Law Commission Consultation Paper No 213 HATE CRIME: THE CASE FOR EXTENDING THE EXISTING OFFENCES A Consultation Paper ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Lloyd Jones, Chairman, Professor Elizabeth Cooke, David Hertzell, Professor David Ormerod QC and Frances Patterson QC. The Chief Executive is Elaine Lorimer. Topic of this consultation: To consider the law and procedure on some aspects of hate crime. This consultation paper addresses: The aggravated offences under the Crime and Disorder Act 1998, and the case for extending them to create offences involving hostility on the grounds of disability, sexual orientation and transgender identity. Particular reference is made also to the enhanced sentencing provisions under the Criminal Justice Act 2003. The stirring up of hatred offences under the Public Order Act 1986, and the case for extending them to include hatred on the grounds of disability and transgender identity. Geographical scope: This consultation paper applies to the law of England and Wales. Availability of materials: The consultation paper is available on our website at http://lawcommission.justice.gov.uk/consultations/hate_crime.htm. We have prepared some additional information relevant to this consultation which we have published on our website as a set of appendices, as follows: Appendix A: Hate crime and freedom of expression under the European Convention on Human Rights Appendix B: History of hate crime legislation Appendix C: Impact assessment Duration of the consultation: 27 June 2013 to 27 September 2013. Comments may be sent: By email to [email protected] OR By post to Catherine Heard, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ Tel: 020 3334 0275 / Fax: 020 3334 0201 We are happy to accept responses in any form – but we would prefer, if possible, to receive emails attaching the pre-prepared response form available on our website at http://lawcommission.justice.gov.uk/consultations/hate_crime.htm iii After the consultation: In the light of the responses we receive, we will decide on our final recommendations and present them to Government. Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at https://update.cabinetoffice.gov.uk/resource-library/consultation-principles-guidance. Freedom of Information statement We may publish or disclose information you provide us in response to this consultation, including personal information. For example, we may publish an extract of your response in Law Commission publications, or publish the response in its entirety. We may also be required to disclose the information, such as in accordance with the Freedom of Information Act 2000. If you want information that you provide to be treated as confidential please contact us first, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic disclaimer generated by your IT system will not be regarded as binding on the Law Commission. The Law Commission will process your personal data in accordance with the Data Protection Act 1998. iv THE LAW COMMISSION HATE CRIME: THE CASE FOR EXTENDING THE EXISTING OFFENCES CONTENTS Paragraph Page CHAPTER 1: INTRODUCTION 1 Background to the project 1.1 1 Hate Crime: the response of the Criminal Justice System 1.9 2 (1) Recording hate crime 1.11 3 (2) Aggravated offences 1.14 3 (3) Stirring up offences 1.15 4 (4) Enhanced sentencing 1.19 5 Some statistical context 1.21 5 Recorded hate crime 1.22 6 Prosecuted hate crime 1.23 6 The way we have worked 1.26 7 The structure of this paper 1.28 7 Chapter 2 – The current law 1.28 7 Chapter 3 – Aggravated offences: provisional 1.29 7 proposals Chapter 4 – Stirring up offences: provisional 1.34 9 proposals Purpose of the consultation 1.40 10 Appendices 1.41 10 Acknowledgments 1.42 10 CHAPTER 2: CURRENT LAW 12 Introduction 2.1 12 The aggravated offences 2.5 12 The basic offences 2.7 13 The two limbs of hostility 2.10 14 Hostility 2.13 15 v Paragraph Page Limb (a): “Demonstrates hostility” 2.14 16 What constitutes a demonstration of 2.14 16 hostility? When must hostility be demonstrated? 2.19 17 “Presumed membership” 2.22 17 Limb (b): “Motivated by hostility” 2.27 18 What constitutes motivation? 2.27 18 When must the motivation occur? 2.29 19 How is motivation proved? 2.31 19 Need a victim experience the hostile 2.34 20 motivation? Aggravating circumstances common to limbs (a) 2.35 20 and (b) Hostility based on other factors 2.35 20 Meaning of “racial group” 2.37 21 Meaning of “religious group” 2.40 22 Alternative verdicts and alternative 2.42 22 charges Sentencing 2.47 24 Stirring up racial hatred – offences under the Public Order 2.51 26 Act 1986 Introduction 2.51 26 Stirring up racial hatred: common features of the 2.53 26 offences Meaning of “threatening, abusive or 2.54 27 insulting” Meaning of “racial” 2.55 27 Meaning of “hatred” 2.57 27 Need an identifiable victim be threatened, abused 2.60 28 or insulted? The six offences 2.62 28 Use of words or behaviour, or display of written 2.62 28 material: section 18 Elements of the offence 2.63 28 Publishing or distributing written material: section 2.69 30 19 vi Paragraph Page Elements of the offence 2.70 30 Defence 2.74 31 Public performance of a play: section 20 2.77 32 Elements of the offence 2.78 33 Defence 2.81 33 Distributing, showing or playing a recording: 2.82 34 section 21 Elements of the offence 2.83 34 Defence 2.87 35 Broadcasting: section 22 2.88 35 Elements of the offence 2.89 35 Defences 2.92 36 Possession of racially inflammatory material: 2.94 37 section 23 Elements of the offence 2.95 37 Defences 2.100 38 Jurisdiction 2.103 39 Stirring up religious hatred, or hatred on grounds of sexual 2.105 40 orientation – offences under the Public Order Act 1986 Meaning of “religious hatred” 2.110 41 Meaning of “hatred on the grounds of sexual 2.112 41 orientation” Protection of freedom of expression 2.116 42 Religious belief 2.117 42 Sexual conduct or practice 2.122 43 Mental element 2.125 44 Matters common to all stirring up offences 2.126 44 Attorney General’s consent 2.126 44 Penalties 2.128 45 Enhanced sentencing provisions 2.129 45 Introduction 2.129 45 Specific aggravating factors 2.134 46 Section 145: racial or religious 2.136 47 aggravation vii Paragraph Page Section 146: aggravation related to disability, sexual orientation or 2.139 48 transgender identity The approach to sentencing under 2.161 55 sections 145 and 146 “Determination of minimum term in relation to mandatory life sentence”: Schedule 21 to the CJA 2.169 57 2003 Starting points 2.171 58 Aggravating factors 2.172 58 General aggravating factors: section 156(1) of the 2.176 59 CJA 2003 Sentencing guidelines 2.178 59 CHAPTER 3: THE AGGRAVATED OFFENCES: 61 PROVISIONAL PROPOSALS Introduction 3.1 61 The scale and nature of the problem 3.8 62 Crown Prosecution Service data 3.9 62 Examples of hostile conduct identified by disability, transgender and LGB 3.14 64 organisations Reform option 1: enhanced sentencing provisions 3.18 65 (1) Ability to deal with the prevalence and nature 3.21 65 of offending (2) Ease of charge selection 3.24 66 (3) Maximum penalties 3.26 66 (4) Labelling 3.29 68 (5) Recording on the Police National Computer 3.33 69 (6) Sufficiency of the sentencing model in 3.34 69 practice (7) Examination of hostility 3.39 71 (8) Availability of challenge 3.42 72 Possible proposals to improve the operation of 3.46 73 the enhanced sentencing provisions (1) Clearer sentencing guidance for 3.47 73 courts viii Paragraph Page (2) Recording on the Police National 3.52 75 Computer Reform option 2: creating new aggravated offences 3.56 75 (1) Would new offences deal with the prevalence 3.58 76 and nature of offending? (2) To what extent do existing criminal offences already address the conduct that new aggravated 3.60 76 offences would address? (3) Does the existing criminal law adequately 3.63 77 address the harms suffered? (4) Are existing offences and/or initiatives short of criminalisation sufficient to encourage victims and 3.65 77 witnesses to report hate crimes (5) What greater deterrent effect might any new 3.68 78 aggravated offences have? (6) Do the existing sentencing provisions provide 3.71 79 a label that adequately reflects the criminality? (7) Is there a risk that the new aggravated 3.75 81 offences will be ineffective? Models for new offences 3.77 81 Defining the new protected characteristics 3.78 81 The relationship between any new offences and 3.82 82 section 146 DISABILITY: A new aggravated offence 3.84 83 (1) Defining “disability” 3.86 83 (a) The CJA 2003, section 146(5) 3.87 83 (b) The Equality Act 2010 3.92 84 (c) The United Nations Convention on the 3.95 85 Rights of Persons with Disabilities (2) Demonstration of hostility 3.101 86 Definition of “disability” 3.101 86 Membership of a group 3.102 87 (3) Motivation by hostility 3.104 87 Vulnerability vs hostility 3.105 87 SEXUAL ORIENTATION: A new aggravated 3.111 89 offence (1) Defining “sexual orientation” 3.112 89 ix Paragraph Page (2) Demonstration of hostility 3.117 90 Definition of “sexual orientation” 3.117 90 Membership of a group 3.118