Hate crime – a change of emphasis

[Image credit: “Love and Hate” by Skley is licensed under CC BY-ND 2.0]

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Some definitions of “transgender” in the current laws have also been criticised for using language that is outdated.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 to 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 so that 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 which 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 and it is likely that 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, then get in touch with any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk) or
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk).

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