The Law Commission is making proposals to reform hate crime laws to remove the disparity in the way hate crime laws treat each protected characteristic – race, religion, sexual orientation, disability and transgender identity. The Commission is also proposing that sex or gender be added to the protected characteristics for the first time.
Hate crime refers to existing criminal offences (such as assault, harassment or criminal damage) where the victim is targeted on the basis of hostility towards one or more protected characteristic. There are also specific hate speech offences: the offences of “stirring up hatred”, and the racist chanting at football matches.
However, a number of issues have been raised over how hate crime laws work in practice. The laws are complex, spread across different statutes and use multiple overlapping legal mechanisms. Not all five characteristics are protected equally by the law, and campaigners have also argued for additional characteristics such as sex/gender to be included.
The Law Commission’s proposals to improve hate crime laws include:
- Adding sex or gender to the protected characteristics.
- Establishing criteria for deciding whether any additional characteristics should be recognised in hate crime laws, and consulting further on a range of other characteristics, notably “age”.
- Extending the protections of aggravated offences and stirring up hatred offences to cover all current protected characteristics, but also any characteristics added in the future (including sex or gender). This would ensure all characteristics are protected equally.
- Reformulating the offences of stirring up hatred to focus on deliberate incitement of hatred, providing greater protection for freedom of speech where no intent to incite hatred can be proven.
- Expanding the offence of racist chanting at football matches to cover homophobic chanting, and other forms of behaviour, such as gestures and throwing missiles at players.
Professor Penney Lewis, Criminal Law Commissioner said:
“Hate crime has no place in our society and we have seen the terrible impact that it can have on victims.”
“Our proposals will ensure all protected characteristics are treated in the same way, and that women enjoy hate crime protection for the first time.”
The current law and criticisms of it
Hate crime laws in England and Wales include multiple, overlapping legal mechanisms. These include aggravated offences, where a more serious form of an offence such as assault, harassment or criminal damage is prosecuted, and enhanced sentences, which require a sentence to be increased because of the hate crime element.
There are also separate offences for stirring up racial hatred, and for stirring up hatred on the basis of religion or sexual orientation. For racial hatred, the behaviour must be “threatening, abusive or insulting.” On the basis of religion or sexual orientation, the words or conduct must be threatening (not merely abusive or insulting).
However, the law does not work as well as it should. For example:
- The complexity and lack of clarity in the current laws can make them hard to understand.
- The laws do not operate consistently in the way that the existing five characteristics are protected in law – for example LGBT and disabled people receive less protection.
- In practice, we have also heard that disability hate crime is particularly difficult to prosecute, as it often takes more subtle forms and can be hard to prove.
There have also been calls for hate crime laws to be expanded to include new protected characteristics to tackle hatred such as misogyny and ageism, and hostility towards other groups such as homeless people, sex workers, people who hold non-religious philosophical beliefs (for example, humanists) and alternative subcultures (for example goths or punks).
Some legal definitions including the definition of “transgender” in the current laws have also been criticised for using outdated language.
The Commission’s proposals in more detail
To ensure that hate crime laws are clear and easy to understand and offer suitable protection to victims, the Law Commission is proposing:
- To add sex or gender to the protected characteristics under hate crime laws. This will enhance protections against crimes based on misogyny.
- To explore the risk of unintended consequences, the Law Commission has asked questions about the implications of this change in the context of sexual offences and domestic abuse, where there is already a well-established set of laws and practices which aim to protect victims.
- Establishing criteria for deciding whether any additional characteristics should be recognised in hate crime laws, with new characteristics receiving the same protections as those currently protected.
- The Commission is also consulting on whether other characteristics and groups such as age, sex workers, homelessness, alternative subcultures (such as being a goth) and philosophical beliefs (such as humanism) should be protected.
- Extending the protections of aggravated offences and stirring up hatred offences so that all of the five currently protected characteristics are treated equally in law. This would include any additional characteristics that are added at a later date such as sex/gender.
- Reforming the stirring up hatred offences 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 stirring up offences would be extended to cover incitement of hatred towards disabled and transgender people, and hatred on grounds of sex/gender.
- Extending the offence of racist chanting at a football match to cover chanting based on sexual orientation. The Commission is also consulting on extending the offence to cover other characteristics and forms of behaviour such as missile throwing and the use of racist gestures.
The consultation is open from 23 September 2020 until 24 December 2020. We want to hear from those who have experienced all forms of hate crime, based on all types of characteristics, as well as experts in the area. The responses we get will help inform our final recommendations to Government which we will aim to publish in 2021.