Legal Beagle by Graeme Edgeler

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A Story in Three Acts; or Hate Speech and Second Order Effects

[This takes a while to get there, but I promise this is a part of my series on hate speech reform]

In 2013, the National government introduced amendments to the Bail Act. These have been controversial over the last several years, as they seemingly led to a massive increase in the remand population.

Except there is no way its bail law did this. The Department of Corrections estimated that the amendment would increase the prison population by approximately 50 people. This was an excellent estimate, because they knew exactly how many people each year would be affected by the law change. For the vast majority of bail decisions, the Bail Amendment Bill would change nothing. The legal test was the same as it had been for years.

Basically the only people whom the law change affected were people charged with murder (less than 100 per year), and people charged with an offence from a specified list of particularly serious offences (to which National added six additional also serious offences), and who already had a conviction and prison sentence for one of those serious offences. This just isn’t many people. Corrections knew approximately how many people would have a harder time getting bail under the law change because it knew exactly how many people it would have effected the year before the change, and the year before that. Somewhere in the order of 100-200 people facing charges (many of whom were already denied bail, under then-existing laws). That group of say 200 people, 110 of whom were remanded in prison under the then-existing laws, and 90 of whom got bail would become a group where they estimated only 40 would get bail. The change was so minor, that National was running advertising taking credit for parts of the bail law Labour had enacted a decade earlier.

But apart from those couple of hundred, maybe, whom the law changed the test for bail, for the other 14,000-20,000 people facing serious charges each year the National government’s Bail Amendment Act changed absolutely nothing. The legal test for bail stayed the same.

But then the remand population skyrocketed. 1600 were in prison on remand just before it passed. 1800 a year later. 2200 the year after that. Then 2700. Then 3000. Then Labour got elected, and it stayed at that 3000 level over that first year. A year later however, it jumped to 3600. It’s dropped a little from that peak, but it’s still well over 3000. And all while the number of people charged with serious offences has dropped.

What happened? In some combination of Judges, Police and prosecutors, those involved in the bail process seemed to get the idea that – despite the law not changing for the vast majority of people charged – practices would have to change anyway. Judges seemed less inclined to grant bail, Police more likely to oppose it, and prosecutors more inclined to seek conditions that would delay release. Was it a direct or indirect reaction to Parliament’s actions, or to the Government’s rhetoric? Maybe. But the fact the law had changed in some small way preceded a substantial shift in practice. Someone got the hint that bail should be harder to get, and more and more people ended up serving time in remand prisons.

This should be on the mind of everyone considering a law change. You need to look not only at the direct effects of what you are proposing, but how they will change the culture and the incentives of those administering the law. It’s one of the major reasons I am concerned with proposals to amend hate speech laws. On their face, the Government’s proposals are relatively minor. In some respects, they would actually legalise some forms of “hate speech” that are currently criminal.

But what will be the second order effects? Will they change policing culture? For types of speech and conduct that are not actually regulated under the new law, will New Zealand Police, like their British counterparts, take it upon themselves to visit people at work over non-crime hate incidents?

Because New Zealand policing speech in a manner similar to that in the United Kingdom is what opponents of this law change fear.

Maybe New Zealand will chart its own course. We have before. About a decade ago, there was a concerted campaign in the United Kingdom to repeal an offence around insulting language. Police had used the existence of the offence to arrest someone who asked a mounted police officer “Do you realise your horse is gay” and to arrest a 16-year-old for holding up a placard which said “Scientology is a dangerous cult”. The criminal law should not be involved in such matters.

What was the offence?

As it was at the time, it was worded:

(1) A person is guilty of an offence if he—

(a) uses threatening, abusive or insulting words …, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

The maximum penalty was a fine of £1,000.

You can see how an offence like this could be misused by Police. New Zealand mostly seems to avoided this sort of problem. New Zealand’s law has been inappropriately used by Police: a related law got Tiki Taane arrested for singing N.W.A’s “Fuck the Police”, but we just haven’t seen the ridiculous cases they have seen the UK. Given this difference, it is interesting to compare this New Zealand offence:

(1) Every person is liable to a fine not exceeding $1,000 who,—

(b) in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person;…”:

The two laws cover basically the same ground. New Zealand’s law would not cover placards, but other than that the English law is perhaps more free-speech sensitive.

What words were banned in England? Threatening, abusive or insulting words.

And in New Zealand? “Any words”.

What intention or effect was required? In New Zealand: intent to threaten, alarm, insult, or offend the person addressed by the words.

In England? The words had to be likely to threaten, alarm, insult, or offend.

Yet enforcement in New Zealand differs greatly. In part, this is because the New Zealand Supreme Court has held that to come within this offence, the speech must be such as the create a risk to public order. But it is also that the Police and the Court don’t generally see themselves as being involved in policing the sort of speech that English police do.

Because here’s the thing: the law changes we’re looking at aren’t the one people should fear. There’s a bit of debate, but on balance, it may even move New Zealand’s laws in a pro-free speech direction. What matters is the culture. And the culture of New Zealand Police has been more speech friendly that that of their colleagues in England. What is primarily to be feared isn’t charges under the new law, but a change in approach to speech applying pre-existing laws.

England has a hate speech law somewhat like our current one. with a few differences (eg it uses the “stir up” language the Government proposes to move toward), but few (if any) of over-reaching ridiculous UK prosecutions or arrests you’ve heard about in news stories are actually hate speech prosecutions. Police in England have prosecuted people for posting rap lyrics on Instagram, for posting a video on YouTube of a dog giving a nazi salute, and an evangelist for displaying a large sign saying “Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord". None of these were hate speech prosecutions under the type of incitement law the Government is consulting on. These were prosecutions under standard offensive language laws, or communications laws like we have in New Zealand. Actual hate speech prosecutions, of the stirring up hatred kind, have tended to be of so-called hate preachers, like Abu Hamza, or people like this guy.

The major difference in New Zealand, is that our Police mostly don’t react that way. Of course, the UK wasn’t always this way. At some point, police started acting differently, and directors of public prosecutions started acting differently, and everyone started more rigorously applying those laws, and then magistrates started convicting people. And the laws they were applying had not actually changed. Just like the bail laws had not changed for literally 99% of the people facing serious charges in New Zealand courts.

But remand rates still doubled.

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