Hierarchies of hate: why we need to extend the Crime and Disorder Act 1998.

On 31st October 2013 by Mark Walters in hate crime and tagged Hate crime law

The recent Law Commission Consultation Paper Hate Crime: The Case for Extending the Existing Offences (outlined in the our last blog) is the first large scale review of hate crime law in England and Wales. The Commission is now currently scrutinizing the large number of responses it has received before it provides its final report early next year. In the main, the Commission must decide whether it will recommend to extend the aggravated offences prescribed under the Crime and Disorder Act 1998 (C&DA) to include ‘hostility’ based on ‘sexual orientation’, ‘transgender identity’ or ‘disability’, and whether new offences of stirring up of hatred based on disability and transgender identity should be incorporated into the Public Order Act 1986. Alternatively, the Commission may simply recommend the status quo by retaining (though slightly improving) the current sentencing provisions set out under sections 145 & 146 of the Criminal Justice Act 2003 (CJA) – these provisions allow judges to enhance an offender’s sentence where he or she is motivated by, or demonstrates, hostility based on the victim’s race, religion, sexual orientation, transgender identity or disability.

In deciding whether to extend the law and/or improve the current sentencing provisions, the Commission must first consider the core principles underlying the Government’s approach to hate crime – as set out in their 2012 Action Plan. Within this Action Plan it states that the Government’s number one aim is to prevent hate crime by challenging the attitudes which underpin it, in addition they want to increase reporting and improve operational responses to hate incidents. Considering these primary aims, it would seem prudent of the Commission to start by asking the following question:

Can ss. 145 & 146 of the Criminal Justice Act 2003 prevent hate crime by challenging prejudice?

In other words, should the Government maintain the status quo, can the current sentencing provisions achieve its primary goal of preventing hate crime? On the face of it this seems highly unlikely. Sentencing provisions (even if somehow improved) do little more than enhance the penalty of an offender. Criminological research shows that increasing the sentence for a particular type of offence has little impact on the overall level of offences that are committed. Part of the reason for this is that very few sentencing remarks will ever reach the public domain (outside of those who attend court) and thus it is doubtful whether any general deterrence of hate crime can be achieved.

Instead, the most likely affect of ss. 145 & 146 is to send more offenders to prison for longer periods of time.  We should remain sceptical about whether this approach will either prevent hate crime or challenge the prejudices which underlie it. Indeed such an approach may actually be counter-productive. For instance not only are offenders who go to prison more likely to reoffend when they come out, but we should be highly sceptical about whether locking someone up in a hyper masculine and hostile environment will ever make them less hateful.

Yet while I remain far from convinced that focusing on sentencing provisions is the best way of addressing hate crime, I do remain hopeful that hate crime can be partly prevented and effectively challenged through the use of the criminal law.  Unlike sentencing provisions, specific offences are much more likely to penetrate the public consciousness. For example, offences such as ABH and GBH have captured the public imagination and most know the seriousness of these offences. Similarly, hate crimes that make it onto the criminal statute books will be much more likely to enter public thinking, gain media attention and become part of the public vernacular. This means that the state is able to convey the immorality of hate in a much more powerful way. In fact, one problem with relying on the sentencing provisions set out in the CJA is that they are only ever applied where the police and the CPS ask the court to take them into account – frequently this does not happen (see for example the recent case of Sheard [2013]). This is because the hate element of an offence becomes secondary to the pursuance of the crime based on the fact that it will not make up part of the actual offence, as prescribed by law.

Some of you may be reading this still thinking, “But surely the C&DA has the same effect that the CJA has – i.e. when all’s said and done it enhances penalties!”, you are of course right, but for me the real potency of the C&DA lies in its denunciatory effects and not its often punitive outcomes. Furthermore, I would assert that the sanction the state provides for hate offenders need not necessarily be a longer prison sentence (though of course there will be some cases where prison is a valid option). Instead the law of hate should be concerned more with sentences that “prevent hate and challenge prejudice”. Rather than sending more offenders to prison, sentences should be “enhanced” by utilising more community-based rehabilitation programmes and restorative justice measures.  Together then, the symbolic aspect of the criminal law when combined with community-based sentences, could help to convey important social disapproval for hate-motivated offences to the community which in turn would help to prevent it.

It is not just the social declaration against hate which the C&DA provides. There is a second, perhaps just as important, message contained within specific hate crime offences. This message is that certain groups in society will be protected from targeted victimisation.  It is, in effect, recognition of the history of prejudice-based victimisation that certain groups have had to endure and that the state is willing to do something about it. This aspect of hate crime legislation is essential to groups who feel vulnerable to abuse and who demand greater protection from it by the state – especially considering that it has been the state itself that has often been the cause of minority group oppression.

This is not to suggest that the Crime and Disorder Act will solve the problem of hate crime in its entirety – in fact it should be noted that there is the concern that the state (and the Law Commission as part of its machinery) may hide behind hate crime laws while doing little else to actively tackle hate crime. Worse still, these laws may actively mask the imposition of policies – such as the recent “Go Home” posters used by the Home Office to combat illegal immigration –which actually fan the flames of hatred against certain minority groups.

Government intentions aside, hate crime laws can and do make a genuine difference by ensuring that the police and other criminal justice agencies sit up and pay attention to a problem which has blighted societies throughout the world for centuries.  We might ask ourselves: Would the police put the time and resources into tackling the problem without a specific offence compelling them to? Could we locate as many hate-motivated offences that we currently do, if the law and its enforcers did not bother taking account of it? Of course it is possible, and currently is possible, but it is much more difficult. It is for all these reasons that I would recommend that the Government extend the Crime and Disorder Act 1998 to include sexual orientation, transgender identity and disability hostilities, ending the current hierarchy of hate-motivations in England and Wales and sending a clear message to society that all hate-motivated offences will be pursued equally and vigorously by the state.

For further reading on hate crime law in England and Wales and the use of alternative sentences see:

Walters, Mark Austin (2013) Conceptualising ‘hostility’ for hate crime law: minding ‘the minutiae’ when interpreting section 28(1)(a) of the Crime and Disorder Act 1998. Oxford Journal of Legal Studies.

Walters, Mark Austin (2013) Why the Rochdale Gang should have been sentenced as ‘hate crime’ offenders. Criminal Law Review (2). pp. 131-144.

Walters, Mark (2013) Restorative approaches to working with hate crime offenders. In: Hate crime. The Policy Press, Bristol. (In Press)

Walters, Mark Austin and Hoyle, Carolyn (2012) Exploring the everyday world of hate victimization through community mediation. International Review of Victimology, 18 (1). pp. 7-24.