• Pressure mounts for end to race hate law loopholes
• CPS powerless to pursue complaints made by police
Senior prosecutors are calling for the laws on race hate crimes to be strengthened to counter the threat posed by the British National party.
The threshold for securing a conviction is so high that far-right activists are able to evade prosecution for material that many people would consider to be threatening and racist, according to sources at the Crown Prosecution Service (CPS).
Prosecutors blame the lack of convictions on the strict legal test, which requires showing an intention to "stir up racial hatred" or a likelihood that racial tension would be stirred up.
The offence, which was created under the Public Order Act, only applies to acts that take place or are witnessed in public so it does not cover leaflets that are pushed through people's letter boxes. It also offers no protection against the publication of inaccurate or false information.
Several BNP leaflets have been referred to the CPS over the last five years – some by senior police officers and one by a judge – but no further action has been taken.
Peter Herbert, the chairman of the Society of Black Lawyers and a part-time judge, submitted a complaint last year over a leaflet called The Changing Face of London that had two pictures, one depicting an all-white street party from the 1950s, the other showing three Muslim women wearing a niqab, one of whom is making a V-sign towards the camera.
"Under the law, it has been extremely difficult to mount a prosecution against extremism and hate speech," said Herbert. "But with the rise of the BNP, and the subsequent rise in racist attacks and the fear the party's leaflets can provoke, it is essential we are given the tools to deal effectively with this threat."
Herbert said the law should protect people from material that creates a fear of racist attacks as well as those that are deemed to incite racial hatred. "All the evidence suggests that it is people from minority communities and the faith communities that are put in fear of violence when racist leaflets are delivered in town centres or on estates. If someone handed out the same thing in the workplace, most employers would consider that gross misconduct; if someone does the same thing in the street, there is very little we can do."
Another complaint was submitted to the CPS by Lancashire police who expressed concern about a BNP leaflet which blamed Muslims for the heroin trade. Four people were arrested and released on police bail last year but detectives are still waiting to hear from the CPS about whether they have grounds to prosecute for "incitement to stir up racial hatred".
In another incident, Derbyshire police alerted the CPS about a BNP election leaflet claiming three asylum seekers had raped a woman. The police said the rape claims were "unfounded", but the CPS said there were no grounds to prosecute under existing law. "Whilst those details in the leaflet regarding the alleged rape are factually incorrect, this in itself does not constitute a criminal offence," said a CPS spokesman at the time.
A senior prosecutor told the Guardian: "There are numerous problems. The test to show incitement is very high and the material has to be distributed in public rather than put through people's doors. This makes it really difficult to get convictions for material which many people consider racist."
A CPS source confirmed that the organisation would review its policies on prosecuting race hate crimes following the election of two BNP candidates, including the party's leader, Nick Griffin, to the European parliament.
"We will need to look again at the situation with prosecuting incidences of this material," the source said.
Last week, the Equality and Human Rights Commission, the official watchdog on race and equality, wrote a formal letter to the BNP giving them one month to remedy three alleged breaches of the Race Relations Act, including the party's whites-only membership policy.
That announcement increased the likelihood of legal action against the BNP in the civil courts, but critics say there have been too few criminal proceedings, despite material distributed by the party which many regard as inflammatory.
Herbert, the former chair of the Metropolitan police race hate crime forum, said a number of anti-racism and human rights bodies would back a change in the law.
"I expect a strong coalition will form around this idea and put pressure on the government to instigate a change in primary legislation as soon as possible," he said.
Anti-racism campaigners welcomed the crackdown on inflammatory or racist leaflets but warned more was needed to effectively counter the threat posed by the BNP.
"Where the BNP has been distributing racially offensive material, it is right that they should be prosecuted with the full force of the law," said a spokesman for the anti-fascist organisation Searchlight. "However, the way we will defeat Nick Griffin and his party is street by street and estate by estate, not lawyer by lawyer and courtroom by courtroom."