Language is a funny thing. Words are generally dependent on their context, including who is the speaker or writer, to whom the words are directed, and the circumstances in which the words are written or spoken.
Language which would be unobjectionable in one context would be criminal in another, even if the speaker or author had the same thought processes.
What do you think should, or would happen to someone who was shouting “Can anyone tell what’s happening to the f@#&ing Pope?”
I am pondering these issues because of a case to which I was directed by Roy Greenslade’s Media Blog in the Guardian.
Being Rude About the Pope in the Newsroom
The case itself, Heafield v Times Newspaper Ltd  UKEAT 1305_12_1701 (17 January 2013), can be read in full by clicking the link.
It was a decision of the Employment Appeal Tribunal in relation to an application for appeal by Mr Heafield, whose original application had been rejected by the Employment Tribunal. His appeal had been rejected at the “sift” and the hearing reported above was his effort to be allowed to pursue the appeal.
The hearing was dealt with by Mr Justice Underhill.
The Appellant, Mr Heafield, was employed as a casual sub-editor by The Times newspaper in 2010 in advance of Pope Benedict’s visit to Britain later that year. The Appellant is a Roman Catholic.
As Mr Underhill J noted:-
On the evening of 12 March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest. There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, shouted across to the senior production executives “can anyone tell what’s happening to the f@#&ing Pope?” When there was no response he repeated the question more loudly. The Appellant was upset and offended what he heard. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief.
The Employment Tribunal dismissed both claims. The appeal was against dismissal of the harassment claim, but not the victimisation claim.
The Judge then detailed the applicable law. (Please note that the statutory provision has changed since the relevant date)
The statutory definition of harassment was at the material time contained in regulation 5 of the Employment Equality (Religion or Belief) Regulations 2003, which reads as follows:
“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of –
(a) violating B’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”
The Tribunal approached the case on the basis of the analysis of regulation 5 (or, strictly, its equivalent in the Race Relations Act 1976) in the judgment of the EAT in Richmond Pharmaceuticals v Dhaliwal  ICR 724. At paragraph 10 the judgment in that case said:
“As a matter of formal analysis it is not difficult to break down the necessary elements of liability under section 3A. They can be expressed as three-fold:
(1) The unwanted conduct: Did the Respondent engage in unwanted conduct;
(2) The purpose or effect of that conduct: Did the conduct in question either
(a) have the purpose or,
(b) have the effect
of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her. (We will refer to (i) and (ii) as “the proscribed consequences”.)
(3) The grounds for the conduct. Was that conduct on the grounds of the Claimant’s race (or ethnic or national origins) ?”
Mr Underhill J noted that:-
As to element (1), the Tribunal found that Mr Wilson had indeed engaged in “unwanted conduct” but it held that neither element (2) nor element (3) had been proved. As regards element (2), the conduct in question had neither (a) the purpose nor (b) the effect of violating the Appellant’s dignity or creating an adverse environment for him. As regards element (3), the Tribunal held that what Mr Wilson said was not “on the grounds of” the Appellant’s religion.
He commented, regarding “purpose”:-
The Tribunal found that Mr Wilson did not know that the Appellant was a Roman Catholic; but, more generally and perhaps more pertinently, it found that there was, to put it shortly, no anti-Catholic purpose in what he said. He simply wanted the article about the Pope and used bad language because he was irritated and under pressure. That seems to me a wholly unsurprising finding, but anyway it is not challenged on this appeal.
Then, as regards effect he said:-
The Tribunal found at paragraph 88 of the reasons that the Appellant was upset by it; and it seems, arguably over-generously, to have treated that as meaning that he had suffered the proscribed consequences. But it held that the case fell within the proviso in paragraph (2) of regulation 5 – in other words, that, to the extent that the Appellant felt his dignity to be violated or that an adverse environment had been created, that was not a reasonable reaction. In my judgment that conclusion was plainly right. What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.
The Tribunal quoted the following passage from our judgment in Dhaliwal:
“ … [N]ot every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers and Tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct, or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”
Those observations are as applicable to the question of reasonableness as to the question of whether a claimant’s dignity has in fact been violated in the first place. The facts of the present case seem to me a good illustration of the kind of case in which the imposition of legal liabilities is undesirable and outside the scope of the legislation.
The EAT ruled that the necessary elements to trigger the legislation were not therefore present and that the Employment Tribunal had undoubtedly been right to dismiss the application by Mr Heafield.
So, that all seems clear enough. Not everything said in a place of employment, even where it offends someone, will amount to a wrong in civil law. As the Judge noted, there are some cases where “the imposition of legal liabilities is undesirable.”
An Alternate Scenario In Scotland
The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has now been in force for just over a year. The Justice Secretary proclaims it a great success. Civil rights lawyers are rather more sceptical.
Imagine for a minute what could have happened if the office of The Times where the Heafield incident took place had been in Scotland and the 2012 Act was in force.
You might wonder how an incident in a workplace, ruled as not breaching the civil law as regards employment rights, could possibly result in criminal sanctions. Read on to see what, I hope, shows some of the inherent absurdity and illiberalism in the 2012 Act, of the very sort criticised by Mr Underhill J.
The relevant parts of the Act are noted at the foot of this post.
Read shortly an offence is committed if, in relation to a regulated football match, a person engages in behaviour expressing or inciting hatred or which a reasonable person would consider offensive, and which behaviour is or would be likely to incite public disorder.
This is an offence even where no one who would be incited to public disorder is present.
OK, you might say. One can see how there are circumstances where the question, shouted and repeated, “Can anyone tell what’s happening to the f@#&ing Pope?” could be offensive and could incite public disorder.
But, how could an event in a newspaper office fall under an Act designed to deal with “Offensive Behaviour at Football”?
It all depends, and this is I think one of the ludicrous facets of the Act, if there was a “regulated football match” on TV in the newspaper office at the time. The offence does not extend to “domestic premises” where the match is shown, but a workplace would not qualify as “domestic premises”.
This is the case whether or not the conduct is at all connected to the football match, and whether or not the person allegedly committing the offence, or the “victim” is watching it.
So, if the game on TV is Real Madrid v Barcelona, then Mr Wilson, who shouted the question, would be safe from action. But if it was Albion Rovers v Penarol of Uruguay, played in Montevideo, for example, it would be covered, as that would be a “regulated match”.
It might seem strange, and contrary to any theory of jurisprudence, that whether an offence is committed depends on whether or not the football game in the background has a Scottish team playing in it!
And the mental element of a crime, the mens rea, does not, from my reading of this Act, necessitate any knowledge at all that a regulated football match is being broadcast. So Mr Wilson could have breached the 2012 Act by saying what he did even if he had no idea at all that a football match was on TV, or indeed whether or not he knew there was a football game going on.
It Was Lucky For Him That Mr Wilson Was In England, Wasn’t It?
In fact, because of the extra-territorial reach of the Act, as was shown by alleged events at Berwick last weekend, it does not necessarily mean that being outwith Scotland avoids the offence being committed.
As Section 10 makes clear (shown below) if Mr Wilson is habitually resident in Scotland, then he would have committed the offence under the Act wherever he was in the world, as long as there was a “regulated match” on TV at the time.
How Would the Police Deal With This in Practice?
The key to implementation of enforcement of this Act comes from the Lord Advocate’s guidance to the police and to prosecutors. The most important part of this is the recognition, or assertion, by the Lord Advocate that these matters are very serious and that, in the absence of other factors, where a person is accused of an offence under the Act and arrested by the police, they should be held in custody until the next court day for a first appearance before a Sherriff.
This means that, for example, a person arrested on a Friday would almost certainly spend the weekend in a police cell, till coming to court on the Monday.
We will use as examples Mr Quiet, who is a Roman Catholic sub editor on the Thymes newspaper and Mr Noisy, who is a Scottish resident but working in London for just now.
Mr Noisy demands to know, in his loud and angry voice and on more than one occasion “Can anyone tell what’s happening to the f@#&ing Pope?”
Mr Quiet gets upset by this reference to the Pontiff. He is an astute man who knows about the Act. He also knows that Mr Noisy lives in Paisley and is flying home the next day, to Glasgow Airport.
Mr Quiet contacts Strathclyde Police and provides them with his complaint and with a supporting witness (although should Lord Carloway’s recommendations be passed, that might not be needed). Mr Quiet also tells the Police when Mr Noisy is due to land at Glasgow.
This is an allegation of a Section 1 offence under the Act. The police and procurator fiscal have been instructed by the Lord Advocate to deal seriously with these matters.
Two of Strathclyde’s finest, PC Plum and PC Plod, therefore pop along to Glasgow Airport the next day, which is a Friday. They meet Mr Noisy off the plane and to his surprise, and possibly vocal objection, he is taken into custody, to appear the following Monday in the dock at Paisley Sheriff Court.
The consequences for Mr Noisy could be dramatic. Explaining to his employer that he did not get back to work on Monday because he was arrested, kept in custody and appeared in court charged with an offence under Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act might lead them to believe he is a football hooligan. He could, and probably would, be suspended and could lose his job.
As far as anyone saying that surely Mr Quiet would not take things so far … Mr Heafield made a complaint to his employer, and when that failed raised Employment Tribunal proceedings and then appealed.
It would in fact be much simpler to ring the police, and would take far less “commitment” on the complainer’s part!
If the Mr Quiet/Mr Noisy scenario played out here, would the latter be arrested and have proceedings raised against him? Bearing in mind prosecutions in Scotland for idiotic and abusive messages on Facebook or Twitter, or for singing what are referred to as “inappropriate” songs, it would be a brave man who would say that, for certain, such a case would not be pursued.
And the absurdity of the Act (and I believe it is flawed to the point of absurdity) is that there is no need for Mr Quiet to say that he was incited to public disorder. The fact that no one was there who was so incited is irrelevant, if there are people who could have been.
The offence depends on proving exactly what football match was on at the time – what if the TV was changed over from Hearts v St Mirren to Bayern Munich v Paris St Germain just before Mr Noisy shouted the fateful words?
It does not matter that Mr Noisy could prove that he did not know there was a football match on.
It does not matter that Mr Noisy could prove that he did not see the TV screen on which the match was being shown.
Let’s look again at the words of Mr Underhill J:-
While it is very important that employers and Tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct, or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”
However the 2012 Act is, in my view, one which encourages “a culture of hypersensitivity” “in respect of every unfortunate phrase”.
That is exemplified by the repeated comments on this blog where someone refers, for example, to “Huns”. (I use that as an example – there are other such words but that is the one I am focussing on just now).
This is indicative of a “culture of hypersensitivity”, without a shadow of a doubt.
Now, there clearly are, in my opinion, circumstances where shouting the question bawled by Mr Wilson could amount to an offence. Just read the case of Walls v Procurator Fiscal, Kilmarnock, where Mr Walls was convicted and had his conviction upheld, for racially aggravated breaches of the peace for signing the Famine Song and shouting “F… the Pope” and “Fenian B…….ds” at a Kilmarnock v Rangers football game.
But the prevailing attitude in Scotland seems to be only to look at the words, and not at context. People have their “thick skin” meters set very low.
One would hope that, if the Heafield v Times Newspapers case had taken place in Scotland the same sensible result would have been arrived at. However I suspect the lawyer for the Applicant would have made reference to the Scottish Government’s repeated comments about the n2012 Act, and the case could have gone the other way.
Free speech is a right but its exercise can be easily and most subtly eroded.
Posted by Paul McConville
1 Offensive behaviour at regulated football matches
(1) A person commits an offence if, in relation to a regulated football match—
(a) the person engages in behaviour of a kind described in subsection (2), and
(b) the behaviour—
(i) is likely to incite public disorder, or
(ii) would be likely to incite public disorder.
(2) The behaviour is—
(a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of—
(i) a religious group,
(ii) a social or cultural group with a perceived religious affiliation,
(iii) a group defined by reference to a thing mentioned in subsection (4),
(b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a),
(c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs,
(d) behaviour that is threatening, or
(e) other behaviour that a reasonable person would be likely to consider offensive.
(3) For the purposes of subsection (2)(a) and (b), it is irrelevant whether the hatred is also based (to any extent) on any other factor.
(4) The things referred to in subsection (2)(a)(iii) are—
(c) nationality (including citizenship),
(d) ethnic or national origins,
(e) sexual orientation,
(f) transgender identity,
(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.
(6) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
2 Regulated football match: definition and meaning of behaviour “in relation to” match
(1) In section 1 and this section, “regulated football match”—
(a) has the same meaning as it has for the purposes of Chapter 1 (football banning orders) of Part 2 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) (see section 55(2) of that Act), but
(b) does not include a regulated football match outside Scotland unless the match involves—
(i) a national team appointed to represent Scotland, or
(ii) a team representing a club that is a member of a football association or league based in Scotland.
(2) For the purposes of section 1(1), a person’s behaviour is in relation to a regulated football match if––
(a) it occurs—
(i) in the ground where the regulated football match is being held on the day on which it is being held,
(ii) while the person is entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or
(iii) on a journey to or from the regulated football match, or
(b) it is directed towards, or is engaged in together with, another person who is—
(i) in the ground where the regulated football match is being held on the day on which it is being held,
(ii) entering or leaving (or trying to enter or leave) the ground where the regulated football match is being held, or
(iii) on a journey to or from the regulated football match.
(3) The references in subsection (2)(a) and (b) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised; and, in the case of such a place, the references in subsection (2)(a) and (b) to the ground where the regulated football match is being held are to be taken to be references to that place.
(4) For the purpose of subsection (2)(a) and (b)—
(a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and
(b) a person’s journey includes breaks (including overnight breaks).
4 Sections 1 and 2: interpretation
(1) Section 1(1) applies to—
(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
(b) behaviour consisting of—
(i) a single act, or
(ii) a course of conduct.
(2) In section 1(2)—
(a) membership, in relation to a group, includes association with members of that group,
(b) “presumed” means presumed by the person expressing hatred or, as the case may be, doing the stirring up,
(c) “religious group” has the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7).
(3) In section 1(4)—
(a) “disability” means physical or mental impairment of any kind,
(b) “transgender identity” means any of the following—
(iv) having, by virtue of the Gender Recognition Act 2004 (c.7), changed gender,
(v) any other gender identity that is not standard male or female gender identity.
(4) In section 2(3), “televised” means shown (on a screen or by projection onto any surface) whether by means of the broadcast transmission of pictures or otherwise.
10 Sections 1(1) and 6(1): offences outside Scotland
(1) As well as applying to anything done in Scotland by any person, section 1(1) also applies to anything done outside Scotland by a person who is habitually resident in Scotland.
(2) As well as applying to anything done in Scotland by any person, section 6(1) also applies to a communication made by a person from outside Scotland if the person intends the material communicated to be read, looked at, watched or listened to primarily in Scotland.
(3) Where an offence under section 1(1) or 6(1) is committed outside Scotland, the person committing the offence may be prosecuted, tried and punished for the offence—
(a) in any sheriff court district in which the person is apprehended or in custody, or
(b) in such sheriff court district as the Lord Advocate may direct,
as if the offence had been committed in that district (and the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district).