Parity and clarity: The case for reforming hate crime law

Katharine Knox, our Head of Research and Policy Impact, reports on our recent seminar on legal reform of hate crime.

In EDF’s recent seminar on hate crime, participants identified a particular need for two things in hate crime law: parity and clarity. With a 17% increase in reported hate crime last year, and given the Law Commission’s review into hate crime law starting in 2019, we gathered experts together to consider the priorities for legal reform.

A ‘justice gap’ in hate crime law

Professor Mark Walters, leader of a major national study on legal reform, outlined the huge ‘justice gap’ in how different people experiencing hate crime are treated. Of an estimated 184,000 hate crimes experienced in 2017/18, only about half were recorded by police as hate crimes, resulting in around 14,000 prosecutions, 12,000 convictions and only 7,784 resulted in a sentence uplift due to identity based hostility.

This means a 92% gap between cases receiving police attention and those successfully addressed as hate crimes. These disparities exist across protected characteristics, with particular problems for people experiencing disability hate crime. Here, there is an estimated 98% justice gap, with only 133 disability hate crime cases resulting in uplifted sentences in 2017/18. Meanwhile, age and gender-related hate crime are not currently addressed at all.

No clarity, no parity

Hate crime law is complex and unequal. For race and religious hate crime, the Crime and Disorder Act 1998 provides greater protections, treating many common forms of hate crime as ‘aggravated offences’, with enhanced penalties. Offences concerning sexual orientation, disability and transgender identity can be given enhanced sentences, but in practice, introducing this at sentencing stage can be problematic, creating an apparent ‘hierarchy of hate’, with some identity characteristics better protected than others.

Offences need to demonstrate or be motivated by hostility towards the victim’s (presumed) membership of a group but, as Walters explained, this can be tricky to prove. Judges sometimes lack understanding of the legislation, and jurors can be uncomfortable labelling defendants’ motivation in this way. In addition, the hostility test does not work well in some cases of hate crime – for example, those where disabled people are targeted because of their perceived vulnerability.

A ‘hierarchy of hate’

Speakers from NGOs all highlighted the resulting problems for people experiencing hate crime. Nick Antjoule from Galop pointed to narrow legal definitions of transphobia as a challenge in tackling transphobic hate crime – current definitions fail to take account of gender non-conforming and non-binary groups who experience violence.

Sherrie Smith from Gate Herts highlighted that Gypsy, Roma and Traveller people experience high levels of discrimination; in a recent survey of the British public, 44% of people expressed prejudice/hostility towards Gypsies and Travellers. She spoke of particular problems with social media, including examples of advice posted online about setting fire to Gypsy and Traveller caravans – such incidents have been reported to the police but not treated as hate crimes.

Henrietta Doyle, of Inclusion London, and Ruth Bashall, from Stay Safe East, spoke about the horrific case of Christine Lakinski, a disabled woman attacked and urinated on as she lay dying. As outlined in the 2008 report, Getting away with murder, this crime was not investigated, prosecuted or sentenced as disability hate crime. The law also does not cover targeting disabled people by forcing them to work or stealing their benefits, or cases where offenders take over disabled people’s homes (known as ‘cuckooing’).

The misogyny question

Afternoon discussions covered the sometimes controversial question of whether misogyny should be treated as a hate crime. Questions arose over how this could work alongside existing legal provisions to address violence against women and girls, and participants recognised that some people want a different approach to consider ‘gender’ rather than ‘miosgyny’ in the law.

Sue Fish, former Chief Constable at Nottinghamshire Police and Charlotte Fischer from Citizens UK discussed learnings from Nottinghamshire, where misogyny is already treated as a hate crime. Contrary to fears, this had not led to a deluge of hate crime reports; in the first year there were 97 cases, and there was high satisfaction with the approach across genders. While the police don’t yet have a clear national approach, Sue reported that ten police forces are now looking at treating either misogyny or gender as hate crimes.

A chance to reform hate crime law

Professor David Ormerod, of the Law Commission, recognised the incoherence in the current law and was confident that their new review offers a chance for more holistic legal reform. Their 2014 review and report had called for a fuller legal review of hate crime, and the Commission expressed confidence that the terms of reference this time should support this.

From the day’s discussions, various points of consensus emerged. There was a clear need for parity of treatment of different groups, to account for different equality concerns. Secondly, participants agreed that clarity in the law is needed – potentially through consolidating all hate crime law into one piece of legislation.

EDF will be following up on this work in 2019. See the full presentations from the day here, or sign up to our email list on hate crime for updates

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