The Life Cycle of a Hate Crime: Recommendations for effectively combating hate crime across Europe

On 16th May 2018 by Mark Walters in Hate Crime Concept, Hate crime legislation, Hate Crime Policy

Introduction

In 2015 five members of the International Network for Hate Studies from the Czech Republic, England and Wales, Ireland, Latvia and Sweden successfully applied for an Action Grant from the European Commission’s Directorate-General for Justice and Consumers with our project entitled “Life Cycle of a Hate Crime”. The key aim of the project was to examine how hate crimes are being addressed within criminal processes across the EU. More specifically, we wanted to identify best practices in the investigation, prosecution and sentencing of hate crime so that member states can learn from each other, and to more broadly inform the policies of European bodies that are tasked with addressing hate crime.

There are currently several pieces of legislation at the EU-level which are aimed at tackling hate crime. Chief amongst these is Article 4 of the Framework Decision on Combatting Certain Forms and Expressions of Racism and Xenophobia, which states that Member States should “take the necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance or alternatively that such motivation may be taken into consideration by the courts in the determination of the penalties”. Our research looked at the extent to which these measures are being implemented by Member States.

The other significant piece of legislation is the Victim’s Directive which imposes obligations on member states to ensure that there are special measures in place for victims of crimes to protect their needs, and that special attention should be given to victims of hate crime (for e.g. by ensuring that interviews are carried out by specifically trained professionals or measures to avoid unnecessary questioning concerning the victim’s private life).  Again, we wanted to explore the extent to which member states were implementing these procedural protections and safeguards for victims.

Methodology

Each of the jurisdictions started by analysing both domestic and EU policy documents aimed at tackling hate crime. Partners then looked at available secondary (and in one case primary) statistics on reporting numbers, prosecutions numbers and conviction rates. This was combined with case law analysis (where available of course). However, our primary research was really focused on a large scale qualitative interviewing with key justice professionals. In total we interviewed 287 professionals, including judges, lawyers, policy officers and victim advocates. We also interviewed or conducted focus groups with victims and offenders of the justice system. This provided a large body of data which was then coded, analysed and written up into separate national reports. From here we were then able to provide a comparative report, where we outline in detail our findings and in turn recommendations for the EU.

Key findings

We found that all partner jurisdictions to the project asserted compliance with Article 4 of the Framework Decision. However, implementation of the Framework was fragmented and at times deficient. Of greatest concern was that the hate element of criminal offences often ‘disappeared’ or was ‘filtered out’ of the criminal process from the point of recording to sentencing. The hate element of offences most commonly dropped out of criminal justice systems where the police fail to gather sufficient evidence of the hate element, where prosecutors fail to present evidence in court, and where judges fail to consider the hate element at sentencing. Even where the courts have specific sentencing guidelines for hate crime, it is possible for the hate element to be neglected by the courts. Deficiencies in the treatment of hate crime are particularly associated with inadequate resourcing, a lack of specialist prosecutors, and shortcomings in presenting the hate element at prosecution; poor communication between authorities; a lack of training; and the fundamental issue of the construction of legislative provisions, or the lack thereof.

The study showed that laws on the statute books need to be more robustly applied in practice if they are to have the desired outcome of effectively tackling hate crime. We found that the extent to which a hate element is recognised by individual actors in the criminal justice process largely depends first, on the legislative approach to addressing hate crime. In particular, where legislation does not specify the hate motivation as an element of the offence, the hate element is less likely to be addressed at the sentencing stage. Research from England and Wales showed that “racially and religiously aggravated offences” were seen as more serious (than hate crimes dealt with under sentencing provisions only) by justice professionals, and the hate element of the offence was therefore less likely to drop out of the process for these types of crime. Data from Ireland showed that the primary reasons given by participants as to why the hate element of a crime was so poorly addressed at prosecution was that no specific hate crime offences existed. The type of legislation used to combat hate is therefore likely to be key to successfully identifying and sentencing such crime. However, also of significance was the existence of detailed public policies on tackling hate crimes and the extent to which these policies are shared across the criminal justice system.  Both England and Wales and Sweden had established policies on policing and prosecuting hate crimes, and it was unsurprising that both jurisdictions recorded and successfully prosecuted the most hate crimes.

The Victims Directive was also inconsistently applied in practice across the five member states. Sweden had the most comprehensively developed victim support processes and services, and exceeded the requirements of the Directive. England and Wales had also codified the directive and there was evidence that additional support was offered to victims of hate crime. This could be contrasted with Ireland, for example, where only one of the 17 victims interviewed had accessed any victim support services and this individual had learned of the service independently of their engagement with the criminal justice process.

Recommendations

A number of good practices in tackling hate crime were identified by this project, primarily but not exclusively, in those jurisdictions with the most established detailed policies and guidelines which were supported by a body of hate crime legislation. We note in particular that the law has an important declaratory function to play in addressing hate crime, as it symbolises a country’s commitment to challenging prejudice and discrimination, while simultaneously upholding the rights of all groups of people to be free from targeted violence and abuse. We believe that the most effective way that this can be achieved is through specific criminal laws that proscribe hate crimes (though we note that this may not be possible in all EU countries).

We propose that the following measures should be also implemented nationally (full details of each are provided in the comparative report)

• National Action Plans on Hate Crime
• Specialisms in investigation and prosecution
• A common understanding of hate crime across the criminal process
• Victim support through the criminal process
• Data collection by state and civil society organisations

Beyond the national level there are a number of ways in which the EU can help to improve responses to hate crime and to enhance the consistency of both criminal proscription and victim support. Chief amongst these is to develop a common understanding of hate crime. We assert that the EU could usefully adapt the ODIHR definition of a hate crime: that is, that a hate crime is a criminal offence already recognised by the criminal law, which is combined with a hate element. We also recommend that any shared conceptualisation of hate crime be inclusive across a range of protected categories, and that a presumptive, European-wide definition of categories should apply. Drawing together those groups most commonly identified across EU and international human rights instruments with those which have been evidenced by the Fundamental Rights Agency (FRA) as experiencing targeted victimisation, we believe a list of characteristics could be developed that could be presumptively identified by the EU for inclusion under hate crime legislation.

Further measures at the EU-level include:

• EU Action Plan on Hate Crime
• EU analysis of the prevalence and impacts of hate crime
• Evidence informed assessment of compliance

Conclusion

Our research has identified opportunities for the “filtering out” of hate crimes throughout the criminal justice processes in all jurisdictions. The project demonstrated that although the Framework Decision was implemented by most Member States on paper, the operational realities uncovered during the study speak to the need for significant improvements to the prosecution and sentencing of hate crime across the EU. If this is to be achieved, the EU must move to legislate to provide a common definition of hate crime that can be used throughout Europe, and be supported by an EU-wide Action Plan on hate crime that fosters improved monitoring, more expert justice practitioners and specialist training across institutions, as well as the collection of comparable hate crime data across the EU. Only then can we ensure that all Member States of the EU are effectively tackling hate crime and supporting the needs of victims.

 

The full Comparative Report is co-authored by Jennifer Schweppe, Amanda Haynes, and Mark Walters