On 30 September last year, Fleming Rose, the cultural editor of the Danish newspaper Jyllands’ Posten, stepped into the heart of a storm when he published the now infamous cartoons depicting the Prophet Muhammad.

To date, the storm shows no signs of diminishing. The cartoons have been published by a variety of European newspapers, apparently in a show of solidarity, and are easily accessible on the internet.

There are frequent reports of rioting and even death, the latest in Nigeria, and the cartoonists and employees of the newspaper are constantly threatened. Such is the price of freedom of speech.

It was against this backdrop that Parliament was called on to consider the Government’s controversial Racial and Religious Hatred Bill.

On 31 January, the Government persuaded Parliament to introduce laws making it an offence to intend to stir up religious hatred by behaving in a threatening manner or by using or publishing threatening words.

The Government, however, failed to persuade Parliament to accept its more controversial proposals: that the offence should include abusive or insulting behaviour or words and that the offence should include behaviour that was merely likely, rather than intended, to stir up religious hatred.

On 16 February, the Racial and Religious Hatred Act 2006 received Royal Assent. It is not yet known when it will come into force.

The Act makes it a criminal offence, punishable by a maximum of seven years imprisonment and/or an unlimited fine, for anyone who intends to stir up religious hatred to: ❚ use threatening words or behaviour; or ❚ display any written material which is threatening; or ❚ publish or distribute written material which is threatening; or ❚ have in his/her possession written material which is threatening, with a view to it being displayed, published or distributed.

The Act also extends responsibility to any company which displays, publishes or distributes such material and to any officer of that company if it was done with his or her connivance or consent.

The Act requires three elements to be proved by prosecution: ❚ the use of words or behaviour or the publication or distribution of written material. A straightforward issue of fact. The Act defines written material as any sign or visual representation, so would include cartoons ❚ the words, behaviour, or written material were threatening. It is not necessary to prove that someone felt threatened, merely that it was probable that someone would feel threatened. Presumably this depends very much on the prevailing social climate at the time of publication; religious groups may on occasion feel threatened by what, at another time, may be considered innocuous ❚ an intention to stir up religious hatred. Courts are used to determining intention, but what amounts to religious hatred will be more problematic.

The courts can look to the Act for the definition of religious hatred where it is described as "hatred against a group of persons defined by reference to a religious belief or lack of religious belief", but the courts will have to decide themselves what amounts to hatred.

If Mr Rose and Jyllands’ Posten were based in England, how would they fare? If the Attorney General considered prosecution was appropriate, it would be for the court to interpret and apply the new law.

The judge would need to be mindful of the requirement in the Act that it should not be applied in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions.

The court would need to examine the cartoons very closely before deciding whether they were threatening and listen carefully to the explanation for publication to establish what was intended.

Having done so, in all probability, the court would conclude that what was published was insulting, insensitive, and disrespectful, but not illegal.

Jonathan Crusher is a partner in the media team at Farrers

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