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13 Sep 2017

Is offence an offence?

Aberaeron is perhaps not the first place anyone would associate with controversy of any kind, let alone arguments about racial hatred. Nevertheless, the Welsh seaside town has become the latest  battleground in the contentious debate about the boundaries of freedom of speech – boundaries which shift according to changes in public attitudes. But more interesting from a legal point of view is the reaction of the police and the authorities whose involvement has significantly heightened public interest.

The trouble was not found at a political rally or in a leaflet, but at the local Carnival. Four men entered the event on a float dressed up as characters from Cool Runnings, the 1993 film about the success of the Jamaican Bobsled team. In addition to wearing Lycra suits in the colours of the Jamaican national flag and a sled bearing a line from the film, they were blacked-up and wore dreadlock-style wigs. Edgy, offensive, or simply bizarre – the answer may depend very much on the individual’s perspective. This display resulted in a complaint to the police and the men in question being investigated.  For clarity, it does not appear that the individuals involved were intending to cause trouble of any kind. But would it be possible to argue the same point if the float had been at the Notting Hill Carnival rather than its much smaller counterpart in Aberaeron? In terms of perception, context matters.

Predictably, a wave of outrage followed the Aberaeron event. Local politicians and others were keen to re-churn the already much torn turf of the free speech vs right not to be offended battleground. Often, this a subjective question of context: who is doing or saying what, as well as where and why. What partially differentiates the incident in Aberaeron from most other instances of offensive conduct is that the police were swift to investigate the matter as a “perceived hate crime”. This decision brought the matter into the arena of the criminal law. Any criminal investigation is a serious matter (especially for the suspect(s), but bringing the power of the state to bear on an individual’s right to freedom of expression is inevitably contentious. Possibly all the more so since there had been no suggestion that those involved in the Carnival float had deliberately intended to cause offence to any racial group.

There is no doubt that blacking-up is offensive to many people of all racial backgrounds. Equally, that does not make it a criminal offence. Arguably the most fundamental principle of English criminal law is that anything is permitted which is not prohibited, a principle reinforced by Article 10 of the European Convention of Human Rights and the Human Rights Act 1998. The absence of good taste and good sense should  not be considered by the police in deciding how and whether to investigate an offence.

The police investigation is presumably investigating the possible commission of a crime. They are obliged to investigate allegations of possible criminal activity where there is potentially credible evidence for them to do so. The key legal question is: what crime? Various press reports refer to “allegations of racism”. This is potentially misleading because “racism” is not of itself an offence in English law (although in an extreme form it may violate laws against hate-speech) Certain “racially aggravated” offences exist, and carry a higher maximum penalty than instances of the offence which are not motivated by racism, but those offences do not appear to have been committed here – at least according to media reports of the event. The only other offence that could realistically be brought to bear would be inciting racial hatred under section 18 of the Public Order Act 1986. However, that offence requires an individual to do something that could “stir up racial hatred”. Leaving aside the unlikely possibility that what happened in Aberaeron might have done this, the legislation includes a defence of not knowing that behaviour was, or might be threatening, abusive or insulting. Even in 2017, there may still be people ignorant enough to take advantage of this defence and such ignorance could theoretically present an obstacle to any prosecution. In addition, prosecuting for this offence would put the Cool Runnings reprise act in the same position as the likes of Abu Hamza. It is therefore perhaps unsurprising that the public statement of Dyfed-Powys police referred only a “perceived hate incident” without giving any more details as to the offence under investigation.

If, as seems likely, there is no offence which covers the behaviour of the Aberaeron Cool Runnings team, this is not surprising. Many types of behaviour in a democratic society are deemed offensive, but not criminal. Parliament has deliberately not chosen to criminalise (or to re-criminalise) a wide range of behaviours or actions which a minority of people might well find offensive. Given the strong feelings such behaviours can arouse, it would be no surprise if the law does not criminalise what appears to be unintentional offence committed at the Aberaeron Carnival.

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