The Race Relations Act of 1965: An Evaluation of the Incitement Provision

For a general discussion of the Public Order Act , see David Williams, Keeping the Peace: the Police and Public Order (London, Hutchinson, 1967);

Ian Brownlie , The Law Relating to Public Order (London, Butterworth, 1968).

See Anthony F. Dickey , 'English Law and Incitement to Racial Hatred', Race (Vol. 9, No. 3), pp. 311-29;

Dickey , 'Prosecution Under the Race Relations Act 1965, s. 6', Criminal Law Review (September 1968), pp. 489-96;

Dickey , English Law and Race Defamation', New York Law Forum (Vol. XIV, Spring, 1968).

Report of the Sixty-First Annual Conference of the Labour Party (1962), p. 252.

Harold Wilson's pledge is reported in the Guardian (18 March 1962); see the debate Expiring Laws Continuance Bill, H.C. Deb., Vol. 685, col. 370 (27 November 1962).

The possibility the Act could become a two-edged sword was discussed and dismissed in a private meeting of C.A.R.D (Interview with Anthony Lester, 4 June 1968). See also Lord Soper's reference to Hyde Park speakers, H.L. Deb., Vol. 269, col. 82 (2 August 1965).

H.C. Deb., Vol. 711, cols. 940-1 (3 May 1965).

H.C. Standing Committee B. cols. 70-1 (27 May 1965 ). It is possible that religious tensions in Northern Ireland were a consideration. In spite of the conventional barrier of Stormont autonomy, there may have been a political interest in avoiding the anomaly of prohibiting incitement to religious hatred in Great Britain without courting the expectation that the same principle should be extended to Northern Ireland.

H.C. Deb., Vol. 711, col. 933 (3 May 1965). The Act also incorporated, in Section 7, an addition to the Public Order Act extending its coverage to written or other visual material related to a breach of the peace. The interconnexion between Sections 6 and 7 will be discussed below, pp. 148-9.

The Times (26 May 1965); Spectator (16 April 1965).

H.C. Deb., Vol. 680, col. 1060. Brooke relied on the recent conviction of Colin Jordan under the Public Order Act for his 'Hitler was right' speech, together with increased penalties under the Act, as the tactical arguments against the utility of an incitement provision. See also Sunday Times (12 August 1962).

The Conservative Party was charged by some with a special constitutional duty in another race relations issue, the Commonwealth Immigrants Act of 1968. As The Times remarked in a leading article, the party had failed to fulfil this function. 'The Conservative Party has a natural duty to protect the Constitution. If it is not a constitutional party then it is quite meaningless and for a simple reason. Without the Constitution it is impossible to conserve or to protect.' (2 March 1968.)

H.C. Deb., Vol. 716, col. 1062 (16 July 1965).

There is a mistaken impression that incitement to racial hatred, under the rubric of group defamation, is judicially sanctioned in the United States. It is true that the Supreme Court in a 5-4 decision in a majority opinion written by Mr. Justice Frankfurter (whose primary judicial principle was deference to legislative judgment), the Court upheld an Illinois Statute prohibiting group defamation (Beauharnais v. Illinois, 343 U.S. 250 (1952)). But even the majority opinion embraces the notion that the legislative purpose was to prevent violence in Chicago, a city with a history of racial disturbances. It should be noted as well that after Beauharnais the legislature in revising the Illinois Criminal Code replaced the group libel provision with a section which states (Illinois Annotated Stats., Ch. 38, Sec. 27 (1961)): 'A person commits criminal defamation when, with intent to defame another, living or dead, he communicates by any means to any person matter which tends to provoke a breach of the peace.' The legislative committee presented this rationale: '[We reject] the idea of punishing communications which tend merely to injure reputation, and specifically makes the gist of the crime the tendency to provoke breaches of the peace. The Committee felt that insofar as the law of criminal libel was designed to compensate for or to mitigate the injury to the victim's reputation, it has completely failed. In addition the criminal law should generally not be used to remedy private wrongs. A tort action for libel or slander is more appropriate and more effective. Consequently, the theoretical justification for criminal defamation is grounded entirely on the prevention of breaches of the peace.' Moreover, subsequent Supreme Court decisions are formidable barriers to group libel legislation (e.g., New York Times v. Sullivan, 376 U.S. 254 (1964); Garrison v. Louisiana, 379 U.S. 64 (1964)). Four states have group defamation statutes (Connecticut, West Virginia, Indiana, Massachusetts) with no reported cases and thus one can assume no prosecutions. In 1941 a New Jersey Statute was declared unconstitutionally vague (Klapprott v. New Jersey, 127 N.J.L. 395 (1941)).

The handful of reported cases involving racial invective turn on breach of the peace tendencies. See generally the excellent article by John De J. Pemberton, Jr. , Executive Secretary of the American Civil Liberties Union , 'Can the Law Provide a Remedy for Race Defamation in the United States', New York Law Forum (Vol. XIV, Spring, 1968), pp. 33-48.

See note 2, Dickey, supra; Guardian (2 June 1965); H.C. Deb., Vol. 711, col. 941 (3 May 1965).

Regina v. Britton (1967) 1 All E.R. 486.

Dickey , 'Prosecution Under the Race Relations Act 1965', p. 495.

For Jordan, The Times (26 January 1967);

Western Morning News (24, 25, 28 January 1967); for Morris, Evening Sentinal (Hanley) (23 May 1967).

The Times (25 July, 29 September, 18, 19 October, 9, 10 November, 22 December 1967);

Regina v. Malik, 1 All E.R. 582; Transcript, Borough of Reading General Quarter Sessions of the Peace, No. 6028B/67. For Hyde Park Speakers, The Times (20 October, 29 November 1967).

Regina v. Hancock (1968). The case was poorly reported in the London press. See Guardian (26, 27, 29 March 1968);

The Times (28, 29 March, 1 May 1968);

Brighton Evening Argus (25, 26, 27, 29 March 1968).

For the source of funding for the defence, see Sunday Times (30 March 1969). The present author witnessed most of the trial proceedings.

Brighton Evening Argus (26, 27 March 1968).

The Midland News, which was virtually identical to the Southern News, was dropped from the original charge by mutual agreement of the prosecution and the defence counsel. Why this was done is not clear, for the content and authorship of the two broadsheets was virtually identical; the use of both could possibly have strengthened the evidence of distribution. The illness of the Midland distributor does not seem to be sufficient explanation. Since the non-white population was almost non-existent in East Grinsted, it is possible that the problem of establishing intent would have been simplified by establishing distribution in the Midlands. The question is arguable, however.

Transcript of the Summing Up by Mr. Justice Thesiger , Sussex Assizes (27, 28 March 1968), p. 26.

See the Malik and Hyde Park speaker cases, cited in note 17, above.

Transcript of Evidence of Professor Robert Gayre (26 March 1968);

see also Sunday Times (23 June 1968).

The commentary is that of Joseph B. Birdsell of the University of California. Professor Birdsell is a member of the American Association of Physical Anthropologists, the Society of American Archaeologists, the Society of Human Genetics, and the Society of the Study of Evolution.

See the review by Dr. James P. Garlick , University College, Univerity of London, in Race (Vol. V, No. 1), pp. 90-2.

Dr. Garlick concludes '... it is the repeated brain-washing before the data are given ... that makes Coon's thesis at all persuasive and the impression remains that facts and interpretations have been selected to suit preconceived notions. The facts of human variation in time and space do not fit this straitjacket.' See Birdsell, Quarterly Review of Biology (Vol. 38, No. 2, 1963), pp. 178-85.

Subsequent printings of the R.P.S. Southern News, No. 5, appeared with the overprint 'Souvenir Edition' and 'The Paper the Government Tried to Suppress'. There is one interesting sidelight to the trial at Sussex Assizes which finds itself reflected in many other official proceedings touching on matters of race. There was not one man of colour in the courtroom (this included the jury); as a matter of courtesy it is likely that some statements would not have been made had there been, but more especially the object of concern was abstract and dehumanized. In a word, discussion as well as perception was unembarrassed by the presence of one of the principal subjects of concern. Much the same can be said about the debates in Parliament on the Commonwealth Immigrants Act, 1968 and the debates and committee proceeedings related to the Race Relations Act of 1968. One of the most astute comments in this matter was made by Ivor Richard, a member of the committee reviewing the Race Relations Bill, in an article in the Guardian (1 July 1968). Note Malik's successful objection to an all white jury during his trial in early 1969,

The Times (18 March 1969).

The use and misuse of quantitative data such as existed in the Government at the time was one of the more embarrassing features of the Government's performance during the Kenya Asian episode in early 1968. The active gathering of information by the Select Committee on Race Relations and the establishment of the Advisory Committee on Race Relations Research are reassuring. Note also the comment in the Economist, 'Statistics: Black and White' (25 January 1969), and, of course, the recent publication of the findings of the Institute's Survey of Race Relations in Great Britain, Colour and Citizenship: A Report on British Race Relations ( London, Oxford University Press, for I.R.R., 1969).

The capacity of judges to overlook the conjunction of law and justice in race relations is exposed in a startling manner in Lord Radcliffe's Carr-Saunders lecture to the Institute of Race Relations on 26 February 1969 (Institute of Race Relations Newsletter (February 1969), pp. 67-75). See the careful replies by Nicholas Deakin , 'Lord Radcliffe and the Scolding Liberals' , I.R.R. Newsletter (March 1969), pp. 113-16,

and especially Anthony Lester , 'The Broken Compass', ibid., pp. 116-21.

Lord Radcliffe's paper is given in full in Race (Vol. XI, No. 1), pp. 35-51.

For the proposed changes, see H.C. Deb., Vol. 763, col. 94, 95;

Standing Committee B, p. 7866 (9 May 1968);

and A Memorandum on the Race Relations Act, Board of Deputies of British Jews (22 February 1968).

For some indication of change, see the Observer (16 February 1969).

For a discussion of Lord Parker's restrictive interpretation, see A. Dickey, 'English Law and Race Defamation', New York Law Forum (Vol. XIV, Spring, 1968), pp. 20-1.

The action against the B.B.C. for an injunction to force discontinuance of the television series 'Rat Patrol' because of alleged insults to persons of German origin Thorne v. B.B.C. ( 1967) 2 All E.R. 1225.

The representative broadsheets examined included Spearhead (August-September 1964 and May-June 1968); Combat (January-February 1963 and Summer 1967). See also David Shipper's report in the Tribune (21 March 1969).

The Malik case and the Hyde Park case are issues in point; but there were also breach of the peace elements in both instances.

Courtesy of the Gallup poll, London.

Courtesy of the Gallup poll, London.

For an inquiry about the prosecution by a Member of Parliament, see H.C. Deb., Vol. 773, col. 314 (21 November 1968); and for strong opposition to prosecution for an earlier speech of Powell's,

see The Times leading article (4 May 1968).

The Times (6 May 1967);

Guardian (18 March 1967);

Guardian (17 October 1968);

Daily Mirror,

Guardian (23 December 1967);

Sunday Times (28 July 1968).

See note 13, supra.

Guardian (27 July 1967).

H.C. Deb., Vol. 711, col. 940-1.

See also the comment by Lord Stonham, H.L. Deb., Vol. 275, col. 1251 (7 July 1966).

The formula is reminiscent of the 'bad tendency' test which was in vogue for a brief period of time in the 1920s in the United States. (Gitlow v. New York, 268 U.S. 652 (1925)) and afterwards implicitly rejected by the Supreme Court on innumerable occasions.

Interview with Cedric Thornberry (27 May 1968).

For concern about 'black anti-Semitism', see the report of the Prime Minister's speech on the occasion of the 20th Anniversary dinner of the Jewish Vanguard, Daily Telegraph (11 March 1969 ).

See the Jordan, Malik, and Hyde Park cases.

H.C. Deb., Vol. 711, col. 1040 (3 May 1965).

New Society (9 May 1968), p. 668. See also the Institute of Race Relations Newsletter (June 1968), p. 234.

For the indignation of some local councillors when action under Section 6 was mentioned, see the Middlesex County Times (14 March 1969 ):

'Gag to Avoid Prosecution', imposed by a councillor who said 'I do it with a feeling of anger and frustration that the law of the land should have been so altered that persons elected by the people of this borough [Baling] are denied the right to speak without fear of prosecution.' See also Evening Standard (2 March 1969);

Yorkshire Evening Post (7 February 1969);

Kilburn Times (3 January 1969).

Institute of Race Relations Newsletter (November-December 1966), p. 3;

The Times (15 September 1967);

Guardian (15 September 1967).

Observer (21 July 1968);

The Times (9 December 1968);

Jewish Chronicle (10 January 1969);

Guardian (10 December 1968, 29 July 1968).

The Times (3 May 1967);

and see the correction by the Chief Conciliation Officer of the Race Relations Board, John Lyttle, in a letter to The Times (6 May 1968 ). The data in Table 3 is drawn from the files of the Race Relations Board.

For other views, see the letter of Mr. I. G. F. Karsten, The Times (9 May 1968)

and Mr. Richard F. Sparks, The Times (11 May 1968 ).

For a specimen of the misuse of fact, see the letter from Ruth Glass in the New Statesman (10 January 1969 );

and the Institute of Race Relations Newsletter (April-May 1968), pp. 155-6.

Transcript, Regina v. Michael Abdul Malik, Borough of Reading, General Quarter Sessions of the Peace, 6028B/67, p. 29.