The world is again reeling from brutal and senseless terrorist attacks.  At least 49 innocent people lost their lives when a gunman opened fire on a mosque in Christchurch New Zealand last week, live-streaming the atrocity on social media as he did so.  At the time of writing, it is believed that the crime was committed by an organised far-right, anti-immigrant extremist.  Today, a man suddenly opened fired on a tram in Utrecht.   Most people cannot comprehend what would motivate anyone to murder complete strangers at random, and undoubtedly, the social and psychological causes behind these crimes are highly complex, and beyond the scope of a blog by lawyers.  Nevertheless, questions about how the legal system tries to regulate society in a way which protects fundamental freedoms (including the liberty to do and say things which many of us might deeply dislike) on the one hand, against the need to ensure public safety and protect vulnerable groups, on the other, are at the heart of our work.

Regrettably, prejudice and hostility arise wherever humans are interacting with each other, negative feelings are put into action, unconsciously or unconsciously, in a variety of ways which hurt or damage those on the receiving end.  Clearly, terrorist attacks are at the extreme end of the spectrum, but there is a whole gamut of unpleasant behaviour which minorities endure.  It is heart-breaking to witness how much abuse some people face simply for being themselves ( depending of the context, that might be Muslim, non-white, female, disabled, gay, elderly, teenage or innumerable other things), receiving constant judgement and rejection.  There always the possibility that one day,  the relentless raindrops of aggression will become a flood, and someone will take their life, having deemed their very existence an offence; but even without it ever coming to that, the constant drip of hostility is corrosive.   It is not the job of criminal law to micromanage human behaviour, because this most coercive form of State power should only be used when strictly necessary, but we are left with the question of how much is too much?

Where there is violence or the threat of violence, it is easy to agree that the law must intervene, but what about other situations?   When it comes to verbal mistreatment, the threshold is quite high.  In the United Kingdom, hate speech generally requires the perpetrator to intend to inflict harassment, alarm or distress, or to stir up hatred.  Quite rightly, the freedom of expression of the speaker must be taken into account when the courts decide where lines should be drawn, but that still leaves ample scope for hurtful words and behaviour to flow through the filter.

We are not suggesting that the position could or should be any different from this, as few of us would want to live in a State where social interaction was closely controlled, or freedom of expression stifled.   Also, genuine discussion should not be mis-labelled as bigotry, hate-speech, racism or religious prejudice.   Critiquing the behaviour, opinions or practices of a group may be entirely reasonable, whether or not they happen to be a social minority. Expressing the view, for example, that conservative Christians or Muslims who condemn homosexuality as sinful, are damaging other people, is not anti-Christian rhetoric or Islamophobia.  It is a legitimate perspective within a wider social debate, and by the same token, the people from those faith backgrounds who wish to argue back that they are not homophobic are entitled to do so.   There is scope for legitimate debate and disagreement.

However, it remains the case that there is a very wide gutter, through which a lot of the detritus of wholly unnecessary prejudice and dislike is allowed by the law to flow. This has to be so, because the alternative is living in some kind of hyper-controlled totalitarian state, a nightmare from the pages of Orwell or Huxley; therefore we should freely take it upon ourselves to try to challenge all these misconceptions and stereotypes.  We cannot and should not expect the law to try to make us kind, decent and warm-hearted people, but there is life beyond the legal realm.

It isn’t the function of the law to regulate whom we sit happily next to happily on the train, or whom we unsubtly avoid.  It isn’t the role of legislation to make us include people when a group of colleagues or students go to get lunch together.  Neither the police or the judiciary are going to oblige us to stop if someone is struggling to ask for directions or help in broken English.  Nevertheless, we can still decide that we wish to do these things.  We cannot, unfortunately, prevent people being the victims of senseless hate from third parties, but we can make a conscious decision about the way we want to use the freedoms which we enjoy.

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