The police and the Crown Prosecution Service define hate crime as any crime perceived to have been motivated by hostility or prejudice towards race, religion, disability, sexual orientation and gender reassignment. However, it has been identified that the latter three are not wholly protected by the criminal law.
For example, a person may have committed grievous bodily harm (GBH) as they feel hostility towards a transsexual victim. Under Sections 145 and 146 of the Criminal Justice Act 2003, a judge can use enhanced sentencing as the offence was carried out under the police and CPS’s definition of a hate crime. The offender will be prosecuted for the offence, however, it will not be considered a hate crime in law.
This is because the law does not currently criminalise hate crime for disability, sexual orientation or gender reassignment.
In the civil law, the Equality Act 2010 was introduced to consolidate all previous anti-discrimination legislation. It sets out nine protected characteristics, which include: disability, sexual orientation and gender reassignment. This means a person may make a discrimination claim within the civil law, for example if they feel they have not been offered employment because of the characteristic they hold.
It has been recognised that the same level of protection is needed within the criminal law to prevent hate crimes directed towards people with these characteristics.
In March 2012, the government launched a three year action plan on hate crime. The aims of the plan are to prevent hate crime, increase access to support and improve operational response.
As a result of the plan, the Law Commission have recently released a consultation paper entitled ‘Hate Crime: The Case for Extending the Existing Offences’. The consultation period is running from June 2013 to September 2013 and sets out proposed reforms in the three targeted areas. The Law Commission intends to release a report of the findings of the consultation in spring 2014.
The significance of the consultation paper is that if the proposals are implemented, the law could develop to protect the characteristics of disability, sexual orientation and gender reassignment.
The Ministry of Justice has asked the Law Commission to consider two key changes directed towards the two sets of hate crime offences.
Firstly, the Crime and Disorder Act 1998 sets out offences that, if aggravated, are considered to be hate crimes. These aggravated offences are only punishable if motivated by race or religion and a higher sentence will be given if this is found to be the case. The Law Commission have proposed in the paper that the aggravated offences should also cover disability, sexual orientation and gender reassignment.
Secondly, the Public Order Act 1986 sets out ‘stirring up hatred’ offences which criminalise the stirring up of hatred on the grounds of race, religion and sexual orientation. It is a point of debate as to why sexual orientation is covered under this set of offences enacted 12 years previously, although it is not covered by the aggravated offences in the 1998 Act. However, it is proposed that the 1986 Act should develop to include disability and gender reassignment.
The paper identifies many advantages of adding the three characteristics to all hate crime offences.
Firstly, it may encourage victims and witnesses to report hate crimes of any nature. With statistics, initiatives can be introduced to prevent hate crime, such as educational talks in schools. Knowing how often hate crimes occur and for what reasons enables preventative measures to be taken. In this way, enabling these three characteristics to become law could eventually act as a deterrent.
As well as this, if the public understood that hate crime against the three characteristics was illegal, this could also act as a deterrent. It could be argued that the ordinary man would never commit a hate crime anyway. However, it means that offences such as common assault, which can simply be committed through words, would be classed as an aggravated offence. This entitles holders of a vulnerable characteristic to be placed on the same level as those without and helps justice to be served.
This is all very well, but the question can still be raised as to why more characteristics have not been protected against hate crime.
While including disability, sexual orientation and gender reassignment could prove to be of great benefit, other characteristics, groups and subcultures are still not being offered the same protection.
This is hugely important in our diverse and pluralistic society. Judges and law-makers have been described in various legal textbooks as ‘male, stale and pale’, invoking the idea that they fail to create laws shaped around current needs and perspectives. However, recent changes in the law, such as gay marriage becoming legal, have proved that England and Wales are capable of moving with the times.
For example, the aggravated offences within the Crime and Disorder Act 1998 came as an indirect response to the murder of black school boy Stephen Lawrence. In 1993, Lawrence was walking along a street with his friend when they were attacked. Lawrence was stabbed twice and died as a result. Alongside this, there was a fight within the civil law that the police were institutionally racist as they seemed not to assume that a white person would have stabbed Lawrence. One of Lawrence’s killers, who was not convicted of his murder until 2012 after a long and arduous process, had been caught on surveillance in his flat in 1994 being overtly racist.
However, it seems the law is not always prepared to change to respond to dramatic events.
In 2007, Sophie Lancaster was walking through a park with her boyfriend. Both were dressed as ‘goths’, wearing alternative clothing with dyed hair and piercings. They were attacked for this reason by a group of teenagers and were taken to hospital, where Sophie later died. This attack did not fall under the legal definition of a hate crime, and still won’t, even if the Law Commission’s proposals in the paper are implemented. It can be identified from the paper that, at present, there is no intention of including more characteristics in hate crime law.
It could be said that the law makers are attempting to move away from taking a traditionalist perspective where morality has no input in the justifications of creating law. Instead, it seems a moralistic approach is being taken as law makers are increasingly saying that they are seeking equality for all, both criminally and civilly. Equality means that all people are treated equally. However, incorporating the proposals will still not provide protection for everybody, like Sophie Lancaster.
If the proposals are implemented, offenders will be punished according to hate crime law. While this is clearly a step in the right direction, the next point of action should be to create absolute equality and punish hate crimes directed towards any vulnerable characteristic.