therein (section 22).
5.41. These provisions are somewhat complicated and cumbersome. If my recommendation for consolidation is adopted, it would provide an opportunity to simplify the provisions in sections 18 to 22. I also recommend that consistency with the other protected characteristics requires the stirring up of racial hatred offences to be limited to threatening or abusive conduct or material. The reference to 'insulting' should be deleted. In this regard it is worth noting what happened in 2013 when the word 'insulting' was deleted from the English harassment offence under section 5 of the Public Order Act 1986. The Director of Public Prosecutions advised that the Crown Prosecution Service ( CPS) had been unable to find any case that could not be characterised as 'abusive' as well as 'insulting' and took the view that from the perspective of the prosecution the word 'insulting' could safely be removed without undermining the ability of the CPS to bring prosecutions. I consider that an equivalent analysis would apply in relation to the offences on stirring up racial hatred, particularly given the very low level of prosecutions that there are in any event.
5.42. In reaching a conclusion as to whether stirring up of hatred offences should be extended to any of the protected characteristics in addition to race, I have taken account of all the material examined in this chapter. The responses in support of the introduction of additional stirring up of hatred offences were persuasive. The conduct is morally wrong. I have taken account of the harm caused by this type of conduct, both to the group and to society as a whole. This type of offending is particularly serious. The symbolic function of having a specific offence to mark such offences is powerful. I am not persuaded that the fact that stirring up hatred offences are likely to be much less common than public order offences with a protected characteristic aggravation is compelling against the introduction of stirring up offences. I consider that there is a gap in the law, albeit there may be alternative ways of prosecuting. There are practical benefits in terms of sentencing, recording of previous convictions and the maintenance of statistics. I am satisfied that such provisions would not breach article 10 ECHR. The case for extending to include stirring up offences in relation to religion is particularly strong. Parity and the avoidance of a hierarchy of protected characteristics point to including all protected characteristics. Having regard to all the considerations, I conclude that stirring up of hatred offences should be extended beyond the stirring up of racial hatred. I also make certain recommendations in relation to thresholds.
Stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics.
Any new stirring up of hatred offences should (a) require conduct which is threatening or abusive; and (b) include a requirement (i) of an intention to stir up hatred, or (ii) that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.
The current provisions in relation to race under the Public Order Act 1986 should be revised and consolidated in a new Act containing all hate crime and stirring up of hatred legislation.
Any replacement for the stirring up of racial hatred provisions should (a) require conduct which is threatening or abusive; and (b) include a requirement (i) of an intention to stir up hatred, or (ii) that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.
A protection of freedom of expression provision similar to that in sections 29J and 29JA of the Public Order Act 1986 and section 7 OBFTCA should be included in any new legislation.