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Published online by Cambridge University Press: 02 January 2018
In 2012, the Ministry of Justice asked the Law Commission to examine the case for extending the racially and religiously aggravated offences in the Crime and Disorder Act 1998, so that they also cover disability, sexual orientation and transgender identity. The terms of reference for the project were narrow, and did not include an examination of whether the existing offences are in need of reform. The Commission recommended that before a final decision is taken as to whether the offences should be extended, a full-scale review of the operation of the existing offences should be carried out. This paper contends that, in determining the future of the aggravated offences, consideration should be given to the procedural difficulties that can be encountered during the prosecution stage of the criminal process. The paper highlights a number of significant procedural problems that arise from the structure of the existing aggravated offences. These problems are largely related to alternative charges, whereby the prosecution charge both the aggravated offence and the lesser offence encompassed within it, and alternative verdicts, whereby the jury can convict of the lesser offence if the aggravated element is not proven. This paper argues that the procedural problems, coupled with a failure to properly understand the offences, can lead, and have led, to unfair outcomes. If the offences cannot be prosecuted effectively, they become little more than an empty gesture to those affected by hate crime, and this may be counterproductive. Procedural problems also put defendants at risk of wrongful conviction. The paper concludes that the preferred way forward would be to repeal the racially and religiously aggravated offences and rely on sentencing legislation to deal with hostility-based offending.
The author is grateful to Dr Mark Walters, Catherine Heard and the reviewers for their comments on previous drafts. The author is also grateful for the support of the Centre for Responsibilities, Rights and the Law at the University of Sussex.
1. Burney, E and Rose, G Racist Offences: How is the Law Working? (London: Home Office Research Study 244, 2002) p 17.Google Scholar
2. As originally enacted, the Crime and Disorder Act 1998 included only racially aggravated offences. Religiously aggravated offences were added by the Anti-Terrorism, Crime and Security Act 2001, s 39.
3. Law Commission Hate Crime: The Case for Extending the Existing Offences – A Consultation Paper (Consultation No 213, 2013); Law Commission Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014).
4. Law Com No 348, para 5.102.
5. Ibid, para 5.83.
6. Ibid, para 5.105.
7. See eg Hare, I ‘Legislating against hate: the legal response to bias crime’ (1997) 17 Oxford J Legal Stud 415;CrossRefGoogle Scholar Jacobs, J and Potter, K Hate Crime: Criminal Law and Identity Politics (Oxford: Oxford University Press, 1998);Google Scholar Malik, M ‘ “Racist crime”: racially aggravated offences in the Crime and Disorder Act 1998 Part Ii’ (1999) 62 Mod L Rev 409;CrossRefGoogle Scholar Iganski, P ‘Hate crimes hurt more’ (2001) 45 Am Behav Scient 626;CrossRefGoogle Scholar Hurd, H and Moore, M ‘Punishing hatred and prejudice’ (2004) 56 Stan L Rev 1081;Google Scholar Dixon, B and Gadd, D ‘Getting the message? “New” Labour and the criminalization of “hate” ’ (2006) 6 Criminology & Crim Just 309;CrossRefGoogle Scholar Iganski, P Hate Crime and the City (Bristol: Policy Press, 2008);Google Scholar Gadd, D ‘Aggravating racism and the elusive motivation’ (2009) 49 Br J Criminology 775;CrossRefGoogle Scholar Goodall, K ‘Conceptualising “racism” in criminal law’ (2013) 33 Legal Stud 215;CrossRefGoogle Scholar Hall, N Hate Crime (New York: Routledge, 2013);Google Scholar J Stanton-Ife Extending the Aggravated Offences to Include Disability, Sexual Orientation and Transgender Identity: Theoretical Arguments (2013), available at http://lawcommission.justice.gov.uk/docs/Hate_Crime_Theory-Paper_Dr-John-Stanton-Ife.pdf (accessed 25 June 2014); and Walters, M ‘Conceptualizing “hostility” for hate crime law: minding “the minutiae” when interpreting Section 28(1)(a) of the Crime and Disorder Act 1998’ (2014) 34 Oxford J Legal Stud 47 CrossRefGoogle Scholar.
8. Law Com No 348, para 5.90.
9. Burney and Rose, above n 1, p 17.
10. See eg Mihocic [2012] EWCA Crim 195, discussed below.
11. For example, if an offender is guilty of wounding with intent contrary to s 18 of the Offences Against the Person Act 1861, they must also have committed the lesser offence of wounding contrary to s 20. Another example is the offence of possession of a controlled drug with intent to supply contrary to s 5(3) of the Misuse of Drugs Act 1971, which includes the lesser offence of possession of a controlled drug contrary to s 5(1).
12. See HM Government Challenge it, Report it, Stop it: the Government's Plan to Tackle Hate Crime (2012).
13. It should be noted that the next general election will take place in May 2015. It is highly unlikely that a wider review could be completed by this time. However, it is likely that, even with a change in government, tackling hate crime will remain on the political agenda.
14. Crime and Disorder Act 1998, s 29.
15. Ibid, s 30.
16. Ibid, s 31.
17. Ibid, s 32.
18. See eg DPP v Woods [2002] EWHC 85 (Admin); DPP v Green [2004] EWHC 1225 (Admin).
19. See Walters, above n 7, at 63–70.
20. Ibid.
21. See eg SH [2010] EWCA 1931 (Admin); Jones v DPP [2010] EWHC 523 (Admin); RG v DPP [2004] EWHC 183 (Admin); DPP v M [2004] EWHC 1453 (Admin); DPP v Woods [2002] EWHC 85 (Admin).
22. Walters, above n 7, at 61–63.
23. Crime and Disorder Act 1998, s 28(2). See DPP v Pal [2000] Crim LR 756.
24. Crime and Disorder Act 1998, s 28(2).
25. Ibid, ss 28(4) and 28(5). See also DPP v M [2004] EWHC 1453 (Admin); White [2001] EWCA Crim 216.
26. Rogers [2007] UKHL 8 at [12].
27. DPP v M [2004] EWHC 1453 (Admin); Rogers [2007] UKHL 8.
28. Consultation No 213, paras 3.29 and 3.72; Law Com No 348, paras 4.65–4.89.
29. See eg Lawrence, F Punishing Hate: Bias Crimes under American Law (Cambridge, MA: Harvard University Press, 1999);CrossRefGoogle Scholar Iganski (2008), above n 7.
30. Walters, above n 7, at 72–73.
31. See Chalmers, J and Leverick, F ‘Fair labelling in criminal law’ (2008) 71 Mod L Rev 217.CrossRefGoogle Scholar
32. See Burney, E ‘Using the law on racially aggravated offences’ [2003] Crim L Rev 28 at 35.Google Scholar
33. See Law Com No 348, paras 4.89–4.101.
34. See Law Commission Hate Crime: the Case for Extending the Existing Offences Appendix C – Impact Assessment (Consultation Paper No 213, 2013) para C.61.
35. Criminal Justice Act 2003, ss 145(2)(b) and 146(3)(b).
36. Ashworth, A and Horder, J Principles of Criminal Law (Oxford: Oxford University Press, 7th edn, 2013) p 77.CrossRefGoogle Scholar
37. Criminal Justice Act 2003, s 174(2).
38. Stanton-Ife, above n 7, pp 55–56; Law Com No 348, paras 4.82–4.86.
39. Law Com No 348, para 3.104.
40. Consultation No 213, ch. 3. See also Owusu-Bempah, A ‘Improving sentencing of hate crimes’ (2013) 177 Crim L & Just Weekly 559.Google Scholar
41. Criminal Justice Act 2003, s 145(1).
42. Crown Prosecution Service Racist and Religious Crime – CPS Guidance, available at http://www.cps.gov.uk/legal/p_to_r/racist_and_religious_crime/#a15 (accessed 25 June 2014).
43. Law Com No 348, paras 2.65–2.71.
44. See eg McGillivray [2005] EWCA Crim 604; O'Callaghan [2005] EWCA Crim 317; Sentencing Council Magistrates' Court Sentencing Guidelines (2008) p 178; Anthony and Berryman's Magistrates' Court Guide (2013) para B5.2B; Crown Prosecution Service, above n 42.
45. Taylor, R ‘The role of the aggravated offences in combating hate crime 15 years after the Crime and Disorder Act 1998: time for change?’ (2014) 13 Contemp Issues in Law 76.Google Scholar
46. See eg Druce (1993) 14 Cr App R (S) 691; Davies [1998] 1 Cr App R (S) 380; Canavan [1998] 1 WLR 604.
47. [2011] EWCA Crim 1123.
48. Ibid, at [18].
49. Burney and Rose, above n 1, pp 80–83. See also The Gus John Partnership Race for Justice: A Review of CPS Decision Making for Possible Racial Bias at Each Stage of the Prosecution Process (2003) para 95.
50. Criminal Justice Act 2003, s 144.
51. Crown Prosecution Service Racist and Religious Crime – CPS Prosecution Policy, available at http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html#a30 (accessed 25 June 2014).
52. Law Commission Hate Crime: The Case for Extending the Existing Offences Appendix C – Impact Assessment (Consultation Paper No 213, 2013) paras C.58 and C.63.
53. Ibid, paras C.59 and C.63.
54. Home Office, Office for National Statistics and Ministry of Justice An Overview of Hate Crime in England and Wales (2013).
55. Home Office, Office for National Statistics and Ministry of Justice An Overview of Hate Crime in England and Wales: Appendix Tables (2013) Tables 3.04 and 3.13.
56. Home Office, Office for National Statistics and Ministry of Justice, above n 54, p 37. See also Appendix Table 3.12.
57. Home Office, Office for National Statistics and Ministry of Justice, above n 55, Table 3.12.
58. Home Office, Office for National Statistics and Ministry of Justice, above n 54, p 37.
59. Law Com No 348, para 5.25.
60. Burney and Rose, above n 1, p 82.
61. Law Com No 348, paras 4.177–4.180.
62. [2013] EWHC 547 (Admin).
63. Ibid, at [11].
64. DPP v Gane (1991) 155 JP 846; R (on the application of CPS) v Blaydon Youth Court [2004] EWHC 2296 (Admin).
65. DPP v Gane (1991) 155 JP 846 at 849.
66. Wheeler, R ‘The danger of the double conviction’ (2013) 177 Crim L & Just Weekly 191, at 192.Google Scholar
67. Ibid, at 191.
68. R (on the application of Dyer) v Watford Magistrates' Court [2013] EWHC 547 (Admin) at [12].
69. Crime and Disorder Act 1998, s 31(1)(c).
70. Ibid, ss 31(6), 32(5) and 32(6).
71. Criminal Law Act 1967, ss 6(3) and 6(3A).
72. Criminal Justice Act 1988, s 40.
73. Law Com No 348, para 4.175.
74. [2012] EWCA Crim 195.
75. Ibid, at [17].
76. Coutts [2006] UKHL 39 at [23]. See also Foster [2007] EWCA Crim 2869.
77. Coutts [2006] UKHL 39 at [12].
78. See Leng, R, Taylor, R and Wasik, M Blackstone's Guide to the Crime and Disorder Act 1998 (London: Blackstone, 1998) pp 48–51;Google Scholar Taylor, above n 45.
79. Hansard (HL) 12 Feb 1998, vol 585, col 1280. This suggests that higher sentences are the only reason for the aggravated offences, overlooking other considerations, such as their communicative and denunciatory functions. See Taylor, above n 45.
80. McGillivray [2005] EWCA Crim 604.
81. Taylor, above n 45.
82. Ibid.
83. Mihocic [2012] EWCA Crim 195 at [15].
84. [2007] EWCA Crim 2737.
85. Mihocic [2012] EWCA Crim 195 at [14].
86. Ibid.
87. [2006] EWCA Crim 709.
88. Ibid, at [12].
89. However, in the earlier case of Parry v DPP [2004] EWHC 3112 (Admin), it was held that the demonstration of hostility must occur in the immediate context of the basic offence. In that case, no aggravated offence had been committed where the racial hostility was demonstrated 20 minutes after commission of the basic offence, away from the scene of the basic offence and in the absence of the victim.
90. Babbs [2007] EWCA Crim 2737 at [8].
91. Ibid.
92. Burney and Rose, above n 1, pp 80 and 113.
93. It should be noted that there have been calls to extend hate crime legislation to additional characteristics, such as gender. See Law Com No 348, paras 5.60–5.73.
94. Criminal Justice Joint Inspection Living in a Different World: Joint Review of Disability Hate Crime (2013) p 4; Consultation No 213, paras 3.34–3.38; Law Com No 348, paras 3.6–3.14.
95. Law Com No 348, para 5.102.
96. Ibid, paras 3.49–3.51.
97. O'Callaghan [2005] EWCA Crim 317 at [18].
98. See Newton (1983) 77 Cr App R 13.
99. Underwood [2004] EWCA Crim 2256 at [9].
100. Law Com No 348, para 3.14.
101. Underwood [2004] EWCA Crim 2256 at [11].
102. Law Com No 348, para 3.104.
103. Ibid, paras 3.90–3.95.
