The CPS legal guidance on prosecuting racist and religious hate crime recognises the potential impact of prosecutions on Article 10 of the European Convention on Human Rights (the right to freedom of expression). The guidance recognises that not only is speech which is well-received and popular protected, but also speech which is offensive, shocking or disturbing. It is essential in a free, democratic and tolerant society that people are able to exchange views, even when offence may be caused. However, when making prosecution decisions the CPS must balance the rights of an individual to freedom of speech and expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.
The Crown Prosecution Service (CPS) has agreed a shared definition of hate crime with the police in order to ensure that all relevant cases are captured as early possible. This definition is based upon the perception of the victim or any other person and is wider than the legal definition. However, in order for the CPS to bring a successful hate crime prosecution the CPS must present sufficient evidence to prove that the offence meets the definition of the crime set out in the relevant legislation.