With the rise of right-wing parties across Europe also comes the concern over whether the law responds appropriately to extreme right-wing ideologies. Since this area of the law may restrict people’s freedom of expression, it is an area which has to strike an adequate balance between the right-wing believer’s freedom of expression and the disrespected party’s right to freedom from discrimination. This post is more interested in the borderline cases than those which are clearly cases of absolute extremism and potentially right-wing terrorism. Such cases, as the case of Adam Thomas and Claudia Patatas (The Guardian, December 2018) are clearly covered by the law and there is little room, if any, to make an argument relating to a violation of their freedom of expression.
But what about the less-clear cases? What is ‘enough’ to make it punishable? Is a tattoo of the Nazi swastika enough? A Combat 18 tattoo? A tattoo of Hitler? Do actions or words need to accompany these expressions to make them criminal? This article will first look at the law commonly used to cover anything in this area of extremist right-wing ideologies and will then examine whether a tattoo in itself would be enough to attract criminal punishment.
The law commonly used to prosecute the display of extremist right-wing symbolism and propaganda can be found in the Public Order Act 1986 and the Crime and Disorder Act 1998. But, as Newman and Rackow point out, English law “does not have bespoke offences for dealing with extreme right-wing or Nazi symbolism.” (Newman and Rackow, 143) Therefore, the law discussed below deals more generally with instances of hate speech and not specifically with right-wing symbolism (though this may fall within the law’s general scope).
The Public Order Act 1986
Section 5 of the Public Order Act 1986 reads
(1)A person is guilty of an offence if he—
(a)uses threatening or abusive words or behaviour, or disorderly behaviour, or
(b)displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
(3)It is a defence for the accused to prove—
(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c)that his conduct was reasonable.
Section 5 of the Public Order Act 1986 seems to mark the lowest threshold the display of right-wing symbolism needs to cross (Newman and Rackow, 143). The racially aggravated version of a s. 5 offence can be found in s. 31(1)(c) of the Crime and Disorder Act 1998:
A person is guilty of an offence under this section if he commits—
(c)an offence under section 5 of that Act (harassment, alarm or distress), which is racially or religiously aggravated for the purposes of this section.
Although the law does not even make an explicit reference to right-wing symbolism but instead refers to more general instances of hate speech, the courts have not been shy to use the sections above for displays of right-wing symbolism or propaganda. In Norwood v DPP, the court did not accept the excuse of trying to gain members for a political party or that there was no evidence that any member of the insulted religious group had seen the display for the display of a poster discriminating a religious group and advertising for a political party with that. In Norwood, the defendant was found guilty under both s. 31 of the 1998 Act.
But in Norwood and other cases (for example Kendall v South East Magistrates’ Court and the case of Thomas and Patatas), the symbolism was accompanied by words or clear actions. So what about a tattoo?
Since the s. 31 cases seem to usually involve a clearly stated racist/discriminating phrase, it is probably best to assume that if tattoos fall under any section, it will be s. 5 of the 1986 Act. But do they fall under s. 5 or do they fall short of the requirements?
(1)A person is guilty of an offence if he—
(a)uses threatening or abusive words or behaviour, or disorderly behaviour, or
The key word for us here is “or” since a tattoo does not necessarily mean the tattoo of a racist slogan, but is usually confined to the display of a extremist symbol such as the Nazi swastika or the sign of a right-wing extremist group (for examples of such symbols, see the North West Counter Terrorism Unit’s guide on Extreme Right Wing Symbols, Numbers and Acronyms).
(b)displays any writing, sign or other visible representation which is threatening or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
A tattoo would likely count as a visible representation and it can certainly be threatening for a member of a minority group to see such a tattoo since it represents an ideology that disrespects their existence. But what about the “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”? Norwood seems to imply that is not the key factor, since there was no evidence any Muslim had seen the offensive poster and that area in which it was put up had little to no Muslim inhabitants. But even if this requirement would have to be satisfied, going on the Tube with the tattoo openly showing would probably count since the Tube is used by a diverse group of people.
(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.
Since the offence may be committed in a public place, our Tube example could hold up so far.
(3)It is a defence for the accused to prove—
(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
The defendant would have a hard time proving this defence with a Nazi tattoo when someone who is for example wearing a hijab sat across from them in the Tube.
(c)that his conduct was reasonable.
This reasonableness defence could become a way out. Many symbols now commonly associated with (Neo-)Nazism originate in other cultures and have much more positive associations in these cultures (BBC, January 2005 and October 2014). Having a tattoo of a swastika with it being intended to be related to its previous connotations may be reasonable.
Another option to claim reasonableness would be to argue that the tattoo was made as part of an effort to reclaim Nazi symbols that were taken from other cultures and to give them back their previous meaning. The Learn to Love the Swastika Movement is a good example of such a movement (Huffington Post, November 2013). Though it may become harder and harder to use this excuse the more right-wing tattoos a person has, especially if some of them are affiliated with right-wing extremist groups that are still active.
So could a tattoo fall under s. 5 of the Public Order Act 1986? Potentially. But is it likely to be prosecuted? That is doubtful. The tattoos need to be discovered, someone needs to report it and even then, the prosecutor may exercise his discretion.
It may also be seen as more beneficial to refer such cases to the de-radicalisation programme (part of the government’s Prevent strategy) rather than to bring them before a judge and let the people walk away with a fine. The likelihood of them learning something from having to spend a few minutes in front of a judge and paying a fine is rather unlikely when they have already gone as far as getting extremist tattoos.
The lack of reporting on cases concerning only tattoos and no accompanying words or actions points towards it being unlikely that individuals with such tattoos are prosecuted for them, but this does not make the tattoos any less disturbing and it does not erase the possibility of them falling under s. 5 of the 1986 Act.
Cases
Norwood v DPP [2003] EWHC 1564 (Admin), [2003] Crim LR 888
Kendall v South East Magistrates’ Court [2008] EWHC 1848 (Admin)
Case of Thomas and Patatas (Halliday, Josh. “UK Couple Who Named Baby after Hitler Jailed for Terror Group Membership.” The Guardian, Guardian News and Media, 18 Dec. 2018, www.theguardian.com/uk-news/2018/dec/18/uk-couple-who-named-baby-after-hitler-jailed-for-terror-group-membership)
Legislation
Public Order Act 1986
Crime and Disorder Act 1998
Academic Writing
Newman and Rackow, ‘Undesirable Posters and Dubious Symbols: Anglo-German Legal Solutions to the Display of Right-Wing Symbolism and Propaganda’ (2011) J. Crim. L. 75(2), 142
News Articles
Dodd, Vikram, and Jamie Grierson. “Fastest-Growing UK Terrorist Threat Is from Far Right, Say Police.” The Guardian, Guardian News and Media, 19 Sept. 2019, www.theguardian.com/uk-news/2019/sep/19/fastest-growing-uk-terrorist-threat-is-from-far-right-say-police.
“Origins of the Swastika.” BBC News, BBC, 18 Jan. 2005, news.bbc.co.uk/2/hi/uk_news/magazine/4183467.stm.
Campion, Mukti Jain. “How the World Loved the Swastika - until Hitler Stole It.” BBC News, BBC, 23 Oct. 2014, www.bbc.com/news/magazine-29644591.
Meredith, Charlotte. “Learn To Love The Swastika? Tattoo Parlours Aim To 'Take Back' Symbol From The Nazis In New Scheme.” Huffington Post, 8 Nov. 2013, Learn To Love The Swastika? Tattoo Parlours Aim To 'Take Back' Symbol From The Nazis In New Scheme.
Other
“Extreme Right Wing Symbols, Numbers and Acronyms.” Trafford Council, www.trafford.gov.uk/residents/community/community-safety/docs/extreme-right-wing-symbols.pdf.