AP14 Justice Committee Offences (Aggravation by Prejudice) (Scotland) Bill Written submission from the Equality and Human Rights Commission Introduction 1 The Equality and Human Rights Commission was established by the Equality Act 2006 and came into being on 1 October 2007. We are the independent advocate for equality and human rights across the three nations of Great Britain, and we work to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. We enforce equality legislation on age, disability, gender, gender reassignment, race, religion or belief, and sexual orientation and encourage compliance with the Human Rights Act. In Scotland, we co-locate and work in partnership with the Scottish Commission for Human Rights. 2 The Commission welcomes the opportunity to give evidence to the Justice Committee on the Offences (Aggravation by Prejudice) (Scotland) Bill. The Commission, and its legacy organisations, the Commission for Racial Equality (CRE), Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC), have been closely involved in the debate on criminal justice responses to hate crime in Scotland, with the CRE represented on the Cross-Party Working Group on Religious Hatredi, and both the DRC and the EOC members of the Working Group on Hate Crimeii. 3 The Commission has sought to build on this work from its legacy commissions, and is currently taking forward a number of pieces of work looking at legislative and policy responses to crime targeting different social groups and at how different types of offence disproportionately affect different sections of society. At the GB level, work is underway on identifying the priorities for promoting personal safety and security for disabled people, looking at criminal justice responses, but also those from the health and social care sectors. In Scotland, the Commission aims to reflect and lead debate on the criminal justice responses to gender-based violence, and will produce a report in spring next year. 4 The Commission supports the introduction of statutory aggravations to identify and tackle crimes motivated by malice and ill will towards gay, lesbian, bisexual, transgender or disabled people, in line with the recommendations of the 2004 report of the Working Group on Hate Crime. Evidence strongly suggests that LGBT and disabled people are disproportionately more likely to be victims of certain types of offence, and that statutory aggravations have the potential to be one effective method of addressing these crimes, providing greater confidence and security for victims and assisting in identifying and addressing offending behaviour. 1 AP14 5 This submission will concentrate on defining the nature of the problem, and will attempt to clarify some of the confusion that sometimes surrounds the term “hate crime”. It will touch on some of the issues relating to crime targeting disabled people, in particular the persistent “vulnerability” model which has at times skewed debate in this area. It will also consider the valuable learning – both positive and negative – from the introduction of statutory aggravations for disability and homophobic hate crime in England and Wales. Finally it will seek to locate statutory aggravations within a wider set of interlinked policy and legislative responses to targeted crime. The Nature of the Problem It is probably difficult for heterosexual people to realise just how often one is insulted simply for being or looking gay. Whilst straight-looking myself, when my partner and I are together, we are obviously a gay couple. We receive completely unwarranted abuse quite often and have just got used to ignoring it. As we got off our local bus a few months ago, a young woman with whom we had had no contact or conversation whatsoever, called out: ‘F***ing poofs!’ What can one do? – 59 year old respondent to Stonewall surveyiii 6 There is a growing body of evidence that LGBT and disabled people are significantly more likely to be targets of various types of crime, including harassment, abuse and assaults, because of who they are, or are perceived to beiv. These crimes are not simply unacceptable in themselves but, given their targeted nature, strike at the heart of the values and norms of a fair, tolerant society. As one commentator puts it, Hate crimes offend societal norms, or the collective moral code ... ... Hate crime offenders are entitled to their reservations and opinions about living with diversity. However, when they act on those opinions and commit crimes motivated by bigotry, they offend values that are fundamental to civil societyv. 7 This type of targeted crime would also appear to have a more profound and lasting impact on the victim than other types of crimevi. There is therefore a compelling argument, both in terms of the prevalence of this type of crime, and the impact it has on individuals’ lives, to identify more effective criminal justice responses. Defining Hate Crime 8 One of the issues which have hampered the debate on criminal justice responses to hate crime is the term itself. While a useful shorthand, it can also be emotive and misleading. The central issue is not ‘hate’ as such, but prejudice or ill-will towards a social group which manifests itself in a criminal act. 2 AP14 9 The need for clarity is particularly important when considering crimes motivated by prejudice or ill-will towards disabled people. As one learning disability organisation puts it, The phrase ‘hate crime’ is important in terms of recognition, but the label is sometimes confusing or unwelcome. Disabled people are in effect given a Hobson’s choice of being labelled ‘vulnerable’ or seen as being ‘hated’. Neither option is empowering or positive for disabled peoplevii. 10 It is important therefore to ground debate on statutory aggravations in a clear definition of hate crime, which focuses on the motivations and values of the perpetrator, not the identity of the victim. The definition used by the Scottish Executive working group on hate crime in its 2004 report – ‘crime motivated by malice or ill-will towards a social group’ – is useful in this regard. Successful implementation of statutory aggravations In other cases victims were deliberately targeted, many of them had been attacked or harassed before, in almost all cases more than one attacker was involved, and the perpetrators used explicit derogatory language like ‘spastic’, ‘schizo’, ‘cripple’ and ‘muppet’ to describe their victims. The motivating factor stares us in the face: a hostility and contempt for disabled people based on the view that disabled people are inferior, and do not matter. –Scope report on disability hate crimeviii. 11 The dangers of proceeding on the false premise that all disabled victims of crime are inherently vulnerable can be seen from the mixed lessons which have come from the introduction of statutory aggravations for homophobic and disability-related hate crime in the Criminal Justice Act 2003. The murder of Jody Dobrowski on Clapham Common in October 2005 and the subsequent conviction of his killers was an important milestone because of the clear statement from Judge Brian Parker as to the homophobic nature of the crime and the increased sentence given to the two men as a resultix. 12 There has yet to be a similarly high profile use of the disability aggravation, with suggestions that police and prosecutors in England are only now beginning to recognise the scale of the problemx. Under- reporting also remains an issue, with widespread agreement that official figures do not reflect the true scale of the problemxi. The outgoing Director of Public Prosecutions in England and Wales, Sir Ken Macdonald, has been very vocal on the current shortcomings in identifying and prosecuting disability hate crime in a speech in October this year, and is clear that part of the problem relates to the misapprehension that disabled people are inherently vulnerable: ...where people are deliberately targeted because of their vulnerable situation, it is our duty to bring the sentencing court's attention to this 3 AP14 fact. However each of us needs to be careful about the language that we use. There is a world of difference between calling a person 'vulnerable' and labelling their situation at the time of the offence as vulnerable... ...calling a person vulnerable conflates their situation with their identity. The effect of this is that 'vulnerability' becomes an innate, unchanging and unchangeable characteristic of disabled people. We are one step away from making the assumption that disabled people should expect to be attacked because of who they arexii. 13 The effective implementation of statutory aggravations for disability hate crime will depend on the kind of leadership shown by Sir Ken Macdonald, and on police and prosecutors ensuring that policy and practice is not shaped buy often unconscious assumptions about disability and vulnerability. 14 Statutory aggravations can prove valuable for a number of reasons. They underline the specific seriousness of crimes motivated by prejudice and ill will and allow police and prosecutors to identify and flag such offences consistently. They increase victims’ confidence about the response of criminal justice agencies and therefore encourage victims of targeted attacks to come forward. And crucially, they are central to identifying and addressing offending behaviour, allowing for more focused and tailored responses to offenders and their motivation. 15 Statutory aggravations should not however be seen in isolation as the only policy response to targeted crime. The Committee may want to consider the Commission’s parallel evidence to the Equal Opportunities Committee, where we suggest that responses to gender and age-related crime may need to be differentxiii. Aggravations covering homophobic, transphobic and disability related crime will themselves have to be seen against the backdrop on a range of other legislative and policy interventions, from antisocial behaviour measures to the implementations of the Adult Support and Protection (Scotland) Act 2007.