Kimble & Souris v Orr

The case of Kimble & Souris v Orr involved the applicants seeking to have certain remarks made against them deemed as an act of incitement under the relevant legislation. The applicants, Kimble and Souris, sought to establish that the public act in question was capable of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race. The dispute was heard in the relevant tribunal, where the applicants sought to have the remarks deemed as incitement under the Act. The central legal issues the court was required to decide related to the interpretation of the term "incite" and the threshold for establishing incitement under the relevant legislation. Specifically, the court needed to determine whether the remarks were sufficiently inflammatory to incite hatred or contempt, whether the intent of the perpetrator needed to be proven, and whether the actual incitement of others was a necessary element. The court also needed to consider the appropriate characterization of the audience and the relevance of the social and historical context in determining the capability of incitement.

The court held that the word "incite" should be given its ordinary English meaning, encompassing urging, spurring on, or stimulating to action. It ruled that it was not sufficient for the words to merely convey hatred or express contempt or ridicule. The court clarified that the section did not require proof of an intention to incite on the part of the perpetrator and that it was not necessary for the applicant to prove that a person or persons were actually incited. The court emphasised that the key question was whether the ordinary reasonable reader or listener could understand from the public act that they were being incited to hatred or contempt. The court also held that race must be a substantially contributing factor for incitement, and that other grounds, while relevant, did not negate the incitement if race was a contributing factor. The court further noted that the social and historical context could be relevant to the extent that it might be presumed to be part of the ordinary reasonable person's knowledge and experience.

Based on these principles, the tribunal concluded that the remarks made against the applicants were indeed capable of inciting hatred towards them on the ground of race. The tribunal found that the nature of the remarks and the circumstances established that they were made on the ground of the race of Mr Kimble. The tribunal was satisfied that the remarks met the threshold for incitement under the relevant provisions of the Act. The tribunal's findings were based on the understanding that the ordinary reasonable reader or listener could infer incitement from the remarks, and that race was a substantially contributing factor in the incitement.