The United Kingdom's director of public prosecutions, Alison Saunders, is making it abundantly clear she wants to prosecute more people for hate crimes and to make sure they receive enhanced sentences. In a column in The Guardian and on the site for the Crown Prosecution Service (CPS), she announces an effort to "treat online hate crimes as seriously as those committed face to face."
But then she says, actually, they probably won't:
The definition of hate crime, recognised by the CPS and police, is "any criminal offence which is perceived by the victim or any other person, to be motivated by a hostility or prejudice" towards the personal characteristics mentioned above. Of course, different types of offences have differing consequences and, as online abuse by its nature cannot cause direct physical harm to a victim, it can never be considered or sentenced in the same way. But we know online hate crime has devastating effects.
What Saunders describes here is awfully vague, it appears deliberately so. Her rallying cry is the absurdly circular "Hate is hate." If there's a chilling effect on speech here, it's clearly intentional: She seems to want citizens to perceive "hate" as broadly as possible.
For the sake of us Yanks and other non-Brits, I should note that the U.K.'s definition of hate crimes includes more than targeted physical assaults or property damage. It also includes bullying and harassment, a fact that offers a little more context on what she means by "online hate crimes."
But reading all the new guidance the CPS is putting out will render a person even more confused about what Saunders is saying. One might naturally assume that "hostility" on the basis of a person's race or sex or sexual orientation would be fairly clear-cut, at least as a legal matter. One would be wrong. Here's a case from a page of guidance on race-based hate crime prosecutions:
The demonstration of hostility need not be based on any malevolence towards the group in question. Disposition at the time is irrelevant: see DPP v Green  EWHC 1225 (Admin.) and R v Woods, in which it was irrelevant that the offender, who used racially abusive language to a doorman after being refused admission, might well have abused anyone standing in the victim's place by reference to any obvious physical characteristic.
To eliminate the jargon on this one: The defendant in this case was hostile toward a doorman, and he threw a racist term at him. Evidence suggests he might have been hostile toward whomever was in that doorman's position, and that the hostility had nothing to do with his race. But because he used a racist term, his behavior qualifies as a hate crime.
The case law can be confusing, if not contradictory. In one case, the fact that a defendant used racial slurs during an attack did not mean that his companions should also face hate crime enhancements. But in another case, a defendant was a member of a group whose members had a history of racial hostility, and that was enough.
Writing in Spiked, Naomi Firsht takes note wonders where such baffling wrinkles in the law will lead:
'People all over the world are questioning how those in positions of power can counter the kinds of extreme views that are increasingly being aired, and how societies might do more to prevent such opinions from gestating in the first place', [Saunders] argues. But who will decide what constitutes an extreme view? Feminists Germaine Greer and Julie Bindel have been accused of transphobia because they question whether men can become women. If they expressed this opinion online today, would they be arrested?
As a general subject of discussion, I suspect the answer would be no. But what if they decide to write repeatedly about a specific, identifiable transgender person? Would that count as harassment or bullying?
Saunders' efforts resemble the behavior of ruthless drug warriors. Her crackdown comes amid an increase in reported hate crimes for the first quarter of 2017. The U.K., she apparently feels, must not be punishing people hard enough. She does not seem interested in the possibility that hate crime sentence enhancements are a poor way of dealing with the problems underlying this behavior. For an echo of that approach, look to Attorney General Jeff Sessions' attempts to stop the opioid crises by trying to prosecute more people.