Prior to the Manchester United v Liverpool game on Saturday 11 February 2012, Greater Manchester Police confiscated copies of the Manchester United fanzine Red Issue on the grounds that the magazine had “incited racial hatred”. Ch Supt Mark Roberts, of Greater Manchester Police, confirmed that:
"Shortly before kick-off we were made aware that a Manchester United supporters' fanzine being sold outside Old Trafford featured a potentially offensive image. Officers are now seizing the fanzines and in consultation with the Crown Prosecution Service we will take appropriate action against anyone either found selling this particular fanzine or provocatively displaying the image in public.”
The magazine featured, on its back cover, a cut out image of a Klu Klux Klan mask containing the words “LFC” and “Suarez is Innocent”. Greater Manchester Police’s actions have led to widespread condemnation from Manchester United fans who feel that the blanket confiscation of the fanzine was an unjustified overreaction to a joke which mocked Liverpool’s supposed inadequate response to the Luis Suarez affair and nothing more.
So, what were Greater Manchester Police’s legal grounds for taking the action they did?
Inciting Racial Hatred
The offence of incitement to racial hatred is laid down by the Public Order Act 1986.
Under Section 18 of the Public Order Act 1986, a person is guilty of an offence if he displays any written material which is threatening, abusive or insulting and:
· Intends to stir up racial hatred, or
· Having regard to all the circumstances racial hatred is likely to be stirred up.
Under Section 19 of the Public Order Act 1986, a person is guilty of an offence if he publishes or distributes written material which is threatening, abusive or insulting and:
· Intends to stir up racial hatred, or
· Having regard to all the circumstances racial hatred is likely to be stirred up.
Both Section 18 and 19 of the Public Order Act may potentially be relevant as the image was likely to have been both displayed and published or distributed to the public. “written material” includes any sign or other visible representation, so applies to images as well as written words.
There are, therefore, two elements to satisfy the commission of both offences namely:
1. Threatening, abusive or insulting; and
2. a) Intention to stir up racial hatred; or
b) Likelihood of racial hatred being stirred up
The Public Order Act does not define “threatening, abusive or insulting”, although, the CPS state that “these words are given their normal meaning”, which is not entirely helpful. Section 17 of the Public Order Act 1986 defines racial hatred as “hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.”
The seizure of the magazines would have been authorised under Section 19 of the Police and Criminal Evidence Act 1984, which allows a police officer to seize anything if has reasonable grounds for believing that it is “evidence in relation to an offence” under investigation. The police will retain the magazines “so long as is necessary in all the circumstances” (Section 20 Police and Criminal Evidence Act 1984).
Defences
Whilst the item could potentially have been abusive or insulting, it is the second limb of the offences, which will no doubt be the most contentious i.e. did Red Issue intend to cause racial hatred or was there a likelihood of racial hatred being stirred up?
The CPS state within their Prosecution Policy For Race and Religious Crime (http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html) that:
“Sometimes it may be obvious that a person intends to cause racial hatred, for example, when a person makes a public speech condemning a group of people because of their race and deliberately encouraging others to turn against them and perhaps commit acts of violence. Usually, however, the evidence is not so clear-cut and we may have to rely upon people's actions in order to infer their intention.”
There can be little doubt that Red Issue’s intentions were to ridicule their fiercest rivals with a satirical image and not to stir up racial hatred. So, if the CPS are not able to prove that Red Issue intended to stir up racial hatred, they must prove that, in the circumstances, racial hatred was likely to have been stirred up.
“'Likely does not mean that racial hatred was simply possible. We therefore have to examine the context of any behaviour very carefully, in particular the likely audience, as this will be highly relevant.”
In order to prove that racial hatred was not likely to have been stirred up, Red Issue will no doubt point to the fact that the item’s intended audience was a relatively small minority of Manchester United fans who would have purchased the fanzine meaning the likelihood of racial hatred being stirred up was minimal.
Comment
Red Issue certainly deny that any incitement of racial hatred and no doubt maintain that the image was for mocking purposes only:
“Red Issue categorically denies any suggestion that the magazine has ever incited racial hatred. Not one seller was so much as arrested, let alone charged, which we believe tells its own story.”
The CPS will now decide whether there are sufficient legal grounds to bring about a prosecution in this case although the Attorney General’s consent must be obtained before any proceedings can commence (Section 27(1) Public Order Act 1086). In the CPS’s own words:
“It is essential in a free, democratic and tolerant society that people are able robustly to exchange views, even when these may cause offence. However, we have to balance the rights of the individual to freedom of expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.”
Time will tell whether Greater Manchester Police got the balance right or not.
