The Law Commission recommends reforms to ensure that the criminal justice system is able to make a stronger and more coherent response to hate crime.
For policing purposes, a crime is recorded as a hate crime if the victim or anyone else believes it to have been motivated by hostility based any one or more of five main characteristics – disability, gender identity, race, religion and sexual orientation.
The criminal offences available do not cover all five characteristics.
The Crime and Disorder Act 1998 provides racially and religiously aggravated offences, and the Public Order Act 1986 criminalises various forms of stirring up hatred on the grounds of race, religion and sexual orientation.
The Commission was asked by Government to consider whether these two types of offences could be extended to bring equality of treatment across the five characteristics.
An extensive consultation revealed strong support for extending the aggravated offences but the Commission also heard serious concerns from many stakeholders that the existing offences are unnecessarily complex and not working well.
As a result, the Commission is recommending that a review should be conducted to ask:
· how might the criminal justice system best provide protection for those subjected to crimes of hostility,
· which characteristics should be protected by specific criminal offences,
· how such characteristics should be identified, and
· what role sentencing should play alongside the offences?
A comprehensive review of this nature would require Government support and resources.
If there is no Government support for such a review, the Commission recommends, as an alternative but less satisfactory solution, that the aggravated offences should be extended to disability, sexual orientation and transgender identity.
The criminal courts also tackle hate crime through enhanced sentencing, that is by increasing the penalties for offenders.
The specific aggravated offences already carry heavier sentences.
The courts also have the power to increase the sentence imposed for any other crime where there is hostility based on any of the five hate crime characteristics.
But the Commission’s research found that enhanced sentencing powers are being under-used.
In part this is because the hostility element of hate crime is often not investigated fully and the court is not given the evidence needed to enhance sentencing.
In its report, the Law Commission is recommending that:
· the Sentencing Council provide clear guidance to judges on sentencing for any crime with an element of hostility, and
· the Police National Computer should record where any offence was aggravated by hostility if that is proved as a matter of sentencing.
Stirring up hatred
The Law Commission is recommending that the stirring up hatred offences are not extended.
The consultation provided no clear evidence that such conduct was occurring, and what offensive behaviour is occurring could be dealt with under the existing law.
Creating new offences of stirring up hatred on the grounds of disability and transgender identity would bring very few successful prosecutions.
Professor David Ormerod QC, the Law Commissioner for criminal law, said: “The aggravated offences were originally designed to deal with racially motivated offences. We were asked whether the hate crime offences should be extended to all five characteristics.
“We do not believe that simply extending the existing offences would provide an adequate solution. Instead, we recommend a thorough review of the scheme should be carried out. We believe this would provide the criminal justice system with its best opportunity to respond effectively to hate crime in all its forms.
“The law needs to send a strong and unequivocal message that hate crime is unacceptable. Consistent and routine use of enhanced sentencing, and recording an offender’s hostility-based offending on their criminal record, would be powerful ways to send that message.”
Yusef Azad, Director of Policy and Campaigns from (NAT) National AIDS Trust said: "Hate crime is an issue for people with HIV – it may be rare but we hear of vicious disclosure of someone’s HIV status on social media, or vandalism and graffiti against someone’s property, or verbal or physical assault simply because someone is living with this condition.
"We welcome the Law Commission’s review of the issue, and especially the recommendations for better recording of the enhanced sentencing process for those found guilty of hate crime. People with HIV, police, prosecutors and judges need to know that HIV hate crime is an example of disability hate crime, and work together to ensure such motivation is severely punished.
"We also welcome the clear message that it is unacceptable for some people to be protected by ‘aggravated offences’ legislation and others not – we call on the Government to act on the Law Commission’s recommendation and review the aggravated offences legislation as a first step to real equality in hate crime protection.
"But it is as important for society to deal with the HIV stigma which is still far too pervasive and which is the root cause of such extreme behaviour. NAT is calling on the Government and public bodies to implement the Law Commission’s recommendations as soon as possible – but to add to any action on HIV hate crime, action also on HIV stigma. We should not deal just with the symptoms but with the root causes of such hatred."