The EU Directive on Victims of Crime

On 28th August 2013 by Jennifer Schweppe in hate crime, Uncategorized

The scope of hate crime legislation with respect to victim categories is a perennial one for scholars. Indeed, the question as to whether hate crimes legislation should be introduced at all is a live one in an Irish context. The recent EU Directive establishing minimum standards on the rights, support and protection of victims of crime was adopted on 25 October 2012 and entered into force on 15 November 2012. The Directive sets out the protections which should be afforded to all victims of criminal offences, and Article 22 is of significance in the context of hate crimes. What exactly does the Directive require, and what impact might it have?

Article 22(1) states that, in assessing the needs of victims, an assessment must be carried out to determine if the victim has any particular “protection needs” and the extent to which they would benefit from “special measures” in the course of criminal proceedings “due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.” In this context, Article 22(2) states that the assessment should take the personal characteristics of the victim, the nature of the crime and the circumstances of the crime into account.

Article 22(3) then goes on to state that particular attention should be paid to victims who “have suffered a crime committed with a bias or discriminatory motive, which could notably be related to their personal characteristics.” It goes on to note that, in this regard, victims of hate crime “shall be duly considered.”

In the context of criminal investigations, the “particular attention” to be paid to victims includes the following measures which the Directive states in Article 23(2) should be made available to victims:

(a) interviews with the victim should be carried out in premises designed or adapted for that purpose;

(b) interviews with the victim should be carried out by or through professionals trained for that purpose;

(c) all interviews with the victim should be conducted by the same persons unless this is contrary to the good administration of justice;

(d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.

In the context of court proceedings, the Directive goes on to provide in Article 23(3) that the following measures should be made available to victims:

(a) measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;

(b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;

(c) measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and

(d) measures allowing a hearing to take place without the presence of the public.

The extent to which these measures will impact on the process of prosecuting hate crimes will of course vary from jurisdiction to jurisdiction. The requirements under Article 23(2) would seem reasonably straightforward to implement. However, the requirements under Article 23(3) may be more problematic, particularly those requiring the use of communications technology in the lower courts.

Further, hate crimes scholars will observe that the Directive does not limit the application of hate crimes to particular groups of victims: rather, once a crime is committed with a bias or discriminatory motive related to their personal characteristics the question of specific protection arises. Much has been written recently regarding the proper scope of hate crimes legislation regarding victim categories – see the views of the Law Commission here, the extensive work of Jon Garland on the issue here an my article in the Journal of Hate Studies here. The Directive does not require all hate crime legislation to adopt this broad definition of hate crime. Rather a two-tiered approach to victims of hate-motivated offences might be applied. First, the directive will apply to those victims already covered by domestic legislation (if it exists) – for example, in England and Wales under sections 28-32 of the Crime and Disorder Act and sections 144-146 of the Criminal Justice Act 2003. However, the broadness of the Directive may mean that it is also applicable to victims of a hate crime who a targeted based on a bias which is not included under existing hate crime laws (for example, in England and Wales, age, appearance or gender). For this latter category of victim, the base crime will be prosecuted normally, though the victim may be entitled to the “particular attention” the Directive requires. Whether it is open to a Member State to limit the application of the Directive to only those crimes to which hate crime legislation applies is not clear.

In those jurisdictions without specific hate crime legislation, such as Ireland, the Directive may have more of a significant impact. The Directive once again raises the question of how we treat hate crimes in the criminal law in this jurisdiction. There is no Irish equivalent to the hate crimes legislation in England and Wales, but rather courts have an absolute discretion on whether to enhance the sentence of offenders. This approach has been criticised in the past– see here and here – though the legislature has been slow to act on this increasingly pressing issue. Whether the Directive will have much impact in this regard remains unclear. While the Directive does not require legislation to be introduced which imposes a harsher penalty on the offender, nonetheless, it does require that such victims be treated in a particularly protective manner by the criminal justice system as a whole in the context of the investigation and prosecution of a hate crime. It is certainly open to the legislature to simply require that victims receive such support without any further statutory change. However, I would argue that this is an opportune time for Ireland State to revisit its position on this most pressing issue. Ireland has come under internal and external pressure for its failure to legislate for hate crimes, and the Directive should provide impetus to remedy this situation.

The Directive comes with a time limit: EU Member States have to implement the provisions into their national laws by 16 November 2015. It remains to be seen what the outcome of the Directive will be in the context of hate crimes across the European Union.