Joshua Rozenberg
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February 08, 2009

Diplomat arrested for antisemitic tirade may not be charged

The Daily Mail reports that a high-ranking diplomat at the Foreign Office has been arrested after allegations that he launched a foul-mouthed antisemitic tirade.

The newspaper says that Rowan Laxton, 47, was watching TV reports of the Israeli attack on Gaza as he used an exercise bike in a public gym.

Gym members and staff allegedly heard him shout: “Fucking Israelis, fucking Jews”. It is alleged he also said Israeli soldiers should be “wiped off the face of the earth”.

After a complaint was made to the police, Mr Laxton, who is head of the South Asia Group at the Foreign Office, was arrested for inciting religious hatred through threatening words and behaviour and bailed until late next month.

He has not, apparently, been charged and I do not think he will be.

The offence for which Mr Laxton was arrested was created by the Racial and Religious Hatred Act 2006, which came into force in October 2007. This legislation inserts a new section 29B into the Public Order Act 1986.

It says: “A person who uses threatening words or behaviour ... is guilty of an offence if he intends thereby to stir up religious hatred.”

There can be no doubt that religious hatred includes hatred of Jews. There may be some doubt as to whether the phrase “fucking Jews” is threatening or merely insulting. But there must be every doubt over whether, on the facts as alleged, it could be shown that Mr Laxton intended to stir up religious hatred. Unless the necessary intention can be shown, no charges can be brought.

The law on racial hatred is much broader. Section 18 of the Public Order Act 1986 says: “A person who uses threatening, abusive or insulting words or behaviour ... is guilty of an offence if he intends thereby to stir up racial hatred, or having regard to all the circumstances racial hatred is likely to be stirred up thereby.”

Note the differences: this offence includes “abusive or insulting” words. And there is no need to prove intention, provided it was likely that the words used would stir up racial hatred.

The courts have made it clear that Jews may be regarded as a “race” for these purposes, even though they may not all be drawn from what a New Zealand judge described as a “common racial stock”. I think it would be going too far to say that “Israelis” would also be regarded as a race, even though the words allegedly spoken were presumably directed at Jewish Israelis rather than Muslims, Christians or others.

It follows that a charge of incitement to racial hatred would have more chance of success than a charge of religious hatred on the facts as alleged. Even then, assuming no evidence of intention, it might be difficult to prove the alleged words were likely to have incited hatred among others using the gym.

But that does not mean the matter should end there. If the alleged facts are true, Mr Laxton cannot continue to work as a diplomat.

Posted at February 8, 2009 11:55 PM