By Abenaa Owusu-Bempah, University of Sussex
As part of a drive to tackle hate crime, 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 Commission was not asked to examine whether the existing racially and religiously aggravated offences are in need of reform. In its final report, the Commission recommended that, before a decision is taken as to whether the offences be extended, a full-scale review of the operation of the existing offences be carried out.
If a review is undertaken, it should address questions about the appropriate substantive elements of hate crime offences (what type of conduct do we want to criminalise and against whom?) and the rationale of hate crime legislation (what makes ‘hate crime’ different from other crime? Why should it be treated differently and sentenced more harshly?). But the review should not be limited to these important concerns. Consideration should also be given to the procedural difficulties which can be encountered during the prosecution stage of the criminal process. In other words, to whether the existing racially and religiously aggravated offences can be prosecuted effectively.
The offences aim, amongst other things, to protect certain vulnerable groups, tackle racism and xenophobia, and contribute to social cohesion. However, 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 can also put defendants at risk of wrongful conviction. If this is the case, rather than extending the offences to cover additional characteristics, perhaps they should be repealed.
There are a number of procedural problems arising from the structure of the existing racially and religiously aggravated offences which can prevent effective prosecution. These relate primarily to alternative charges, alternative verdicts and inconsistent verdicts.
Aggravated offences are aggravated versions of pre-existing offences, set out in the Crime and Disorder Act 1998. These pre-existing offences will be referred to as ‘basic offences’. The 11 basic offences which can become aggravated include various forms of assault, criminal damage, various public order offences, and harassment and stalking offences. In order to be convicted of an aggravated offence, the prosecution must prove that the defendant committed the basic offence, and that it was aggravated. The aggravated offences have higher maximum sentences than the basic offences.
A basic offence will become aggravated if there was a demonstration of hostility towards the victim based on their race or religion, or if it was motivated by hostility towards a racial or religious group. So, when an aggravated offence has been committed, a basic offence will also have been committed.
Where there is evidence that an aggravated offence has been committed, the prosecution prefers to charge the accused with both the aggravated and basic versions of the offence. This avoids the problems caused by charging only one of the offences. For example, if only the aggravated offence is charged, and the prosecution can prove that the accused committed the basic offence, but not that is was racially or religiously aggravated, then the accused must be found not guilty. The accused will not be held liable for the basic offence. On the other hand, if the accused is charged with both offences, and the more serious aggravated offence cannot be proved, there is an option to convict of the basic offence.
Yet, charging both offences has created problems. The most significant problem is the potential for charge bargaining. Some prosecutors may be willing to accept a plea of guilty to the basic offence on the condition that the aggravated charge is dropped. Although it is the policy of the Crown Prosecution Service not to accept a plea to the basic offence alone, responses from practitioners to the Law Commission’s consultation, as well as some recently published conviction and sentencing statistics, suggest that this does occur.
Accepting a plea to the basic offence and dropping the charge of the aggravated offence risks creating the impression that hate crime is not taken seriously. Routine ‘charge bargaining’ has the potential to reverse any positive communicative effect of the law. Instead of assuring the public that it is wrong to target individuals because of their personal characteristics and that such conduct will not be tolerated, we could be left with an empty political gesture which is unlikely to influence attitudes or deter potential offenders, and is likely to dishearten, and further marginalise, the very people which the offences are intended to protect.
Where an aggravated offence is tried in the Crown Court, the judge can leave to the jury an alternative verdict. This means that, instead of charging both the basic and aggravated offence, the prosecution need only charge the aggravated offence, and the jury will still be allowed to convict of the basic offence if the aggravated element cannot be proved beyond reasonable doubt. There is no provision for returning alternative verdicts in the magistrates’ court.
Allowing the jury to return an alternative verdict, rather than considering only the aggravated offence, creates risks for the both the prosecution and the defence. For the prosecution, there is a risk that the jury will convict of the basic offence when they otherwise would have convicted of the aggravated offence (in practice, juries can be reluctant to convict defendants of aggravated offences). For the defence, there is the risk that the defendant will be convicted of the basic offence when they otherwise would have been acquitted.
However, the benefits of allowing juries to return alternative verdicts outweigh these disadvantages. The primary benefit is that the defendant is less likely to be wrongfully convicted of the aggravated offence in circumstances where he clearly committed the basic offence, but the aggravated element cannot be proved. If there is no option of returning an alternative verdict, the jury may be tempted to convict of the aggravated offence so that the defendant does not get away with the basic offence, rather than because the defendant actually committed the aggravated offence.
Unfortunately, in practice, judges do not always give the jury the option of convicting of the basic offence instead of the aggravated offence. This means that juries are sometimes left with a difficult choice between either 1) letting the defendant get away with the basic offence, or 2) convicting them of a more serious offence than they committed.
Sometimes a defendant is tried for two or more aggravated offences arising out of the same incident. For example, in the case of Dossett  EWCA Crim 709, it was alleged that the defendant had confronted a parking attendant, shouted at her, including telling her to ‘go back to your fucking country’, grabbed her jacket to see her identification number, and continued to shout and threaten her. He was charged with racially aggravated assault and a racially aggravated public order offence. The words ‘go back to your fucking country’ constituted the evidence of racial hostility for the purposes of both charges. Yet, he was only convicted of the racially aggravated public order offence. Instead of being found guilty of racially aggravated assault, he was found guilty of an alternative charge of basic assault. Dossett appealed against the convictions, arguing that they were inconsistent (either both of the offences had been aggravated or neither had been aggravated). Although the Court of Appeal upheld the convictions, it is difficult to see how Dossett could have been guilty of one of the aggravated offences, but not the other. It is possible that he was under-convicted of the basic assault (i.e. he had actually committed a racially aggravated assault) or over (and wrongfully) convicted of the racially aggravated public order offence (i.e. he was guilty of a basic public order offence, but not the more serious aggravated version). This case is not an isolated incident. For example, the same issue is evident in the more recent case of Mihocic  EWCA Crim 195. Throughout the criminal law, appeals on the ground of inconsistent verdicts are not uncommon.
In large part, these procedural problems stem from the structure of the racially and religiously aggravated offences. Because of this, it is likely that a significant change in the law would be necessary to rectify the problems. However, a more straightforward solution would be to repeal the offences and rely on existing sentencing legislation to deal with the conduct currently covered by the aggravated offences.
Sections 145 and 146 of the Criminal Justice Act 2003 require judges to increase the sentence for any offence (other than an aggravated offence) where there is evidence of a demonstration of hostility, or a hostile motive, on the basis of race, religion, disability, sexual orientation or transgender identity. The judge must declare in open court that he has made this finding of hostility and that he has increased the sentence as a result.
There are concerns that these sentencing provisions are not currently used as rigorously or consistently as they should be, and that they do not have the same symbolic or communicative function as criminal offences. In response to this, the Law Commission has recommended improvements to the operation of the sentencing provisions. These include specific guidance for judges on when and how to apply the provisions, as well as reforms to allow the application of these provisions to show on an offender’s criminal record. If these recommendations are put in place, the sentencing provisions could be applied consistently, and could also encompass the desired symbolic and communicative function of the aggravated offences.
Repealing the aggravated offences could be perceived as a reversal of the progress which has been made over the past two decades to tackle racism and other prejudices. But if procedural problems result in offences which cannot be enforced properly, they become little more than an empty gesture. Procedural problems also create the potential for injustice to those accused of wrongdoing. Hopefully, anxiety about repealing the offences could be reduced through reassurance that the sentencing legislation is still hate crime law and that by eliminating the procedural problems stemming from the aggravated offences, and improving the operation of the sentencing provisions, hate crime can be dealt with more fairly and effectively.
For a more detailed account of the procedural problems associated with the racially and religiously aggravated offences, see A Owusu-Bempah, ‘Prosecuting Hate Crime: Procedural Issues and the Future of the Aggravated Offences’