CHAPTER TWO
AN OVERVIEW OF
THE LAW
This chapter is an overview of the current law in England and Wales. Later chapters will address the law in more detail. In order to understand how the different provisions inter-relate, it will be helpful to read this chapter first.
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The law relating to hate crime in England and Wales cannot be found neatly presented in one spot. It is the product of years of evolution and understanding – a process that continues today, with Consultations taking place about how far its scope should extend. So it is that the current law in relation to hate crime is actually a melange of specific statutory offences, and more general provisions aimed at the sentencing stage.
It is for that reason that the discussion of the law in this chapter and, indeed, this book will be separated into two limbs: 1) statutory offences; 2) the sentencing uplift. Essentially, if the offence with which you are dealing is not a specific statutory offence, the hate crime element will be dealt with at the sentencing stage by way of the sentencing uplift provisions.
There are a number of specific statutory offences that can be called ‘hate crime’ offences. They can be found in the following acts:
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The Crime and Disorder Act 1998;
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The Public Order Act 1986;
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The Football Offences Act 1991;
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Ecclesiastical Courts Jurisdiction Act 1860;
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The Offences Against the Person Act 1861.
The Crime and Disorder Act 1998
The offences in the Crime and Disorder Act 1998 (“the 1998 Act”) are aggravated versions of the ‘basic’ offences. So, for example, an assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861 becomes an aggravated assault occasioning actual bodily harm under section 29 of the 1998 Act.
Currently, the 1998 Act only provides criminal offences that are aggravated by virtue of race or religion.
In order to prove the offence, then, the Prosecution must not only prove the basic offence but must also prove that it was racially or religiously aggravated.
Section 28 of the 1998 Act sets out the meaning of ‘racially or religiously aggravated’. According to section 28(1):
“An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.”
Although this section expressly limits its definition of ‘racially or religiously aggravated’ to the specific offences set out in the 1998 Act, we shall see this wording mirrored in other legislation dealing with hate crime offences.
So we can see that whether an offence is racially or religiously motivated depends upon whether one of two conditions are satisfied:
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Whether the offender demonstrates hostility towards the victim based on their membership or presumed membership of a racial or religious group, at the time of committing the offence or immediately before or after doing so;
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The offence can be said to be motivated (either wholly or in part) by hostility towards members of a racial or religious group based on their membership of that group.
Demonstrating hostility may be relatively easier to prove: very often, it might take the form of words spoken at the time of the attack. Proving motivation, however, requires delving into the mind of the defendant – a notoriously difficult thing to do. Examples of actions that might prove motivation, however, could be a history of committing crimes against members of a certain group, or telephone messages sent on a previous occasion that indicate their hostility towards a certain group. This will be considered in more detail in Chapter 4.
Sections 28(2) to (3) clarify that ‘membership’ includes association with members of that group, ‘presumed’ means presumed by the offender and that it is immaterial whether the hostility is also based on a factor other than race or religion.
Section 28(4) states that ‘racial group’ means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins. Section 28(5) states that ‘religious group’ means a group of persons defined by reference to religious belief or lack of religious belief.
We can see, then, that racially aggravated offences are not confined simply to those victims who might be of a separate race to the offender, but also applies to those victims who are targeted due to their citizenship, their national origins, ethnicity or colour.
Additionally, religiously aggravated offences do not simply apply to those victims who hold a religious belief and are so targeted; under this definition, an atheist or agnostic might just as easily be able to avail themselves of the protection of the 1998 Act.
We will analyse key definitions further in Chapter 3.
For now, though, having been introduced to section 28 of the 1998 Act, we move onto the specific statutory offences. These are set out in sections 29 to 32 of the 1998 Act.
Section 29 addresses racially and religiously aggravated assaults. Section 29(1)(a) applies to offences committed under section 20 of the Offences Against the Person Act 1861 (malicious wounding / grievous bodily harm). Section 29(1)(b) covers offences under section 47 of the same Act (assault occasioning actual bodily harm). Section 29(1)(c) covers the offence of common assault. Section 29 provides that a person commits an offence under that section if he commits one of those three assaults, and that assault is racially or religiously aggravated.
All three assaults then attract greater sentences than their counterparts. In addition, all three are ‘either way’ offences (i.e. can be heard in the Crown Court or the Magistrates’ Court). By comparison, the basic version of common assault can only be heard in the Magistrates’ Court.
Section 30 of the 1998 Act creates an offence of racially or religiously aggravated criminal damage. Again, the section provides that a person is guilty of an offence if they commit the basic act of criminal damage under the Criminal Damage Act 1971, and that offence is racially or religiously aggravated for the purposes of the section. The defendant convicted of this offence is liable to a greater sentence than under the basic offence – on conviction on Indictment, he can be imprisoned for a term not exceeding fourteen years, or a fine, or both. Compare this to the basic offence, for which the maximum penalty is ten years’ imprisonment.
Section 31 sets out three racially or religiously aggravated public order offences. In a similar vein to the sections that preceded it, it provides that a person is guilty of an offence if he commits an offence under: (i) section 4 of the Public Order Act 1986 (fear or provocation of violence); (ii) section 4A of the same Act (intentional harassment, alarm or distress); (iii) section 5 of the same Act (harassment, alarm or distress) – and it is racially or religiously aggravated. Once more, the sentences are increased for the aggravated versions of the offences.
Section 31(6) of the 1998 Act specifically provides that, on trial on Indictment for the aggravated versions of section 4 or section 4A of the Public Order Act 1986, the jury may acquit the defendant of the aggravated offence and find him guilty of the basic offence.
Finally, section 32 of the 1998 Act deals with racially or religiously aggravated harassment. This section provides that a person is guilty of an offence if he commits (i) an offence under section 2 of the Protection from Harassment Act 1997 (harassment and stalking); (ii) an offence under section 4 of that same Act (putting people in fear of violence and stalking involving fear of violence or serious alarm or distress) – and it is racially or religiously aggravated. Again, the sentences are increased.
As in section 31, section 32(6) explicitly provides that the jury may acquit the defendant of the aggravated offences and convict him of a basic offence mentioned in the section.
For our purposes, the key part of the Public Order Act 1986 (“the 1986 Act”) is Part III. This Part sets out offences falling under the banner headline: ‘Incitement to Racial Hatred’.
Section 17 of the 1986 Act defines racial hatred:
“In this Part “racial hatred” means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.”
The wording is, as we can see, the same as in section 28 of the 1998 Act above.
The 1986 Act relates to the following broad actions:
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Use of words or behaviour;
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The display of written material;
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Public performance of a play;
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Distributing, showing or playing a recording;
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Broadcasting or including a programme in a cable programme service;
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Possession of inflammatory material.
The 1998 Act makes it an offence to carry out any of these actions if, in doing so, (i) the person intends to stir up hatred on the basis of race, religion or sexual orientation; or (ii) having regard to all the circumstances, hatred on either of those three bases is likely to be stirred up.
Section 18 of the Act provides that it is an offence to use threatening, abusive or insulting words or behaviour, or to display any written material that is threatening, abusive or insulting if (i) the person intends to stir up racial hatred; or (ii) racial hatred is likely to be stirred up.
However, the accused has a statutory defence (under section 18(4) of the 1998 Act) if he can prove that he was inside a dwelling and had no reason to believe that the words, or written material, would be heard or seen by a person outside that or any other dwelling. So it is that the accused is protected from words said within his or another person’s home, provided that he had no reason to believe that the words would spread any further.
Section 29B of the 1998 Act mirrors section 18, aside from the fact that it applies to religious hatred or hatred on the grounds of sexual orientation.
Section 19 of the 1998 Act provides that a person who publishes or distributes material which is threatening, abusive or insulting is guilty of an offence if (i) he intends to stir up racial hatred; or (ii) having regard to all the circumstances, racial hatred is likely to be stirred up thereby. It therefore follows extremely similar lines as section 18 of the same Act.
The accused has a statutory defence to this offence under section 19(2) of the 1998 Act, if he proves that he was not aware of the content of the material and did not suspect, nor had reason to suspect, that it was threatening, abusive or insulting.
Section 29C mirrors section 19 of the same Act, aside from that it applies to religious hatred or hatred on the grounds of sexual orientation.
Section 20 of the 1998 Act provides that any person who presents or directs the performance of a play that involves threatening, abusive or insulting words or behaviour is guilty of an offence if he intends to stir up racial hatred or, having regard to all the circumstances (and, in particular, taking the performance as a whole) racial hatred is likely to be stirred up thereby.
Section 20(2) provides a statutory defence if the person is not shown to have intended to stir up racial hatred. In that case, it is a defence for the accused to prove that he did not know, and had no reason to suspect, that the performance would involve the use of offending words or behaviour; or that he did not know, and had no reason to suspect, that the offending words or behaviour were threatening, abusive or insulting; or that he did not know and had no reason to suspect that the circumstances in which the performance would be given would be such that racial hatred would be likely to be stirred up.
Section 20(3) of the 1998 Act provides some exceptions to the application of the section, such as where a performance is given solely or primarily for purpose of a rehearsal.
Section 29D mimics the offence in section 20, aside from that it applies to religious hatred or hatred on the grounds of sexual orientation.
Section 21 of the 1998 Act creates an offence of distributing, showing or playing a recording of images or sounds that are threatening, abusive or insulting if (i) the person intends thereby to stir up racial hatred; (ii) racial hatred is likely to be stirred up thereby.
There is a statutory defence under section 21(3) if the accused can show that he was not aware of the content of the recording and did not suspect, nor had reason to suspect, that it was threatening, abusive or insulting.
Section 29E mimics this offence, aside from that it applies to religious hatred and hatred on the grounds of sexual orientation.
Section 22 creates an offence of broadcasting or including a programme in a cable programme service involving threatening, abusive or insulting visual images or sounds if (i) he intends thereby to stir up racial hatred; or (ii) having regard to all the circumstances, racial hatred is likely to be stirred up thereby.
Much as with the other offences in this Act, there are statutory defences available should the accused prove that he did not have knowledge, or suspicion, of the inclusion of the programme or the use of offending material.
Section 29F creates the same offence applicable to religious hatred and to hatred on the grounds of sexual orientation.
Finally, section 23 covers the possession of racially inflammatory material – it makes it an offence to possess written material, or recording of visual images or sounds, which are threatening, abusive or insulting, with a view to – essentially – showing or distributing the material, if he (i) intends to stir up racial hatred; or (ii) racial hatred is likely to be stirred up thereby.
There is a statutory defence under section 23(3) where the accused proves that he was not aware of the content of the written material or recording and did not suspect, nor had reason to suspect, that it was threatening, abusive or insulting.
Section 29G creates the same offence in respect of religious hatred or hatred on the grounds of sexual orientation.
The Football Offences Act 1991 (“the 1991 Act”) creates the following offence at section 3:
“3. Indecent or racialist chanting.
(1) It is an offence to engage or take part in chanting of an indecent or racialist nature at a designated football match.
(2) For this purpose—
(a) “chanting” means the repeated uttering of any words or sounds (whether alone or in concert with one more others); and
(b) “of a racialist nature” means consisting of or including matter which is threatening, abusive or insulting to a person by reason of his colour, race, nationality (including citizenship) or ethnic or national origins.”
We can see that, once more, the definition of ‘race’ encompasses colour, race, nationality (including citizenship) or ethnic or national origins. It is also clear that there is no requirement that the chanting be directed at a particular person or group present at the football match; it is enough to prove that the racialist words or sounds were chanted at the football match.
The Ecclesiastical Courts Jurisdiction Act 1860
Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 creates an offence of violent or indecent behaviour in any place of worship that is certified under the Places of Worship Registration Act 1855; this includes mosques and synagogues. The Act also affords those people preaching, or carrying out other religious duties, protection.
Offences Against the Person Act 1861
Section 36 of the Offences Against the Person Act 1861 makes it an offence to use threats or force in order to obstruct or prevent, or try to obstruct or prevent, a clergyman or other minister from officiating in – essentially – their official duties within the church, chapel, meeting house or ‘other place of divine worship’.
Sentencing Uplift
This brings us to those offences that are not provided for in the legislation above, but have nevertheless involved hostility based on race, religion, sexual orientation, gender identity or disability.
It is interesting to note that the statutory offences only address race, religion and sexual orientation (and, in fact, sexual orientation is only provided for in the Public Order Act 1998). There are, then, potentially a number of instances where a crime involving hostility on one of these grounds will have been committed for which there is no specific statutory offence.
Sections 145 and 146 of the Criminal Justice Act 2003 (“the 2003 Act”) provide a broad brush approach to all such offences.
Section 145 of the Criminal Justice Act 2003
Sections 145 of the 2003 Act states:
“145. Increase in sentences for racial or religious aggravation
(1) This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc).
(2) If the offence was racially or religiously aggravated, the court—
(a) must treat that fact as an aggravating factor, and
(b) must state in open court that the offence was so aggravated.
(3) Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or religiously aggravated”) applies for the purposes of this section as it applies for the purposes of sections 29 to 32 of that Act.”
This section therefore:
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Expressly applies only to those offences that are racially or religiously aggravated;
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Explicitly excludes those provided for by sections 29 to 32 of the 1998 Act, set out above;
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Adopts the meaning of ‘racially or religiously aggravated’ under section 28 of the 1998 Act.
Section 146 of the Criminal Justice Act 2003
Section 146 of the 2003 Act deals with hostility on the basis of disability, sexual orientation and transgender identity:
“146. Increase in sentences for aggravation related to disability, sexual orientation or transgender identity
(1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).
(2) Those circumstances are—
(a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
(i) the sexual orientation (or presumed sexual orientation) of the victim,
(ii) a disability (or presumed disability) of the victim, or
(iii) the victim being (or being presumed to be) transgender, or
(b) that the offence is motivated (wholly or partly)—
(i) by hostility towards persons who are of a particular sexual orientation,
(ii) by hostility towards persons who have a disability or a particular disability, or
(iii) by hostility towards persons who are transgender.
(3) The court—
(a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and
(b) must state in open court that the offence was committed in such circumstances.
(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
(5) In this section “disability” means any physical or mental impairment.
(6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.”
This section therefore:
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Expressly applies only to hostility based on sexual orientation, transgender identity or disability;
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Expressly states that it is immaterial whether or not the hostility is also based – to any extent – on any other factor;
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Defines ‘disability’ as physical or mental impairment;
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Clarifies that references to being transgender include references to being transsexual or undergoing, proposing to undergo or having undergone a process – or part of a process – of gender reassignment.
These two sections of the 2003 Act ensure that all offences that involve a hate crime element are subject to an uplift in the sentence imposed, even where they are not specific hate crime offences in and of themselves.
Sentencing Hate Crimes: The Staged Approach
When sentencing a hate crime offence, the Court should follow a ‘staged’ approach – first, consider what the sentence would have been without the element of aggravation, and then consider what the sentence should be with the element of aggravation. This follows the guidance of the Court of Appeal in Kelly and Donnelly [2001] EWCA Crim 170; at paragraph 62:
“… a sentencer should first arrive at the appropriate sentence, without the element of racial aggravation but including any other aggravating or mitigating factors. The sentence should then be enhanced to take account of the racial aggravation …”
Although the Court in that case was concerned with a racially aggravated offence, there would seem to be no reason why that should not extend to all hate crime offences. This guidance was affirmed in Higgins (2009) EWCA Crim 708.
Note that sections 145 and 146 of the 2003 Act also require the Judge, once he or she has determined that an offence falls under those provisions and is therefore aggravated, to announce that the offence is so aggravated. There is no similar requirement in the provisions of the particular statutory offences. This makes sense – after all, the aggravation is made explicit in the title of the offence, and there is no need to require the Judge to reiterate that point.
The Judge should, therefore, be invited to:
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State that the offence is aggravated by virtue of falling under sections 145 or 146 of the 2003 Act (if applicable);
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Announce what the sentence would have been without the hate crime element;
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Announce what the sentence is, having been aggravated to take account of the hate crime element.