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Hate Crime: the Case for Extending the Existing Offences

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Hate Crime: the Case for Extending the Existing Offences Hate Crime: the Case for Extending the Existing Offences Law Commission Consultation Paper No 213 Presentation will cover: • ambit of consultation - terms of reference • background - current hate crime regime, E&W law • provisional proposals, reform options, key questions Hate crime offences 2 sets of “hate crime” offences • Aggravated offences: higher maximum sentences where crime involved hostility based on race or religion - Crime and Disorder Act 1998 • Offences of stirring up hatred on grounds of race, religion and sexual orientation - Public Order Act 1986 What is “hate crime”? For police and CPS “hate crime” is any offence perceived by V or another person as motivated by hostility or prejudice based on: • Race • Religion • Sexual orientation • Disability • Transgender identity • (goths, street workers, other regional variations) • Aggravated offences don’t go this wide Statistics – Home Office In 2011/12 there were 43,748 crimes recorded by the police in England and Wales as “hate crimes” – 35,816 (82%) involved race – 1,621 (4%) involved religion – 1,744 (4%) involved disability – 4,252 (10%) involved sexual orientation – 315 (1%) involved transgender (Source: Home Office “Hate Crimes, England and Wales 2011/12”) Terms of reference MOJ asked the Law Commission to look into: “(a) extending the aggravated offences in the Crime and Disorder Act 1998 to include where hostility is demonstrated towards people on the grounds of disability, sexual orientation or [trans] gender identity; (b) the case for extending the stirring up of hatred offences under the Public Order Act 1986 to include stirring up of hatred on the grounds of disability or [trans] gender identity.” Aggravated offences - detail Under the Crime and Disorder Act 1998, certain crimes (“basic offences”) can be prosecuted as aggravated offences • -> longer maximum sentences than their “basic offence” equivalents • can be charged where there has been hostility on grounds of race or religion • If D convicted, criminal record for “racially/religiously aggravated”- PNC The “basic” offences A set list of 9, including • wounding, assault • destroying or damaging property • threatening or abusive conduct putting people in fear of violence, or provoking violence • harassment and stalking • putting people in fear of violence • stalking involving fear of violence, serious alarm or distress • Why these and not others? Hostility Offence will be aggravated where, either 1) the defendant demonstrated hostility towards V at the time of committing the offence (or just before/after) based on V’s membership or presumed membership of a racial or religious group - or 2) D was motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group Enhanced sentencing - an effective response? Under ss 145 and 146 Criminal Justice Act 2003, at sentencing, J must treat as an aggravating factor D’s hostility on grounds of • (145) race, religion, • (146) sexual orientation, disability, transgender status • J must state in open court that offence was so aggravated • same test for “hostility” as aggravated offences Enhanced sentencing - an effective response? • S 145 – race and religion - can only be used if aggravated offence could not: mutually exclusive • S 146 – the other 3 characteristics - applies to any offence because no aggravated offences (yet) • Even where used, sentence cannot exceed maximum for that offence: contrast aggravated. Sentencing procedure • No formal application by P • If CPS has flagged as eg “Disability Hate Crime” P’s counsel should invite J to treat hostility as aggravating factor • hostility must be established to criminal standard: but considered by J alone, not tested at trial. • Newton hearing if D contests hostility: fair? Current use of sentencing • A potentially valuable tool for LGB, T and D hate crime – flexible, powerful • But not always used in suitable cases • Figures suggest used in less than 2% of “hate crime” cases but no solid data • Example: Sheard – Newton not handled correctly but CA not willing to second guess J on hostility/”horseplay” and 3 yr sentence left alone Our reform option 1 • Strengthening use of ss 145-6 with: (1) a new Sentencing Council guideline, to clarify and embed into CPS and court systems: duty to apply, Coroners & Justice Act (2) recording onto Police National Computer whenever ss 145-6 is used, just as aggravated offence is recorded – so shows on D’s criminal record. (+ will produce better stats.) Main arguments for reform option 1 - Flexible: not limited to 9 offences. - Open court declaration important to Vs - Reforms would not need primary legislation - Better suited to specific types of offending against these three groups? CPS hate crime offence types – 2011 report Offence Disability Homophobic and Race and Category transphobic religion Homicide 0.3% 0.6% 0.1% Offences against the 41.7% 52.2% 49.6% person Sexual offences 6.2% 0.2% 0.2% Burglary 7.4% 0.6% 0.5% Robbery 9.5% 1.7% 0.8% Theft & handling 9% 2.9% 3.6% Fraud & forgery 5% 0.1% 0.1% Criminal damage 3.2% 3.5% 4.9% Drugs offences 0.8% 0.6% 1.1% Public order 12.1% 31.7% 32.5% offences Main arguments for reform option 1 - Ease of charging: clearer and simpler to prosecute? - Applies to all 5 groups - Our reforms will help (1) to increase its use (2) to ensure its use recorded on PNC: “label”, stigma, public protection, in line with aggravated offences Reform option 2 Alternatively – or in addition – to option 1: • extending the aggravated offences to 3 new groups: longer maximum sentences, “label” • LC had no scope to change list of 9 offences or test of “hostility” • LC considers issues of principle re extension (and questions of definition: eg of “Disability”) Extending offences – arguments of principle 1) Would new offences deal with actual offending vs LGB, T and D groups? (9 offences: non-legislative steps) 2) Do existing offences already do the job combined with enhanced sentencing? (s 5 POA, harassment - penalty limited but In practice MOJ stats suggest tariff for “basic” offences enough 3) Does existing law address harms? (argument that “hate crime hurts more” (Iganski) but no strong empirical data - Theory Paper to CP ) 4) Could new offences help increase reporting? Confidence in justice system; sufficiency of other non-criminal steps) 5) Deterrence? Notoriously hard to support 6) Label reflecting seriousness: stigma: PNC 7) But - risk new offences ineffective? (if fail to deter, fail to be prosecuted, won’t send desired message) Stirring up hatred – POA 1986 • Entirely separate regime - new category of conduct criminalised. Inchoate – inciting others to hate a group • Origins: public order, racial hatred, social unrest • Rarely prosecuted – conduct extreme, offence structure complex, threshold high • 6 types of conduct (words/material/behaviour: publishing/distributing/showing film/recordings; possession with view to distribution/publication etc) Two models • Racial broad model – – threatening, abusive or insulting words, – D intends thereby to stir up racial hatred or racial hatred is likely to be stirred up thereby. • Narrower model for religion/sexual orientation – D intends to stir up hatred (likelihood is not enough) – words or conduct must be threatening (abusive or insulting not enough) – freedom of speech - exemptions carve out criticism etc of religious beliefs or sexual conduct Is there a case to extend to hatred on grounds of T and D? 1) do existing offences deal with same conduct? In large part, yes: using threatening, abusive, insulting words/behaviour – s5 POA (and ss 4 and 4A offences) using internet to send menacing/grossly offensive message – Malicious Communications Act encouraging offending – Serious Crime Act But still leaves a gap: Gap left by existing offences: conduct Stirring up offences would cover unique and serious kind of conduct not covered by current law: • Words or behaviour intended (or likely) to spread hatred against group but that is not otherwise a criminal offence • Words or behaviour encouraging people to hate members of group but not necessarily to commit a crime against them Harm 2) does law already address negative impact of this conduct? - different levels of harm - existing offences only address direct harm to Vs, not wider harms to groups with same characteristics, or to society as whole Other arguments of principle 3) deterrent effect (hard to assess: evidence limited) 4) symbolic value (state’s recognition that members of these groups have equal right to protection, respect, dignity: but also adverse effects, eg stifling debate, causing resentment against “favoured” groups, or making them look “weak”?) 5) other solutions short of criminalisation? (education, press complaints, better online content control) 6) will offences be used? Respect for right to “shock, offend, disturb” – ECHR art 10, Handyside v UK Is there a need to extend? • Weighing these arguments, we see a case in principle for new offences of stirring up hatred based on disability and transgender identity • But evidence of need inconclusive: limited calls, prosecutions rare, government previously concluded “no compelling evidence” re D and T hatred being actively stirred up Q We ask consultees if there is a practical need (and if so, why) If extend – what model: “broad” or “narrow”? • Is racial model too broad? Intended or likely – threatening, abusive or insulting? • Is the later model too narrow? • Under narrow model only one successful prosecution (Derby leaflets case: Ali, Javed, Ahmed) Freedom of expression clauses? • May have no legal force but curb chilling effect: guides police, prosecutors, media • If so, covering what? o Opinions about gender reassignment treatment? R Littlejohn, J Burchill articles o Disability, use of resources, benefits? “Misshapen lambs” comment What happens next? • February/March 2014 Law Commission report to Government on views expressed in consultation • Will contain recommendations on need for any new offences and/or sentencing guidelines • for more information, please email: [email protected] .
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