The CPS assesses each case on its individual facts and circumstances. Prosecutions can only be brought in line with legislation and in accordance with the Code for Crown Prosecutors. For something to be considered a hate crime, the perpetrator must have first committed a crime in accordance with the relevant legislation.
The CPS legal guidance on hate crime recognises the right to freedom of expression set out in Article 10 of the European Convention on Human Rights. The CPS seeks to balance the right to freedom of speech and expression against the duty of the state to act proportionately.
In relation to offences of stirring up religious hatred, there is a freedom of expression defence contained in Section 29J of the Public Order Act 1986, which explicitly states nothing in the Act; "...prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult, or abuse of particular religions, or the beliefs or practices of its adherents."