Hate crime – a change of emphasis
The Law Commission is considering proposals to reform hate crime laws. Hate crime is where a victim is targeted, perhaps for an assault, criminal damage or harassment, based on a protected characteristic.
What are protected characteristics?
Currently, the protected characteristics are race, religion, sexual orientation, disability and transgender identity.
Why are reforms needed?
The Commission says that there are issues with how the hate crimes laws work in practice. Several different pieces of legislation cover the laws and some overlap; it is also argued that not all of the protected characteristics are treated equally.
For some offences such as assault, criminal damage and harassment, there is an aggravated form of the offence for hate crimes. These require an increase in the sentence as a result of the hate crime element.
There are also separate offences for stirring up racial hatred or stirring up hatred based on sexual orientation or religion. The offence of stirring up racial hatred requires the behaviour to be ‘threatening, abusive or insulting’. For the other two offences, the behaviour must be threatening, and there is no mention of being merely abusive or insulting.
Some definitions of “transgender” in the current laws have also been criticised for using language that is outdated.
What reforms are being proposed?
Sex and gender – it is proposed to add sex and gender to the protected characteristics. This will enhance protections against crimes based on misogyny.
Additional characteristics – establishing criteria to decide if any other additional characteristics should be recognised. For example, age, sex workers, homelessness, philosophical beliefs and alternative subcultures. The aim is to identify and fill any potential gaps in the characteristics whilst referencing the underlying principle and the practical implications of changing the law.
Aggravated offences – the protections of the aggravated offences and the stirring up hatred offences to be extended. In that way all of the protected characteristics are treated the same. This would include any additional characteristics that may be added to the list.
Stirring up hatred – these offences would be reformed “so that they are less difficult to prosecute in cases where the defendant clearly intended to stir up hatred, but provide greater protection for freedom of expression where such intention cannot be proven”. The offences are proposed to be extended to cover incitement of hatred towards disabled and transgender people, and hatred on the grounds of sex or gender.
Racist chanting – the offence of racist chanting at a football match would be extended to cover chanting based on sexual orientation. There is also a consultation on extending the offence to cover other protected characteristics along with other forms of behaviour such as the use of racist gestures and throwing missiles.
What happens next?
The Commission will need to consider the impact of any changes on other aspects of the criminal justice system, including other offences and sentencing practice. They also need to ensure that any recommendations comply with human rights obligations such as freedom of expression and the prohibition of discrimination. Finally, there will be consideration of the implications of any recommendations for other areas of law, such as the Equality Act 2010.
The consultation is open until 24th December 2020. After that date the final recommendations will be made to the government next year.
It is worth noting that reform proposals such as this have the potential to highlight current problems. As a result, some judges may pay closer attention to them when sentencing; we might therefore reasonably expect some upward adjustment to sentence in a few cases.
How can we help?
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
[Image credit: “Love and Hate” by Skley is licensed under CC BY-ND 2.0] Read More
Racially aggravated offences
In recent years legislation has been enacted to ensure that crimes demonstrating hostility towards certain groups of people are treated more seriously than before. If an offence is said to be racially aggravated, then you should expect a heftier sentence.
What does it mean?
An offence is racially aggravated if, at the time of the offence, you demonstrate toward the victim hostility based on his / her membership of a racial group or the offence is motivated by that hostility.
So, shouting racist abuse or making comments, will make an offence racially aggravated, as will the situation where no comments are made but the offence is committed against someone because of their race.
Offences as a result of hostility toward a religious group, rather than racial, are treated in the same way.
The fact that the victim may be indifferent to any abuse is irrelevant to whether the offence is racially aggravated.
It is also irrelevant if the reason for the offence was unrelated to race. For example, abusing a doorman because he wouldn’t let your friend into a club.
How does it affect sentencing?
Each offence in law has a maximum sentence attached to it; for offences that are racially aggravated that maximum sentence is increased. For example, common assault carries six months imprisonment, the racially aggravated offence increases to a maximum of 2 years, for actual bodily harm the maximum sentence increases from 5 to 7 years.
The starting point is to consider the sentence that would have been imposed for the offence if it was not racially aggravated, considering all other aggravating or mitigating factors.
The sentence will then be increased to take account of the racial aggravation.
The extent of the increase in sentence will depend on the level of aggravation. The court will consider whether the offence was:
- planned;
- part of a pattern of offending;
- deliberately set up to be humiliating to the victim
- committed in the victim’s home
- repeated or prolonged.
Account will also be taken of any distress caused to other persons or the wider community and whether the offender was a member of a group that promotes hostility.
Does it have to be charged as being racially aggravated?
Even if the offence isn’t specifically charged as being racially aggravated the circumstances can be treated as an aggravating feature in sentencing (O’Leary [2015] EWCA Crim 1306).
How can we help?
We can advise you whether your behaviour does come within the racially aggravated definition or not, consider the evidence for you and we can also advise you on the likely penalty. This article is intended as a brief overview, if you would like to discuss any aspect of your case, please contact John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk.
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