Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
This project is complete. We published our final report, Hate Crime: Should the Current Offences be Extended?, on 28 May 2014. We are awaiting a response from Government
What is hate crime?
A crime is recorded by police and the Crown Prosecution Service as a hate crime if the victim or anyone else believes it was motivated by hostility based on a personal characteristic of the victim. The police and CPS record data on hate crimes for five personal characteristics, that is, where the hostility relates to:
- transgender identity
- sexual orientation.
The law responds to hate crime in three ways:
- through aggravated offences contained in the Crime and Disorder Act 1998. They allow perpetrators of certain “basic” offences, such as assault and harassment, to be charged with an aggravated form of the offence if they demonstrated or were motivated by hostility on the basis of race or religion. The aggravated offences carry longer maximum sentences than the underlying or “basic” offences they relate to
- through offences of stirring up hatred contained in the Public Order Act 1986. The offences prohibit certain types of conduct intended or likely to stir up hatred on grounds of race, religion and sexual orientation, and
- through enhanced sentencing under sections 145-146 Criminal Justice Act 2003, where an offence has been committed and the defendant demonstrated, or was motivated by, hostility on the grounds of any of the five protected characteristics.
This project was referred to the Law Commission by the Ministry of Justice. Our terms of reference asked us to look only at:
- extending the aggravated offences in the Crime and Disorder Act 1998 to apply equally to all five protected characteristics, and
- extending the stirring up of hatred offences under the Public Order Act 1986 to apply equally to all five protected characteristics.
We also examined the current “enhanced sentencing” regime applicable to cases where hostility is established, as this already applies to all five characteristics and involves similar elements to the aggravated offences.
Our main recommendations
The enhanced sentencing system is a potentially powerful weapon in the fight against hate crime. Its communicative power lies in the requirement that the judge declares in open court that the offender’s sentence has been increased because the hate element has made the offence more serious. But it is being under-used and no adequate record is made of cases where it has been applied. If reformed, it could be an effective response to crimes involving hostility based on transgender identity, sexual orientation and disability. We recommend two reforms that we believe will help the system of enhanced sentencing achieve its full potential:
- New guidance from the Sentencing Council on the sentencing approach in hate crime cases.
- Every time enhanced sentencing is applied, this should be recorded on the offender’s criminal record in the Police National Computer (PNC) so that the record will show the offence was aggravated by hostility, just as it would show a conviction for an aggravated offence.
These reforms should be introduced whether or not aggravated offences are extended.
The aggravated offences
In principle, the aggravated offences should apply equally to hostility based on race, religion, transgender identity, sexual orientation and disability. The current inequality would have been a sufficiently strong reason to recommend the immediate extension of the offences, were it not for the serious concerns some consultees have raised about problems with the aggravated offences and unnecessary complexities in their form and operation. Alterations would also need to be made to ensure the “basic” offences listed were suitable for tackling hate crime against disabled, LGB and transgender people. As our terms of reference allowed us to consider only extending the offences in their current form, we could not look at these questions in this project.
- Therefore, prior to any extension of the offences, we recommend a full-scale review of their operation. Such a review should examine all the available data to establish whether such offences – and the enhanced sentencing system – should be retained in their current form or amended.
- If our recommendation for a wider review is not supported by Government, we recommend in the alternative that the aggravated offences be extended to disability, sexual orientation and transgender identity.
The stirring up offences
Although we consider there would be a case in principle for creating new offences of stirring up hatred on grounds of disability or transgender identity, we have not been persuaded of the practical need to do so. The consultation produced no clear evidence of conduct or material intended or likely to stir up hatred on grounds of transgender identity or disability. New offences of stirring up hatred on the grounds of disability and transgender identity would rarely, if ever, be prosecuted, and their communicative or deterrent effect would therefore be negligible. Criminalisation might also inhibit discussion of disability and transgender issues and of social attitudes relating to them. For these reasons we do not recommend extending these offences.
Area of law
Professor David Ormerod QC