Thomas Leonard Ross QC said beefing up powers to prosecute people for alleged “hatred” offenses could result in people being brought before the courts because they reject same-sex marriage.
He also envisaged a situation where public debate on issues like transgenderism could basically end.
Mr Ross was president of the Scottish Criminal Bar Association in 2015/16, among other distinctions.
His face may be familiar to readers from the recent two-part BBC documentary ‘Murder Trial: The Disappearance Of Margaret Fleming’.
It followed the trial of Edward Cairney and Avril Jones, who were convicted of murdering 19-year-old Miss Fleming (and pretending she was still alive to claim her benefits).
It was Mr Ross’ responsibility to represent Cairney.
A review into revamping hate crime law in Northern Ireland began last summer, led by judge Desmond Marrinan.
The News Letter approached Mr Ross about it because he is among many figures who are objecting to current efforts to extend “hate crime” law in Scotland.
Regarding the proposed changes to both Scottish and Northern Irish law, he said “there doesn’t seem be much difference between them at first sight”.
Under the ‘Public Order (Northern Ireland) Order 1987’, freedom of speech does get some explicit protection.
It states: “Any discussion or criticism of marriage which concerns the sex of the parties to marriage is not to be taken of itself to be – (A) threatening, abusive or insulting or (B) intended to stir up hatred or arouse fear.”
But the NI review is considering whether to scrap this clause.
Mr Ross said: “It does seem that the clear purpose of the amendment is to expose people who criticise ’same-sex’ marriage to prosecution.
“The withdrawal of the defence would not automatically turn such discussion into an offence. But it’d certainly give the prosecution authority the green light to have a crack at obtaining a conviction for it.”
The push by the SNP to introduce a new Scottish hate crime bill has been attacked on the grounds it may drastically curtail free speech.
Among Mr Ross’ objections is that “the complexity of the language used makes it almost impossible” for people to know if they are breaking the new Scottish law.
And he believes that a similar complexity bedevils the NI “hate crime” review too.
He said: “The point that the whole subject of ‘hate speech’ is so complicated as to make it almost impossible to draft a suitable criminal provision is made for me by the fact that the NI consultation paper runs to 310 pages.
“The ‘non-technical guide intended for the general reader with no specialist legal knowledge’ runs to 165 pages!”
He suggested that, faced with such complexity, “which citizen will run the risk of a conviction?”
Instead they may “simply avoid any debate of such difficult issues”.
TRANSGENDERISM A MAIN POINT OF CONTENTION:
Mr Ross said there are “legitimate areas which require further discussion” on trangenderism – but that this could be at risk of being stifled.
These include issues like whether biologically male convicts who “identify” as female should be housed in a women’s prison.
He was personally reluctant to voice views on transgender matters in case he “caused offence”.
Judge Marrinan says: “Discussing gender involves examining the spectrum of gender identities which include cisgender, transgender and non-binary gender dentities.”
And as part of his review, Judge Marrinan will consider whether or not the ‘Public Order (Northern Ireland) Order 1987’ should be expanded to cover “gender identity”.
Currently it outlaws things which are “likely” to “stir up hatred or arouse fear” based on religion, race, nationality, or colour.
It is a defence under the Northern Ireland order if a person did not intend to be “threatening, abusive or insulting” (unlike in Scotland, where it appears that a lack of intent will not be a defence).
Mr Ross said that, in circumstances where someone would stand to be judged merely “on the likelihood of it stirring up hatred etc... most sensible people will simply [avoid] the debate entirely leaving the way clear to special interest groups to advocate an unpopular opinion without fear of contradiction”.
Hypothetically this could mean an activist group putting forth a view like “there is no such thing as male and female,” which people would be fearful of then challenging.
This is not the first time that the issue of the “hate crime” review has hit the headlines; the News Letter has covered concerns voiced by NI legal figures and the Presbyterian Church in Ireland – the latter of which is so fearful of the changes that they believe quoting the Bible could become illegal.
The News Letter is the only media outlet which is covering these concerns in any degree of detail.
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