By Gabriel Princewill-
The Law Society has welcomed proposed reforms that would ensure disabled and LGBT+ victims of hate crime receive the same protection as those targeted because of their race or religion.
The proposals were based on findings by the Commission that prosecutions against hate crimes directed at both LGBT and disabled people were too few.
Following an extensive review of hate crime and hate speech laws, the Law Commission published several recommendations to address inconsistencies in the way hate crime laws treat different people protected characteristics.
People with protected characteristics refer to groups of people historically known to be victims of discrimination, including etnic minorities, gay people, and disabled people. An extension has generally been made to include transgender people too.
The Commission said the review was prompted by a request from the Uk government to undertake a wider and more in-depth review, which now also considers the effectiveness of the available legal mechanisms.
Its 2014 report recommended a broader review of hate crime laws to be undertaken, in the absence of which it recommended an extension of the aggravated offences regime to all five of these characteristics.
The Commission at the time found insufficient evidence to justify an equivalent extension of the “stirring up” hatred offences to the characteristics of disability and transgender identity.
Four years later in 2018, the Uk government asked the commission to undertake a more in-depth review which now considers the efficiency of the law and examine whether any further characteristics should be added to those currently specified.
It recommended that a broader review of hate crime laws be undertaken, in the absence of which it recommended an extension of the aggravated offences regime to all five of these characteristics.
Tasked with the assignment to find out whether any further characteristics should be added to those already in existence, the Commission explained that its new inquiry was aimed at adressing the “the adequacy and parity of protection offered by the law relating to hate crime”.
It said its review was centred on the current range of specific offences and aggravating factors in sentencing, and making recommendations on the most appropriate models to ensure that the criminal law provides consistent and effective protection from conduct motivated by hatred of protected groups or characteristics.
Consultation
At the heart of its consultation is the review of the current range of protected characteristics and identifying gaps in the scope of the protection currently offered. Crucially, the commission said it was calling for a more consistent approach to be pursued across the range of protected groups
The commission said that aggravated offences, which can result in tougher sentences, currently apply only to racial and religious hostility, and recommended extending aggravated offences to cover all existing characteristics in hate crime laws. race, religion, sexual orientation, disability and transgender identity.
Hate Speech Laws
The Commmission said that hate speech laws which are primarily found in the Public Order Act 1986, contain specific offences to counter the spread of inflammatory material designed to incite violence, inflame community tensions, or instil fear among or of particular groups.
Public Order And Communications Offences
It added there are also broader “public order” and “communications offences” in the law of England and Wales, which criminalise certain forms of abusive or grossly offensive speech and content.
”These offences are not limited to the expression of hostility or hatred towards certain groups, but are often prosecuted in this context”, the Commission said.
The Commission added that incitement to racial hatred has been a criminal offence since 1965, but that more limited offences of stirring up hatred in relation to religious belief and sexual orientation were created in 2006 and 2008 respectively, pointing out that prosecution for these offences are low, usually less than 10 per year.
”Yet they remain highly controversial, as does the prospect of extension of these offences to further characteristics”, the commission said.
Disparity Of Treatment
In the report, which elaborated on its overaching objectives in considering the disparity of treatment amongst the five characteristics specified in hate crime laws: race, religion, sexual orientation, disability and transgender identity, it highlighted 62 questions, including:
(1)the proposal of the consolidation of hate crime laws into a single act, the parity of legal protection for the existing five characteristics through the extension of aggravated offences to cover sexual orientation, disability and transgender status;
The Commission also included the creation of new offences of stirring up hatred on the basis of disability and transgender status; and the extension of the “racialist chanting” offence at football matches to cover other characteristics.
The Law Commission explained that it proposed amending the legal test for hate crime laws to include motivation by hostility or prejudice, to reflect the lived reality of disability hate crime, and address challenges in its prosecution.
This specification was to distinguish crimes motivated by premiditated hate, from allegations perceived to be motivated by racism, but which cannot be proved one way or another because they are based on perception.
Inclusive Characteristics
It also proposed the possible inclusion of other characteristics, like age, homelessness; sex workers; alternative subcultures and philosophical belief; and/or the potential for a “residual category” of protection in hate crime laws.
It said the voluminous and diverse range of consultation responses we received in our formal consultation period has ensured thatit has had the benefit of a very wide range of perspectives in shaping our final recommendations.
Law Society president I. Stephanie Boyce said: ‘In our consultation response, we said it was illogical for aggravated offences to only apply to race or religion-based hostility and should include enhanced sentencing provisions on hostility based on transgender identity, disability and sexual orientation.’
The commission proposed adding sex and gender as protected characteristics for the purposes of aggravated offences and enhanced sentencing, considering three potential reform options. However, it concluded that the proposals ‘create more problems than they solve’.
Boyce said: ‘We raised concerns about the suitability of this proposal as it creates problems on how to deal with forced marriage, FGM, domestic abuse and sexual offences, which are predominantly against women.
The prosecution’s already difficult task in proving rape and other sexual offences could be compounded by having to prove gender-based aggravation too. It would further complicate these trials and increase the trauma for victims.’
Instead, the commission says the government should review the need for a specific offence of public sexual harassment”.