Hate crime laws: Final report [2021] EWLC 402 (December 2021)


Law Commission

Reforming the law

Hate crime laws: Final report

HC 942


Law Com No 402


Law

Commission

Reforming the law

Law Com No 402

Hate Crime Laws

Final Report

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Ordered by the House of Commons to be printed on 6 December 2021

HC 942

© Crown copyright 2021

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The Law Commission

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Green, Chairman

Professor Nick Hopkins

Nicholas Paines QC

Professor Sarah Green

Professor Penney Lewis

The Chief Executive of the Law Commission is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

The terms of this report were agreed on 2 December 2021.

The text of this report is available on the Law Commission's website at

http://www.lawcom.gov.uk.

Contents

Page

The Law Commission’s review

Other important reviews

Structure of this report

Acknowledgments

Introduction

Legislative development in England and Wales

Aggravated Offences

Enhanced Sentencing

Assaults on emergency workers

Racialist chanting at football matches

Offences of Stirring Up Hatred

Other Jurisdictions

Introduction

The basis on which characteristics should be selected

The continued specification of characteristics

Criteria to guide selection of characteristics

Conclusion following consultation

Introduction

Race

Religion

Sexual orientation

Transgender and gender diverse identities

Disability

Association with protected groups

Introduction

Background

The consultation paper

Consultation questions and analysis of responses

Analysis of consultation responses

Options for reform

Option 1 - full recognition of sex or gender on the same basis as other characteristics

Option 2 - partial recognition of sex of gender, with certain offences and contexts excluded

Option 3 - no recognition for sex or gender in either aggravated offences or enhanced sentencing

Advantages and disadvantages of the options for reform

Comparing these options in the light of consultation responses

Conclusion

Introduction

The case for recognising age in hate crime laws

Applying the demonstrable need criterion to older people

Additional Harm

Suitability

Consultation

Demonstrable need

Additional harm

Suitability

“Older people” or people of all ages

Conclusions following consultation responses

CHARACTERISTICS

Introduction

Sex workers

Alternative subcultures

Homelessness

Philosophical beliefs

SENTENCING

Introduction

Current law

Retention of the dual model

Parity of characteristic protection for aggravated offences

Choice of aggravated offences

Changes to maximum penalties for aggravated offences

Hostility towards more than one characteristic

Should there be a more flexible approach to characteristic protection for enhanced sentencing?

The relationship between aggravated offences, enhanced sentencing and the base offences to which they relate

ENHANCED SENTENCING

Introduction

Current law

The hostility test and other legal models

Should the legal test be the same for enhanced sentencing and aggravated offences?

The demonstration limb

The motivation limb

CHAPTER 10: OFFENCES OF STIRRING UP HATRED

Introduction

Current law

Should the existing stirring up offences be retained?

The Legal Test for the Stirring Up Offences

Should the stirring up offences cover additional characteristics?

The Scope of the Offences

The Dwelling Exception

Written material and images

Dissemination and possession of inflammatory hate material

Consultation

Plays

Protections and Exclusions

Freedom of Speech protections

Consultation

The freedom of expression clauses for religion and sexual orientation

Freedom of expression: race, countries and governments

Freedom of expression: gender identity

Freedom of expression: disability

Freedom of expression: sex/gender

Other Exclusions

Consent to Prosecution

Introduction

The offence

Consultation paper

Retention of the current offence

Extension to cover other characteristics

Extension to cover gestures and missiles

Travel to matches

Conclusion

A HATE CRIME ACT

Introduction

A Commissioner for countering hate crime

A Hate Crime Act

Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person's disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity.4

THE LAW COMMISSION’S REVIEW

Our terms of reference

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; and

scope of the protection currently offered, and making recommendations to promote a consistent approach.

and gender characteristics, or hatred of older people or other potential protected characteristics should be classified as hate crimes, with reference to underlying principle and the practical implications of changing the law;

and to make recommendations on whether they should be extended or reformed;

Background to the review

Our consultation paper

20 of the most important questions. The detail of the provisional proposals made in the consultation paper will be outlined again throughout this report, but some of the main provisional proposals and issues we raised were:

communications offences; and

parity across all characteristics.

Consultation responses

Our final recommendations

OTHER IMPORTANT REVIEWS

Recent developments in Scotland, Northern Ireland and the Republic of Ireland

The Law Commission’s review of Harmful Online Communications

STRUCTURE OF THIS REPORT

acknowledge the significant harm caused by both elder abuse and child abuse, but conclude that hate crime laws are unlikely to be an effective response to these concerns, and therefore do not recommend the inclusion of this characteristic in hate crime laws.

ACKNOWLEDGMENTS

INTRODUCTION

LEGISLATIVE DEVELOPMENT IN ENGLAND AND WALES

Timeline

1965: Race Relations Act 1965 section 6: incitement to racial hatred.

1986: Public Order Act 1986, sections 18 and following: stirring up racial hatred.

1998: Crime and Disorder Act 1998: racially aggravated forms of certain offences (assault, criminal damage, public order, harassment); enhanced sentences for racial hostility.

2001: Anti-terrorism, Crime and Security Act 2001: amended Crime and Disorder Act 1998 to include religiously aggravated forms and enhanced sentences for religious hostility.

2003: Criminal Justice Act 2003 sections 145 to 146: enhanced sentences for racial or religious hostility (replacing existing provisions), disability or sexual orientation (new); enhancement when setting minimum custodial term for murder motivated by or the offender demonstrating hostility on the basis of race, religion or sexual orientation.

2006: Racial and Religious Hatred Act 2006: amended Public Order Act 1986 to include stirring up religious hatred.

2008: Criminal Justice and Immigration Act 2008: further amended Public Order Act 1986 to include stirring up hatred on ground of sexual orientation.

2012: Legal Aid, Sentencing and Punishment of Offenders Act 2012: amended Criminal Justice Act 2003 to include enhanced sentences for offences motivated by or the offender demonstrating hostility towards the victim being transgender, and when setting the minimum term for murder motivated by or the offender demonstrating hostility on the basis of disability or transgender identity.

2020: Sentencing Act 2020, which contains the Sentencing Code: repealed and replaced the enhanced sentencing provisions contained in the Criminal Justice Act 2003.

AGGRAVATED OFFENCES

The Crime and Disorder Act 1998

The offences which can be aggravated

Hostility

Limb (a): “Demonstrates hostility”

What constitutes a demonstration of hostility?
When must hostility be demonstrated?
Demonstration must be towards an identifiable victim

Limb (b): “Motivated by hostility”

What constitutes motivation?
How is motivation proved?

Motive can be established by evidence relating to what the defendant may have said or done on other occasions or prior to the current incident. In some cases, background evidence could well be important if relevant to establish motive, for example, evidence of membership of, or association with, a racist group, or evidence of expressed racist views in the past might, depending on the facts, be admissible in evidence.

Need a victim experience the hostility which motivated the defendant?

Matters common to limbs (a) and (b)

Presumed membership and membership by association
Hostility based partly on other factors
Meaning of “racial group”

The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia. Their essence is the denial of equal respect and dignity to people who are seen as “other” .. This is just as true if the group is defined exclusively as it is if it is defined inclusively.65

Meaning of “religious group”

a spiritual or non-secular belief system. which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives. [it] may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science.67

Alternative verdicts and alternative charges
Sentencing

Section No

Offence

Maximum Penalty Non-Aggravated

Maximum Penalty Aggravated

OAPA, s 20

Malicious wounding / grievous bodily harm

5 years

7 years

OAPA, s 47

Actual bodily harm

5 years

7 years

CJA, s 39

Common assault

6 months

2 years

CDG, s 1

Criminal damage

10 years

14 years

POA, s 4

Fear or provocation of violence

6 months

2 years

POA, s 4A

Intentional harassment, alarm or distress

6 months

2 years

POA, s 5

Harassment, alarm or distress

£1,000 fine

£2,500 fine

PHA, s 2

Harassment

6 months

2 years

PHA, s 2A

Stalking

6 months

2 years

PHA, s 4

Putting people in fear of violence

10 years

14 years

PHA, s 4A

Stalking involving fear of violence or serious alarm or distress

10 years

14 years

Key:

OAPA: Offences Against the Person Act 1861

CDG: Criminal Damage Act 1971

54 R (Dyer) v Watford Magistrates’ Court [2013] EWHC 547 (Admin), (2013) 177 Justice of the Peace 265.

PHA: Protection from Harassment Act 1997

CJA: Criminal Justice Act 1988

POA: Public Order Act 1986

ENHANCED SENTENCING

This is subject to subsection (3).

Development of the enhanced sentencing regime

Evidence of hostility for the purposes of enhanced sentencing

Meaning of racial and religious hostility

Meaning of “disability”

Meaning of “sexual orientation”

Meaning of “transgender identity”

Presumed membership and membership by association

The approach to sentencing under section 66

General aggravating factors under the Sentencing Code

Specific provision for murder

Aggravating factors

ASSAULTS ON EMERGENCY WORKERS

RACIALIST CHANTING AT FOOTBALL MATCHES

OFFENCES OF STIRRING UP HATRED

Racial hatred

The Race Relations Act 1965
The Race Relations Act 1976

merely an embarrassment to the police. Hedged about with restrictions (proof of intent, requirement of the Attorney-General's consent) it is useless to a policeman on the street.126

5A (1) A person commits an offence if—

in a case where, having regard to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain by the matter or words in question.

2.101 Unlike the 1965 provision, it was sufficient that racial hatred was likely to be stirred up; there was no requirement that the accused intended to do so. However, subsection (3) provided that it was a defence if the accused was not aware of the content of the written matter in question and neither suspected, nor had reason to suspect, that it was threatening, abusive or insulting.

2.102 In the second reading debate, the Home Secretary, Roy Jenkins, explained that the requirement of intention was removed because section 8 of the Criminal Justice Act 1967 abolished the presumption that a legal person intends the natural and probable consequences of his act. Therefore, to a large extent, the change merely restored the position to what it was when the offence was created in 1965.

2.103 The 1976 Act also amended the definition of racial hatred to include nationality and citizenship, reversing the House of Lords’ ruling in Ealing LBC v Race Relations Board 127that “national origins” did not encompass nationality.128

The Public Order Act 1986

2.104 The present provisions on stirring up hatred are contained in the POA 1986, which was the product of a comprehensive reconsideration of the POA 1936. The 1986 Act followed the recommendations in our 1983 Public Order Report.129

Religious hatred

Anti-Terrorism, Crime and Security Act 2001

2.113 Following the attacks of 11 September 2001, the Government tabled measures in the Anti-Terrorism, Crime and Security Bill to extend the offences in sections 17 to 23 to cover religious hatred. This received criticism within Parliament, and from Muslim groups, which, having lobbied for the extension, were troubled by its inclusion in a Bill concerning terrorism.

Racial and Religious Hatred Act 2006

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Hatred on the ground of sexual orientation

Criminal Justice and Immigration Act 2008
The amendment introducing protection for freedom of expression

For the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening.

Hatred on the ground of transgender status

2.124 In 2008, in the House of Commons committee debates on the Criminal Justice and Immigration Bill, an amendment was proposed adding offences of stirring up hatred on the ground of transgender status.145 The amendment was not debated and was withdrawn.

Conduct covered by the offences

Section 19(b) - publishing written material: “In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.”

Section 21(3) - distributing, showing or playing a recording: “it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.”

Definitions

Meaning of “hatred”
Meaning of “racial hatred”
Meaning of “religious hatred”
Meaning of “hatred on the grounds of sexual orientation”

2.137 Unlike the enhanced sentencing provisions in section 66 of the Sentencing Act 2020, where sexual orientation is not defined, “hatred on the grounds of sexual orientation” is defined as “hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both)”.160

Protection of freedom of expression

Religious belief

2.138 The POA 1986 contains a wide protection for comment, criticism and debate on religious beliefs and practices, including comic treatment amounting to ridicule. The wording of this provision is as follows:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.161

2.139 There are no reported cases interpreting this provision, and prosecutions under the religious hatred provisions are rare.

Sexual conduct or practice

2.140 As we noted at 2.122, there is similarly wide protection for the criticism of sexual conduct or practice, and of same sex marriage, in section 29JA:

In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.

In this Part, for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred.162

2.141 As with religious hatred, in the absence of appellate judicial interpretation, it is hard to assess the scope of this free speech provision. However, there have been successful prosecutions for the offence of stirring up hatred on the ground of sexual orientation.163

Dwelling exemption

2.142 The POA 1986 extended the stirring up racial hatred offences to the private sphere. However, the POA 1986 contains an exemption where words or behaviour are used or written material displayed within a dwelling, provided that they cannot be seen or heard outside that or another dwelling, 164or the defendant had no reason to believe that they would be heard or seen from outside that or any other dwelling.165

2.143 Similar protections were later incorporated into the legislation on stirring up religious hatred and hatred on grounds of sexual orientation.

2.144 This exception also applies to the POA 1986 offences of using threatening, abusive or insulting words or behaviour with intent to put a person in fear of violence, or to provoke violence, or causing a person harassment, alarm or distress.166

Procedural matters

Attorney General’s consent

2.145 For all the stirring up offences, the Attorney General must consent to bring a prosecution.167 The Attorney General applies the ordinary principles of sufficiency of evidence and public interest (which will already have been considered by the CPS) and acts independently of Government. A former Attorney General has described the consent requirement as “an important filter” against vexatious and unmeritorious cases and has said that in considering whether to consent, the Attorney General is “required as a public authority to act in accordance with the Human Rights Act and with Convention rights”.168 However, some critics have argued that the requirement for consent has unduly limited the number of prosecutions brought.169

Penalties and sentencing guidelines

2.146 For all six forms of the stirring up hatred offences, and across the three forms of hatred, the penalties are the same. Upon conviction on indictment, the maximum is seven years’ imprisonment or a fine, or both. Upon summary conviction, the maximum is imprisonment for a term not exceeding six months, a fine not exceeding the statutory maximum, or both.155

2.147 The Sentencing Council guidelines for these offences are based on three levels of culpability for racial hatred and two for religion or sexual orientation. 170High culpability reflects a person using a position of trust, authority or influence; intention to incite serious violence; or persistent activity. Lesser culpability is reserved for cases under the racial hatred offence where the prosecution has proven not that the defendant intended to stir up hatred, but that hatred was likely to be stirred up (such cases fall outside the scope of the offences relating to religious hatred and hatred on grounds of sexual orientation which require proof that the defendant intended to stir up hatred). The medium culpability category is for all other cases. The higher level of harm is for material which directly encourages activity which threatens or endangers life or has widespread dissemination. Other material constitutes a lesser level of harm.

2.148 The sentencing guidelines give a range from a low-level community order or one year’s custody for a lesser harm / lesser culpability offence to three years’ custody for a high culpability / higher harm offence. Aggravating and mitigating factors can then be taken into account to raise or lower the sentence. For example, in R v Bitton, 171the Court of Appeal held that a sentence of four years’ imprisonment would have been appropriate given that the course of offending involved repeated exhortations to kill black people and Muslims, but reduced it to two years and eight months to reflect an early guilty plea. In R v Davison,172 the Court of Appeal held that a sentence of four years’ imprisonment imposed following a conviction for three offences of publishing material with intent to stir up racial hatred, was not manifestly excessive given the nature of the offences and the need to deter others.

Jurisdiction

2.149 Cases involving activity over the internet may cause jurisdictional difficulties. The principle adopted by the Court of Appeal is that where a substantial measure of the conduct constituting a crime takes place in England and Wales, the courts have jurisdiction (unless comity requires otherwise).173 Following the decision in R v

Burns, 174it appears clear that it is not necessary that the intended or likely target of the stirring up of hatred be located within England and Wales. 175Mere use of a foreign web server to upload content prepared in England and Wales, and intended for a domestic audience, does not prevent prosecution here.176 However, the case law does not resolve the position regarding material intended or likely to incite racial hatred in England and Wales but created elsewhere.177

OTHER JURISDICTIONS

2.150 Hate crime laws have not developed uniformly across the United Kingdom, especially since devolution to the Scottish Parliament and Northern Ireland Assembly. This enables us to compare the experience of England and Wales with the other jurisdictions within the UK. We also consider recent developments in Ireland at from paragraph 2.203.

2.151 At paragraphs 2.82 to 2.122 of the consultation paper we explore in detail the approaches taken in other common law jurisdictions, namely the United States of America, Canada, Australia and New Zealand.

Scotland

2.152 Scotland reviewed its own hate crime laws in an extensive project announced in January 2017 by the Scottish Government. Its Chair, Lord Bracadale, published his final Report on 31 May 2018.178 The Hate Crime and Public Order (Scotland) Bill,179 which sought to implement many of Lord Bracadale’s recommendations, was debated in the Scottish Parliament and the Bill became law on 23 April 2021.180

2.153 Prior to the Hate Crime and Public Order (Scotland) Act 2021, the offences of stirring up racial hatred, contained in sections 18 to 22 of the POA 1986, applied equally across England, Wales and Scotland. However, there was no equivalent offence in Scotland for religious hatred or hatred on grounds of sexual orientation. The CDA 1998, which contains the racially and religiously aggravated offences applicable to England and Wales, also contained provision for the racial aggravation of offences in Scotland, in section 96.

2.154 These offences preceded Scottish devolution. Since 1999, criminal justice is a devolved matter and while the Westminster Parliament has the right to legislate, it will not normally do so without the consent of the Scottish Parliament.

2.155 Sentencing enhancement was provided for in Scotland in cases of religious aggravation by section 74 of the Criminal Justice (Scotland) Act 2003. The Offences (Aggravation by Prejudice) (Scotland) Act 2009 was later enacted, 181which provided for sentence enhancement in respect of crimes aggravated by prejudice against disability, 182sexual orientation 183and transgender identity.184 However, unlike in England and Wales, there are no offences which attract a higher maximum penalty.

2.156 Scotland’s laws adopted (and continue to use) a legal test similar to that in England and Wales, though different terminology is used. Under these laws the test is satisfied where the offender “evinces... malice and ill-will based on the victim’s membership (or presumed membership) [of a protected group, or] the offence is motivated (wholly or partly) by malice and ill-will towards [members of the protected group]”.185

Lord Bracadale’s recommendations in 2018

2.157 Lord Bracadale’s final report recommended an enhanced sentencing regime that could apply to any offence and maintained demonstration of, and motivation by, hostility as the “thresholds”.186

2.158 Lord Bracadale also recommended enacting “stirring up of hatred” offences extending to all protected characteristics, including any new protected characteristics. He also recommended that the elements of the offence be the same regardless of the characteristic.187

2.159 Lord Bracadale recommended recognising both gender 188and age189 as protected characteristics. He also considered the addition of protected characteristics of immigration status, socio-economic status and Gaelic speaking, but did not recommend that any of these groups be covered.190

2.160 Separately from the hate crime regime, Lord Bracadale also recommended the creation of offences involving exploiting vulnerability which would carry an enhanced sentence.191

2.161 On 14 November 2018, the Cabinet Secretary for Justice and Cabinet Secretary for Communities launched a public consultation on hate crime legislation in Scotland 192in response to recommendations made by Lord Bracadale.

The Hate Crime and Public Order (Scotland) Act 2021

2.165 Part 1 of the Act is titled “Aggravation of offences by prejudice”. It provides that a criminal offence is aggravated if either: at the time of committing the offence, or immediately before or after doing so, the offender demonstrates malice and ill-will towards the victim, 195or the offence is motivated (wholly or partly) by malice and ill-will towards a group of persons based on the group being defined by reference to a listed characteristic.196

2.166 The listed characteristics consist of the five already protected characteristics (race, religion, disability, sexual orientation and transgender identity) as well as a new characteristic: age, and the separate listing of “variations in sex characteristics”, which had previously been captured within the Scottish definition of transgender identity.197

2.167 Lord Bracadale had recommended that the language of “evincing malice and ill-will” should be changed to “demonstrating hostility”, so that it could be more easily understood in respect of the operation of the threshold. 198The Act maintains the existing threshold, of malice and ill-will, but has changed the language from “evinces” to “demonstrates”.199

2.168 Lord Bracadale also recommended that the statutory aggravations should apply where hostility based on a protected characteristic is demonstrated in relation to persons who are presumed to have the characteristics or who have an association with that particular identity. 200The Act provides that all of the hate crime statutory aggravations apply in relation to people who are presumed to have the characteristic.201 It remains the case that the maximum penalty available to the sentencer for the offence remains unchanged.

2.169 Part 2 of the Act provides for a specific offence of racially aggravated harassment.202 This repeals and replaces the existing standalone offence of racially aggravated harassment contained in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995.

2.170 Lord Bracadale recommended that section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed.203 He was of the view that the offence was no longer needed to meet the aims it was intended to achieve when created, particularly as the offence of threatening or abusive behaviour in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 provided an alternative route to target such behaviour.204

2.171 Lord Bracadale recommended that stirring up of hatred offences should cover each of the protected characteristics, including any new protected characteristics.205

2.172 Part 3 of the Act creates offences of stirring up hatred against a group of persons based on the group being defined by reference to a listed characteristic. The offence of stirring up racial hatred under section 4(1) of the Act replaces the similar existing offences under sections 18 to 22 of the POA 1986. Section 4(2) of the Act creates new offences which apply in relation to the stirring up of hatred against a group defined by reference to age, disability, religion, (or, in the case of a social or cultural group, perceived religious affiliation), sexual orientation, transgender identity, and variations in sex characteristics.

2.173 Notably, the new offence of stirring up racial hatred under section 4(1) of the Act does not replicate the dwelling exception contained in section 18 of the POA 1986. Section 18(2) provides that “no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling.” 206The section 4(1) offence can therefore be committed inside a private dwelling, unlike the previous section 18 offence.

2.174 Lord Bracadale recommended that the threshold for the new stirring up hatred offences should be conduct that is “threatening or abusive”.207 The Scottish Government agreed that this would “strike[] the right balance between conduct which ought to be criminalised and one’s right to freedom of expression, and represent[] a measure familiar to Scots law, which works well currently in practice.” 208The Act adopts this threshold for the new stirring up hatred offences.209 However, it retains the term “insulting” in relation to the offence of stirring up racial hatred.210

2.175 Lord Bracadale recommended that the stirring up racial hatred offences should retain the intention and likely to limbs of the existing stirring up offences in sections 18 to 22 of the POA 1986.211 Section 4(1) of the Act maintains the two limbed approach in relation to the retained offence of stirring up racial hatred, however the new offences with respect to the other characteristics are limited to intention.212

2.176 Part 4 defines the characteristics that are listed in sections 1(2), 4(3) and 9(a).213

2.177 Lord Bracadale recommended that there should be a new statutory aggravation based on gender hostility.214 Although gender was not included in the aggravation of offences by prejudice regime, Part 4 provides a power for the Scottish Ministers to make regulations adding the characteristic of sex to any of these lists of characteristics. 215The Working Group on Misogyny and Criminal Justice in Scotland has been set up independently to consider how the Scottish criminal justice system deals with misogyny, and whether a statutory aggravation and/or a stirring up of hatred offence in relation to the characteristic of sex should be added to the Act by regulation.216

2.178 Under section 2(8)(a) of the Offences (Aggravation by Prejudice) (Scotland) Act 2009, “transgender identity” was defined as “(a) transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004, changed gender, or (b) any other gender identity that is not standard male or female gender identity”. Under section 11(7) of the Act “transgender identity” is redefined as follows:

A person is a member of a group defined by reference to transgender identity if the person is— (a) a female-to-male transgender person, (b) a male-to-female transgender person, (c) a non-binary person, (d) a person who cross-dresses, and references to transgender identity are to be construed accordingly.

2.179 The category of “variations in sex characteristics” that was previously contained within the transgender identity definition as “intersexuality” is now separated listed and defined as follows:

A person is a member of a group defined by reference to variations in sex characteristics if the person is born with physical and biological sex characteristics which, taken as a whole, are neither— (a) those typically associated with males, nor (b )those typically associated with females, and references to variations in sex characteristics are to be construed accordingly.217

2.180 Lord Bracadale recommended that there should be a new statutory aggravation based on age hostility. 218He was of the view that there is sufficient evidence of hostilitybased offences against the elderly to include age as a protected characteristic. 219The Scottish Government agreed with Lord Bracadale and age was added as a listed characteristic under the aggravation of offences by prejudice regime. 220The Scottish Government also created a new offence of stirring up hatred against a group defined by reference to age.221

Freedom of expression provision

2.181 Lord Bracadale recommended that “[a] protection of freedom of expression provision similar to that in sections 29J and 29JA of the Public Order Act 1986 and section 7 of Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 should be included in any new legislation.”222

2.182 The Bill as introduced sought to provide additional protection for freedom of expression in relation to religion and sexual orientation (sexual conduct and practices). 223At Stage 2, Humza Yousaf, Scotland’s Justice Minister, tabled an amendment to the Bill, which was never moved.224 The amendment would have protected “discussion or criticism of matters relating to transgender identity”. At the Stage 2 Committee session, held on 2 February 2021, all parties agreed to bring forward a Freedom of Expression clause that covers all protected characteristics, except race. Mr Yousaf tabled another amendment to the Bill at Stage 3, which took the form of a broad freedom of expression clause that covers all protected characteristics, except race.225

2.183 Part 3 of the Act contains the freedom of expression clause tabled at Stage 3:226

For the purposes of section 4(2), behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes—

Northern Ireland

2.184 The current legislative regime in Northern Ireland is similar to that in England and Wales. However, there are key differences, notably the lack of protection for transgender people and the use of enhanced sentencing only, with no equivalent of the aggravated offences found in the CDA 1998 in England and Wales.

2.185 Since September 2004, when the Criminal Justice (No 2) (Northern Ireland) Order came into force, section 2 of that Order has allowed for an increase in sentence where the offender demonstrated hostility227 on the grounds of a protected characteristic at the time of the offence, or the offence was motivated wholly or partly by hostility to that characteristic.228 The protected characteristics are race, religion, disability and sexual orientation.

2.186 Northern Ireland also has an almost identical equivalent of England and Wales’ stirring up offences, contained within sections 8 to 17 of Part III of the Public Order (Northern Ireland) Order 1987. The scope of the stirring up offences in Northern Ireland is however broader because they include disability as well as race, religion and sexual orientation.229 There is also a lower threshold test in Northern Ireland, with “threatening, abusive or insulting” behaviour being sufficient for the offence against any of the protected groups.230

2.187 In June 2019, the Northern Ireland Department of Justice announced an independent review of hate crime legislation, to be carried out by Deputy County Court Judge

Desmond Marrinan. 231We outlined the aims of the review in the consultation paper at paragraph 2.68.

2.188 The completed review was presented to Justice Minister Naomi Long on 30 November 2020.232 The final report contains 34 recommendations relating to issues such as: the range of protected characteristics; an aggravated offence model for prosecutions; the use of stirring up offences; opportunities for restorative justice; support for victims; and online hate speech. Some of the notable aspects of these recommendations are set out below.

Aggravation of offences

2.189 Judge Marrinan recommended that statutory aggravations should be added to all existing offences in Northern Ireland and that this should become the core method of prosecuting hate crimes in Northern Ireland.233 This follows the model adopted in Scotland and would mean that any criminal offence could be charged in its aggravated form (although without a higher maximum penalty as is the case for aggravated offences in England & Wales).

2.190 Accordingly, if this model were adopted, the enhanced sentencing provisions of the Criminal Justice (No. 2) (Northern Ireland) Order 2004 would be unnecessary. Judge Marrinan therefore recommended that those provisions should be repealed and replaced by consolidated hate crime provisions.234

2.191 Judge Marrinan was content to retain the current language of “hostility” but acknowledged that the introduction of a wider range of attitudes such as “bias, prejudice, bigotry and contempt” might prove beneficial.235

2.192 Judge Marrinan recommended that a variation of the “by reason of” test (which we discuss in more detail in Chapter 9) should be added as a third threshold to supplement the current thresholds of (a) demonstration of, and (b) motivation by hostility.236

Protected characteristics

2.193 Judge Marrinan recommended that all current protected characteristics - race, religion, disability and sexual orientation - should continue to receive protection under

his proposed model.237 Judge Marrinan further recommended that the characteristics of age, sex/gender (which would include transgender identity) and variations in sex characteristics should be protected.238

Stirring up offences
Restorative justice

2.201 Recommendations 16 to 22 of the Judge Marrinan’s report related to the establishment of a new statutory scheme for restorative justice to deal with hate-motivated offending by adults, organised and delivered along lines similar to the Youth Justice Agency in Northern Ireland. The Recommendations detailed the funding, structure and operation of the scheme.247

Consolidation of laws into a single act

Ireland

Legislating for Hate Speech and Hate Crime in Ireland, Report on the Public Consultation 2020
The Criminal Justice (Hate Crime) Bill 2021
Head 2: Interpretation
Head 3: Incitement to Hatred
Heads 4 to 6: Aggravated Offences

Chapter 3: Hate crime characteristic selection

INTRODUCTION

the existing range of protected characteristics, identifying gaps in the scope of the protection currently offered and making recommendations to promote a consistent approach.

THE BASIS ON WHICH CHARACTERISTICS SHOULD BE SELECTED

The continued specification of characteristics

characteristics”,270 and the Northern Territory of Australia refers to “hate against a group of people”.271

Consultation

Consultation Question 2

We provisionally propose that the law should continue to specify protected characteristics for the purposes of hate crime laws.

Do consultees agree?

Specifying protected characteristics enables the criminal law to recognise those groups who are victimised because of who they are, and who suffer the additional harm which hate crime causes not only to individuals but to whole communities. Specifying protected characteristics also enables the criminal law to provide additional protection to those groups through the mechanism of aggravated offences and enhanced sentencing.

We believe that hate crime legislation should continue to specify the characteristics it protects, in order to recognise that certain groups in society experience more severe harms as a result of being targeted for criminal behaviour.275

The range of those characteristics needs to be finite to recognise where resources need to be prioritised.

This is central to the workability and symbolic value of hate crime legislation. Specifying protected characteristics recognises that certain group identities are targeted disproportionately and impacted distinctly, and that this requires the special protection of the law.276

We support the Law Commission’s recommendation that the law continues to specify “protected characteristics”. The alternative, where any trait could be deemed by the police or a court to trigger hate crime/speech prosecutions, would increase uncertainty and therefore the “chill” on free speech.

We do not see it as the function of the criminal law to punish people, or punish them more severely, on account of the specific opinions they hold - however repellent.

In our view, the continued reference in hate crime laws to specific groups designated by a particular characteristic encourages an undesirable tendency for members of those groups to see their identity as tied up with their membership of those groups, rather than to view themselves as individuals who happen to fit a particular description. This we see as socially divisive.

A crime is a crime - it shouldn't make any difference if its motivated by homophobia, racism or whatever. The seriousness of the actual crime should be the issue.

The concept of protected characteristics is an assault on the fundamental principle of equality under the law; if we abandon this principle as the manner in which every citizen interacts with the law, then we will divide society further...

Hate crime legislation ends equality before the law. Rather than treating people equally, irrespective of race, sex or sexuality, it does the exact opposite and insists that these characteristics of a person’s identity are made central to any legal dispute by acting as the basis for determining whether a crime has or has not been committed. Comparable crimes are no longer treated similarly based on the objective facts surrounding the offence, but are instead treated differently depending upon the identity of the victim.

Equality is redefined as an equality of victimhood (for some) when the law comes to relate to vast swathes of the population as citizens in need of protection. This fundamentally alters the role of the law from neutral arbiter to an active and explicitly biased participant in disputes.

To place any one demographic of people above any other in the eyes of the law not only stifles debate on specific issues but seeks to silence criticism and opposing views of both private citizens and organised opposition. For example, there is currently a dispute between feminist and transgender supporters as to what constitutes a ‘real’ woman, with accusations of bigotry and oppression being levelled by varied factions. This should always be unacceptable in any open, free society.

Conclusion following consultation

Criteria to guide selection of characteristics

Consultation responses

Consultation Question 3 / Summary Question 1

We provisionally propose that the criteria to determine whether a characteristic is included in hate crime laws should be:

Do consultees agree?

We agree with the suggested criteria. As noted above, we have concerns that the criminal law is overcomplicated and can be made difficult to understand when criminal offences are used as a means to solve societal problems, but where use of the criminal law is not an appropriate tool. Clear and practical criteria will surely help to prevent this.

Index on Censorship agrees with the three criteria proposed by the Law Commission for determining whether a characteristic ought to be included in hate crime laws. Placing disadvantage at the centre of any discussion is appropriate as it pinpoints the source of concern in the context of society, more generally, and ensures that the focus is only on those that are actually hindered from existing and participating in society on an equal basis. Looking, briefly, at each in turn:

Demonstrable Need:

Index on Censorship approves of the minimal criminalisation approach adopted by the Law Commission and agrees that characteristics should only be protected where there is evidence that a protected group is experiencing targeting in a significant way.

Additional Harm:

One of the core rationales behind the introduction of hate crime laws is that such crimes cause additional harm to the individual, to others that share that characteristic and to society generally. As such, these crimes must be punished more severely than equivalent crimes that do not involve these further levels of harm. As such, we support the inclusion of additional harm as a criteria.

Suitability:

If protection of a characteristic would not fit logically into the hate crime offences and sentencing framework, represent an efficient use of resources, be consistent with the rights of others or, crucially, would prove unworkable in practice, Index on Censorship agrees that it ought not to be included on the list of protected characteristics. Indeed, we consider these criteria to be a vital common-sense barrier to the over-inclusion of new protected characteristics that may diminish the symbolic power of hate crime and cause a chilling effect on freedom of expression.

Although personal religious beliefs may change, there can be significant communitybased barriers to this. In order to understand religion as a protected characteristic, we need to appreciate the complex links between religion and culture that mean religious and cultural connections may persist, notwithstanding personal changes in beliefs.

The suggested criteria will mean any further characteristic(s) are all assessed against the same benchmark. This will ensure fairness in the decision-making process about adding any further characteristic(s) in the future.

The criteria outlined above are sensible. In particular ‘additional harms’ is important - the experience of antisemitic hate crime having a wider communal (and societal) impact than the specific victim is key.

These criteria provide a clear basis for assessing [whether] particular groups should be included within the hate-crime framework - they are rooted in a need which must be evidenced based as well as broader considerations about whether the issues of concern fit within the remit of hate crimes.

Collective identity is central to defining hate crime. Research (particularly that conducted as part of the Sussex Hate Crime Project) has shown that the distinct harms caused by hate crime are intrinsically linked to individual's ‘group’ identity. Hate crimes result in both individual victims and other group members feeling ‘threatened’ because of their group characteristics are perceived to be under attack, that in turn predicts certain emotional responses (anger, anxiety, shame), which then predict certain behaviours (e.g. avoiding leaving one's home). These harms are distinct to hate-based offending based on the fact that offences are targeted at individuals because of their group identity.

By framing this question in relation to group identity characteristics, legislatures ensure that they protect only those characteristics in law, which if attacked, cause these ‘distinct’ types of harms.

This understanding also then frames the evidence that can be offered to show whether criterion 2 has been met.

An actual crime should be committed, just because somebody ‘feels’ they are a victim does not make it so and is a waste of resources, not to mention the concept of policing one's thoughts being a little worrying.

All should be equal before the law. There should be no hierarchy of (perceived) victimhood.

All victims of crime should have protection and enforcement regardless of the motive of the offender. The proposal creates a special victim group, which is unfair to those who do not fit into that group.

We are concerned that these criteria are flexible and could lead to new or redefined characteristics being enshrined in legislation that would not be required in the future. An objective test of characteristic would be more appropriate.

When deciding whether a protected characteristic should be adopted in hate crime law, evidence-based policy is key, and Stonewall recognise the importance of a minimal criminalisation approach. At the same time, given that this model relies heavily on evidence of criminal targeting of a group and its resulting impact, it is crucial to note that many marginalised groups’ experiences are under-researched and unrepresented - particularly as many members of marginalised groups may not report their experiences of hate crime and discrimination to the police. As a result, in some cases it may be more difficult to obtain evidence that meets the criteria put forward by the Commission, and so in these instances, we strongly recommend that the Commission undertakes targeted consultation and engagement with these communities to develop a stronger understanding of the hate they experience.

we.. .are concerned with the inclusion of a measurement of absolute prevalence. If hostility is to a minority group, the number of incidences will by definition be low. There is also the additional challenge that some communities may be less disposed to report incidences, which could lead to prevalence seeming to be low. We therefore suggest that relative prevalence would be a more useful measure. We then agree it would be helpful to balance criteria so that low level offences that are more numerous proportionately would be measured on a similar level to more serious offences that are less numerous proportionately.

We would like to see the criteria to be amended to be read as following: (1) Demonstrable need: evidence that crime based on hostility or prejudice towards this group is disproportionately prevalent in this group. The reason we suggest this amendment is because we believe that it emphasises the fact that crimes based on hostility or prejudice targeting minority groups will be as adequately protected as larger groups.

While in general agreement, as far as I understand it, with the words ‘crime based on hostility’ I feel that the word ‘prejudice’ is too vague, and could be used to accuse someone who does not hate, but has strong views, based on for example their philosophical convictions or their religious beliefs. Criminal targeting is one thing: respectful, lively disagreement and debate is another.

The additional harm test is slightly harder to prove for more insidious and systematic types of hate crime which most of the protected characteristics can be. Therefore, this test would need to be defined and explained further to clarify the extent to which and the type of evidence needed.

We do not agree that the third criterion - suitability - is appropriate. Certain groups should not be protected only if they are an ‘efficient use of resources’ or fit in with the legislative agenda. History has shown us that it is often ineffective to try to afford legal protection to victims of crime by attempting to force current law and sentencing framework to fit when it naturally does not... It is very probable that many potential characteristics would not fit logically within broader offences and sentencing frameworks, but this should not act as a barrier to victims accessing legal recourse.

We are cautious about including ‘logical fit’ and ‘workable in practice’ as part of the criteria given that they could result in certain groups not being given the appropriate protections. Specifically, these aspects are (a) likely to be highly debated and contentious and may generate resentment from any groups not given protection due to ‘workability’; and (b) could easily be mis-evaluated and the size of the implementation challenge overstated. This also raises a further problem given that (c) the cost of protecting groups should not be the primary determinant of whether they are given protection under the law. We strongly advise that ‘suitability’ is only considered when (1) and (2) are less well-evidenced and there is a compelling trade-off in terms of cost.

Economics should not be the main factor for deciding and should not be disguised under a banner of efficiency. There are some hate crimes which are so prevalent that tackling them will be expensive such as racism or misogyny - however, they should be dealt with all the same as doing so will create a much more equal society.

Of the proposed criteria, ‘Demonstrable need’ and ‘Additional harm’ seem to be useful. ‘Suitability’ we have less confidence in, as it is more subjective.. .It feels as though a rather more robust approach is required - less subjective and better supported by evidence.

The criteria of suitability could be interpreted very subjectively and could mirror political, economic and social developments which may be dangerous to particularly groups of individuals.

There should be an additional criterion stating that a characteristic should be included if to do otherwise would be out of line with the legal requirements under the Human Rights Act 1998, which enshrines the ECHR into UK law. As part of this there would clearly need to be consideration of other international standards on combating hate crime, including the Rabat Plan of Action on Prohibition of Incitement. Such an approach would ensure that there is parity between the UK’s hate crime legislation and both its national and international human rights frameworks.

Conclusion following consultation

Recommendation 1.

Chapter 4: Defining existing characteristics

INTRODUCTION

RACE

makes sense, not only as a matter of language, but also in policy terms. The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia. Their essence is the denial of equal respect and dignity to people who are seen as “other”. This is more deeply hurtful, damaging and disrespectful to the victims than the simple versions of these offences. It is also more damaging to the community as a whole, by denying acceptance to members of certain groups not for their own sake but for the sake of something they can do nothing about. This is just as true if the group is defined exclusively as it is if it is defined inclusively.282

Migration status and language

Consultation

We invite consultees’ views on whether the definition of race in hate crime laws should be amended to include migration and asylum status; and/or language.

Given that one of the principal aims of enacting a bespoke Hate Crime Act is to avoid confusion and provide precision and clarity of language, the proposed enhanced definition, which has already been recognised in part by the CACD [Court of Appeal Criminal Division], is to be welcomed.

While we agree that the current broad definition of race would already include hostility based on migration and asylum status, and language, we do not see any reason not to include hostility based on these characteristics, for the avoidance of doubt.

Whilst we believe existing provisions would ordinarily protect most, if not all, migrants due to their nationality or national origins, we believe it would be helpful to clarify their inclusion within this definition. There is sometimes a narrow interpretation of the characteristic of ‘race’ to the unintentional exclusion of those from a migrant background. It may be useful to define this as including ‘those born outside the UK’ to ensure this captures asylum seekers and there is no dispute about whether immigration status has any bearing on protections bestowed.

We strongly believe that the definition of race in hate crime laws should be amended to include migration and asylum status, if not counted as their own protected characteristic under hate crime laws. Firstly, many of the most marginalised women in England and Wales are women deemed to have no recourse to public funds, or have insecure immigration status, these people are often further subjugated for the intersect of this with their ethnicity. A whole host of policies, systems, laws, quotas and historic attitudes produces hostile environments for a lot of migrant and asylumseeking women. We believe that it is time to address the inequalities affecting these women by recognising their lived experience and the exacerbation of their situations. It is not fair, it is perpetuated discrimination and would have a great positive impact on their rights without infringing anyone else’s if this is granted. We don’t think this necessarily needs to be included in the same category as race, and that there is enough justification that migrant and asylum-seeking women deserve the prejudice they face to be recognised separately. It is also unnecessary because not all asylum seeking and migrant women are Black, Asian or ethnic minorities, some of these women are Caucasian and thus it would start to blur lines between race, nationality and immigration status when it comes to hate crimes.

Immigration status and language needs to be adequately addressed in hate crime laws, inclusion under race can reduce awareness or perceived seriousness of crimes targeted at individuals or groups because of their immigration status, language, or perceived immigration status and language. We saw spikes in hate crime against European Londoners after the EU Referendum, and against people seeking asylum during the pandemic. Migrants, refugees and people seeking asylum also face additional barriers to reporting hate crime because of their immigration status, particularly if they are undocumented out of fear immigration enforcement action will be taken against them. The hostile environment increased people's vulnerability and creates a context that enables discrimination.

We agree that crimes targeting a victim because of hostility to their immigration status should be included. This grouping is on a common-sense basis deemed by the majority of the public to be racist and should enjoy clear and equal protection of the law. Our policy advice has always encouraged the recording of such crimes as racist hate crime but we believe the transparency of inclusion would be valuable to increase confidence in affected communities.

Following from the 2016 referendum, we have seen an increase in hostilities towards migrants and asylum seekers, as they are often wrongly blamed for the cause of the UK’s financial pressures. This has followed through into COVID, with negative fake reports circulating, indicating that the origin and indeed spread is related to foreign nationals within the UK.

Supporting evidence is illustrated with the targeting of a family group seeking asylum in the Stoke on Trent, who received verbal abuse because they communicated in their native language. They received continued verbal comments and hostility from local residence suggesting that they should speak English as they were in England.

Islington Council is strongly in favour of strengthening hate crime laws. Including migration and asylum status to the definition of race in hate crime laws will improve the strength of hate crime laws. Islington Council notes that, as well as affecting the prosecution of hate crimes, extending hate crime laws can help to improve monitoring and tracking of hate crimes, help to challenge a culture of acceptance and make victims feel safer.

‘Race’ is already broadly defined and interpreted by the courts. Hostility based upon migration/asylum status or language would be considered as racial hostility within the current legal framework and therefore further codification would be unnecessary.

Doesn't need to be amended as already included in the definition and [police] guidance. However, through case law, include examples of how this has been challenged and understood.

In our experience of working with communities and of responding to hate crime, we have found that the category of race as currently defined is broad enough to cover migration and asylum status as well as language. It is understood widely to cover both and an amendment to the definition would not necessarily add value.

We question whether crimes against those due to their actual or intended migration or asylum status, or language, could not be covered under the existing race protected characteristic.

The legal status of a person does not represent a characteristic of that person in the same way as for instance their ethnicity. It is not supported as a specific characteristic therefore but I would always support wider activity to protect this vulnerable group. The provisions of for ethnicity and faith are more likely to be applicable to this group.

Migration or asylum status is a legal status definition that in many cases is temporary and subject to change, making this unworkable in practice.

Conclusion following consultation

Caste

The term “caste” denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. It is generally (but not exclusively) associated with South Asia, particularly India, and its diaspora. It can encompass the four classes (varnas) of Hindu tradition (the Brahmin, Kshatriya, Vaishya and Shudra communities); the thousands of regional Hindu, Sikh, Christian, Muslim or other religious groups known as jatis; and groups amongst South Asian Muslims called biradaris. Some jatis regarded as below the varna hierarchy (once termed “untouchable”) are known as Dalit.287

There may be factual circumstances in which the application of the label “caste” is appropriate, many of which are capable - depending on their facts - of falling within the scope of section 9(1), particularly coming within “ethnic origins”, as portraying a group with characteristics determined in part by descent, and of a sufficient quality to be described as “ethnic”.291

In particular, we feel this is the more proportionate approach given the extremely low numbers of cases involved and the clearly controversial nature of introducing “caste”, as a self-standing element, into British domestic law.

Legislating for caste is an exceptionally controversial issue, deeply divisive within certain groups, as the last few years have shown, it is as divisive as legislating for

“class" to become a protected characteristic would be across British society more widely. Reliance on case-law, and the scope for individuals to bring claims of caste discrimination under “ethnic origins” rather than “caste” itself, is likely to create less friction between different groups and help community cohesion.294

The decision to rely on emerging case-law renders that duty redundant and we will identify the most suitable legislative vehicle that can be used to repeal it at an early opportunity.296

Caste-based crimes

Some communities have a historical culture of caste definition where some sections of communities are considered to be less worthy than others. This can lead to isolation of subgroups within broader communities and this may lead to discrimination. It can, on occasion, also lead to hostility within communities. These incidents can be recorded and flagged as a race or religious hate crime or non-crime hate incident. But, that may not be appropriate in all cases and each incident should be considered on its facts and the perception of the victim.

Was there any use of derogatory language towards ethnicity, race, nationality or religion, (including caste, converts and those of no faith)?297

Given the recent, detailed consideration government has given to this issue, and the utility of a consistent approach to defining “race” across equality and hate crime laws, we are not currently persuaded that a different approach should be taken for the purposes of hate crime laws.298

Consultation responses that raised the issue of caste

The Government was criticized, inter alia by the Equality and Human Rights Commission, for ruling out a change in the law and restricting the scope of protection to what can be interpreted through case law. The EHRC considered that the Government had missed ‘a crucial opportunity to improve legal clarity’, that emerging case law does not replace the need for separate and distinct protection against caste discrimination in the law’, and that the government’s position was inconsistent with the UK’s international obligations under the UN International Convention on the Elimination of All Forms of Racial Discrimination (which captures caste discrimination as a form of descent-based racial discrimination) to provide for separate and distinct protection for caste in UK legislation.

However, successive Conservative governments since 2015 have made it clear that they consider caste to be captured in the Equality Act 2010 as currently worded, specifically by the concept of race/ ethnic origins, irrespective of whether or not a separate and distinct statutory remedy for caste discrimination is introduced. The logical consequence is that if ‘race’ in equality law includes caste (via statute or judicial interpretation), so should ‘race’ in criminal law.

Caste as a motivator for race hate crime is already recognized in the latest CPS guidance... DSN-UK’s recommendation is that recognition of caste as an aspect of race should be made explicit in the narrative definition of racial group in the CPS guidance (the alternative to explicit guidance on caste as an aspect of race would be the inclusion of caste as an additional protected characteristic for hate crime purposes).

Current academic research points to caste as a driver for certain types of honourbased violence/abuse, specifically where one or both partners in a male-female partnership are targeted by the female’s family because the male is of a so-called lower caste than the female. If caste was explicitly included in the CPS definition guidance on race, such crimes could be prosecuted as race hate crimes thereby reinforcing their egregious and morally unacceptable nature.

Caste and Caste-based discrimination and harassment are social and cultural issues brought with them by the South Asia diaspora. There are nearly 4 million (2011 census figures) people from India, Pakistan, Bangladesh, Burma, Nepal, Sri Lanka) in Great Britain. Caste and Caste-based discrimination (CBD) impact on all of these citizens. Evidence of CBD has been established in a number of government-commissioned and independent reports. The government has said no one should suffer discrimination and harassment as a result of their caste.

The Equality and Human Rights Commission (EHRC) supports the implementation of the law to add caste as a protected characteristic under race in the Equality Act 2010. In its response in July 2018 to the government’s decision to repeal the law, the EHRC said ‘The government has a crucial opportunity to improve legal clarity and has taken a step back by looking back to repeal the duty to include caste as an aspect of race in the Equality Act 2010’.

If somebody makes anti-Jewish, anti-Islam or anti-Christian remarks, they are considered offensive but if a person is harassed or taunted because of his/her caste, the law is not clear.

Considering the flaw in the legislation and give protection to the victims of Castebased discrimination, we urge the Law Commission to add caste to the Hate crime.

Across the world, Dalits face oppression and persecution. Research has estimated there are at least 50,000 (other estimates say as many as 500,000) people living in the UK who are regarded by some as low caste and are therefore at risk of castebased hatred, prejudice and discrimination.

The National Institute of Economic and Social Research (NIESR) has found evidence of caste-based discrimination, harassment and bullying present in employment, education and in the provision of services. Its catalogue of these incidents include reports of violence and criminal activity that the victims say were motivated by caste. In one account, a radio station promoting the Ravidassia community (a Sikh sect with large numbers of Dalit adherents) was targeted with telephone threats and was burgled, apparently motivated by caste-based hatred.

We call on the Law Commission to add Caste to the Hate Crime laws. Our submission is based on the evidence of those who have lived the experience of

Caste domination, Caste-based discrimination and Caste-related hatred, threats, violence and abuse and how it affects communities here in Britain.

Conclusion in relation to caste recognition

Recommendation 2.

RELIGION

There has never been a universal legal definition of religion in English law, and experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word. There are several reasons for this - the different contexts in which the issue may arise, the variety of world religions, developments of new religions and religious practices, and developments in the common understanding of the concept of religion due to cultural changes in society.

I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.

Consultation

We provisionally propose to retain the current definition of religion for the purposes of hate crime laws (we consider the question of non-religious beliefs separately in Chapter 14). Do consultees agree?

Yes. ‘Religion’ is already broadly defined and interpreted by the courts and we are not aware of any instances where the existing definition has proved to be a barrier to prosecution. For that reason, we agree that no change is necessary.

The current definition of religion is widely understood and, in our experience, has not caused any issues in terms of interpretation or practical implications.

We agree this is a very complex issue, but that there is considerable case law to support courts using their discretion to identify hate crime on the basis of religion in a way that is sufficiently inclusive and responsive to deal with the rare cases which involve less traditional or well-established groups or sects.

Many people who have no religion do not actively identify as atheists, humanists or any other group ‘label’. Yet these people may still be hate crime targets due to their beliefs. ‘Apostates’ from conservative religious communities, who frequently do not identify with a particular religious or nonreligious group, are especially vulnerable to hate crime yet they may not easily fit the definition necessary for legal recourse under hate crime laws.

[T]he definition of the protected characteristic of ‘religion or belief’ in the Equality Act 2010 captures a broader range of people who may be victims of discrimination on the basis of religion or belief. The name of the characteristic, ‘religion or belief’, makes it explicit that beliefs that are not religious are included from the outset. The definition is also clearly inclusive of nonreligious beliefs including humanism and atheism: ‘(1) Religion means any religion and a reference to religion includes a reference to a lack of religion. (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.’303

If someone with a non-religious belief (such as Humanists) can be discriminated against under the Equality Act 2010, it stands to reason that they should be able to bring a case to remedy any hate crime which might be experienced in extreme cases. However more research into the full implications of this would be beneficial.

Sectarianism

We do not propose to add sectarian groups to the groups protected by hate crime laws (given that they are already covered by existing protection for “religious groups”). Do consultees agree?

It depends on how ‘sectarian groups’ are defined. In some cases, religious sects can suffer the worst prejudice, both from outside their religious community and from within them. In some cases, the abuse they receive can be adequately addressed through protections for hate against their identity in general but in other cases this will be inadequate. It could also lead to some unusual outcomes, such as Muslims being accused of Islamophobia if members of one sect are hateful against a different one; this (a) could undermine public confidence in the law and drive a backlash, (b) does not properly represent the nature of the hate and (c) could lead to inaccurate statistics for monitoring and evaluation.

We do not think that sectarian groups require specific protection because we agree that they are covered by protection within religious groups. However, it is important that specific groups within a faith system retain protection when their beliefs may differ. This is particularly important to protect minority groups within religious groups who may dissent or differ on key points of religious teaching.

Non-religious worldviews that are analogous to religions

We understand that there is a desire to prevent this legislation becoming amorphous and offering legal protection to a wide range of beliefs, such as has been seen in some UK employment tribunal decisions based on the Equality Act 2010 (where for example opposition to foxhunting and support for public service broadcasting have come under protection), as this could undermine the symbolic and normative power of hate crime legislation. However, inclusion of just non-religious worldviews that are analogous to religions would be limited almost exclusively to humanism. As far as we know, the only other examples of analogous beliefs found in case law are atheism and agnosticism - both of which are only narrow views on the existence of a god or gods, and as such are already unambiguously covered through the provision related to a lack of religious belief.

It is undoubtedly the case that humanists, despite being one of the most persecuted belief groups around the world, are fortunate that in the UK, they have not often been the target of hate crime compared to the size of their population. In this respect, hate crimes against humanists, and the larger non-religious population, are comparable with those targeted at Christians, which are relatively small in comparison to the number of adherents in the UK. Although this is something to be thankful for, it is not an argument against protecting humanists, no more than anyone would suggest that the low number of Christian cases would justify removing protection. The law does not have a threshold of incidents for religious groups to be offered protection. This would be an absurd proposition. To take a different approach for humanists from for Christians or, say, Buddhists, would make a qualitative distinction between religious and non-religious beliefs, but not a quantitative one. In fact, many religious groups have no recorded hate crime incidents at all in 2020, but are still protected by virtue of their belief. There is no logical or just reason why humanists should be treated differently.

Conclusion following consultation

4.108 As Humanists UK fairly acknowledge, in the United Kingdom humanists “have not often been the target of hate crime compared to the size of their population”. While it may also be true that the level of targeting is comparable to that experienced by Christians, the evidence base for the inclusion of “religion” in hate crime laws derives primarily from anti-Semitic and Islamophobic hatred; both of which remain very serious concerns. 307It would be practically unworkable (and highly divisive) to limit protection to only certain religious groups. However, while we acknowledge that there are significant parallels between humanist beliefs and religion - notably the development of a basis for understanding the world and a set of values to guide human behaviour - humanist beliefs are not religious beliefs, and there is not a strong, independent evidence base that would justify specific protection for this group in hate crime laws.

4.109 Finally, while we recognise that the proposal of Humanists UK is for a narrow religion-analogous worldview category (and not a wider category of “philosophical belief”), it is still not clear that such a contained definition can be drafted without raising similar definitional issues to those that we discuss further in Chapter 7 at paragraph 7.274 in the context of “philosophical belief”. Indeed, the case of R v Secretary of State for Education ex parte Williamson, one of the cases cited by Humanists UK in support of their claim to protection under Article 9 of the ECHR, the court stated that “Article 9 is apt, therefore, to include a belief such as pacifism”. 308The European Court of Human

Rights has also accepted “veganism” as falling within article 9 (albeit this was conceded by the UK government).309

4.110 We therefore consider that the definition of religion should remain unchanged in hate crime laws.310

Recommendation 3.

4.111 We recommend that the definition of “religion” in hate crime laws be retained in its current form.

SEXUAL ORIENTATION

4.112 Sexual orientation is defined in the Public Order Act 1986 (“POA 1986”) as a “group of persons defined by reference to sexual orientation, whether towards persons of the same sex, the opposite sex or both.” “Sexual orientation” is not defined further in the Crime and Disorder Act 1998, nor the Sentencing Code, but the POA 1986 definition has been adopted by the courts.311 An equivalent definition is also used in the EA 2010.312

4.113 While the law in principle extends to the protection of heterosexual orientation, in practice, prosecutions asserting hostility on the basis of “sexual orientation” are used almost exclusively in respect of homophobic and biphobic hostility. This likely reflects a dearth of hostility-based offending on the basis of heterosexual orientation. The law does not extend to cover other forms of sexual preference - for example, sexual fetishes.

4.114 An issue that we raised in the consultation paper was whether the definition of sexual orientation should also extend to hostility towards people who are, or are presumed to be, “asexual”. At present it does not.

4.115 Asexuality may be broadly defined as an enduring lack of sexual attraction. 313Some estimates suggest that approximately 1% of the population are asexual,314 though research into asexuality is comparatively limited.

4.116 There is some debate as to whether asexuality should be considered a sexual orientation in its own right. Some psychological research suggests that it shares the same classificatory features as other sexual orientations and should be understood as such. 315However, Kathleen Stock, an academic with a strong interest in matters pertaining to sex and sexual orientation, has argued that asexuality should be understood “not [as] an orientation but the absence of one”. 316Stock does, however, state:

I don’t assume that denying that asexuality is an orientation entails that it’s undeserving of political protection and advocacy.

4.117 In our 2014 review of hate crime laws we stated that we “had not been provided with evidence to show that individuals suffer hate crime due to being asexual”, and declined to recommend a change to the definition to include this group at that time.317 In our most recent consultation paper we revisited this question, and noted that a parallel could potentially be drawn with the protection afforded to “lack of” religious belief.318

Consultation

4.118 Consultation Question 7 was as follows:

We invite consultees’ views on whether “asexuality” should be included within the definition of sexual orientation.

4.119 Generally, organisational stakeholders responded positively. However, for a number of stakeholders this support was conditional on there being sufficient evidence of hate crimes committed against asexual individuals.

4.120 The VAWG and Hate Crime Team, London Borough of Tower Hamlets noted that the inclusion of asexuality within the definition of sexual orientation would be consistent with the approach currently taken in respect of religion, where “lack of religious belief” is included within the definition:

Yes, ‘asexuality’ should be included within the definition of sexual orientation in the same way that ‘atheism’ (or no belief) is included in religion/ belief. ‘Sexual orientation’ should include all or no sexual preference.

4.121 Several stakeholders were in favour of including asexuality within the definition on the basis that it is a well-recognised sexual orientation.

4.122 TransOxford stated:

Yes - sexuality exists on a spectrum both in terms of subject of attraction and degree of attraction. The law should cover the complete spectrum of this characteristic. Asexuality is part of that spectrum.

Yes we believe it should be. In our society today, people are feeling freer than ever to express their own sexual identities outside the binary of hetero or homosexual. Asexuality is a well-recognised sexual orientation and should of course be protected under the definition of sexual orientation, as should any other orientation or identity that an individual expresses themselves to be, including queer and pansexual.

We are in favour of the definition of sexual orientation being as inclusive as possible and the addition of 'asexuality' within the definition will enable that.

Asexual people face proportionately higher levels of discrimination, marginalisation, exclusion, and hate-based attacks.

The Hate Crime Unit firmly agrees with the inclusion of asexuality within the definition of sexual orientation. Asexuality is recognised by both the NHS and the UK Government as a legitimate sexual orientation. There is little legislation to discourage any prejudice against asexuals and, consequently, there is no legal framework to support asexual spectrum people in litigation proceedings. The asexual community is particularly vulnerable to offences such as corrective rape and sexual violence therefore it displays a legislative neglection to not include them alongside homosexuality, heterosexuality, and bisexuality.”

Neither s.146 Criminal Justice Act 2003 nor s.66 Sentencing Act 2020 contain a definition of ‘sexual orientation’. In practice, this has not caused any difficulties as the term has been broadly interpreted by the courts. However, if a definition is to be included within a new hate crime legal framework then the inclusion of ‘asexuality’ (i.e. persons with no sexual orientation) would be consistent with the protection for religious beliefs, which explicitly includes persons with no religious beliefs.

The majority of chief officers recognised the need for such victims to be covered by the provisions. Given that the current Sexual Orientation provision is not limited by definition and the enhanced sentencing provision relates to the motivation of the perpetrator, we see an argument for the same approach as that taken in the addition of Transgender into Section 146 CJA 2003, where legislators left it for the [courts] to decide whether the provision was appropriate.

If there is enough evidence to show that individuals are experiencing hate crime due to being asexual, there is an argument for its inclusion within the definition of sexual orientation. As the Law Commission highlights in the consultation paper, the inclusion of asexuality would be consistent with the approach currently taken in respect of religion, where ‘lack of religious belief’ is included in the definition.

However, the proposed definition could be clarified to read ‘both sexes’ and ‘neither sex’.

If you are asexual you should receive the same protection as any other sexual orientation. A decision about this should be made based on considering the criteria set out in Q3. We are not sighted on the evidence relating to these criteria.”

The Bar Council is not in a position to comment. Aside from the two academic studies referred to in [§11.68] there appears to be insufficient empirical data to determine whether there is a need for the inclusion of asexuality pursuant to the criteria for a characteristic set out at [§10.89].

We recommend that the Law Commission does not include asexuality. There is no evidence that identifying as asexual makes someone a target for hate. Most people don’t want to have sex with most other people. Sexual harassment and sexual assault are already covered in law.

4.138 Women’s Place UK also did not think the case had been demonstrated:

No, WPUK does not support the inclusion of asexuality in a definition of sexual orientation. Asexuality is a broad umbrella term which encompasses people who may have some sexual relationships, people who may have romantic relationships but do not experience sexual attraction, and people who may not have romantic or sexual relationships. 320Even if it were appropriate to include asexuality in the definition of sexual orientation, it is difficult to envisage how the concept of ‘hate crime’ could usefully be applied to acts of prejudice against those who identify as asexual. It is not clear how asexuality would meet the criteria set out in Question 3. The consultation paper fails to make a convincing case that ‘hate crimes’ against asexual people are prevalent, that there is additional harm to the victim, or that this category would sit logically in the sentencing framework, be workable in practice, or represent an efficient use of criminal justice resources.

4.139 For Women Scotland contrasted the evidence base for asexual targeting with that for LGB hatred.

People are discriminated against (and still sentenced to death in parts of the world) for being homosexual or bisexual. Prejudice against homosexuality is the reason sexual orientation is included as a protected characteristic in the [EA 2010] and in hate crime legislation. We do not believe ‘asexual’ should be added in the list of characteristics. There is no evidence that people are discriminated against for being asexual. We believe the inclusion of protected characteristics should be strongly supported by empirical evidence.

4.140 The Free Speech Union similarly considered there was no significant problem that needed to be addressed:

We are opposed. There is no serious evidence of any social problem related to crime against asexuals.

4.141 Christian Concern was against inclusion on the basis that it is opposed to any expansion of the characteristics protected under hate crime laws.

4.142 A number of personal responses were also firmly opposed:

suppose someone might consider just that statement as hate-crime. How ridiculous! I don't really see why something that does not actually exist should be covered by law!”

Conclusion following consultation

4.149 This is unlike the argument we rejected at paragraph 4.107, that a new category of non-religious belief (albeit only where “analogous” to religious belief) should be created. This would involve the creation of a distinctly new category of protection (non-religious belief) as opposed to a definitional adjustment of an existing one. We acknowledge that some consultees such as Women’s Place UK queried the definitional certainty of “asexuality”. It is true that there is limited precedent elsewhere in the law of England and Wales on which to draw. However, we do not consider that the challenges here are insurmountable from a drafting or interpretative perspective.

For example, asexual orientation could be defined as “a lack of sexual attraction to other people”. While we consider that the precise wording is best left to Parliamentary Counsel, a definition along these lines would be quite contained, and would not raise the same risk of unintended expansion as the inclusion of “non-religious beliefs”.

4.150 We note the argument of NPCC that the current definition of “sexual orientation” may be capable of incorporating asexuality without further change - particularly as it is not further defined in the Sentencing Code and CDA 1998. However, we consider this unlikely; the courts have instead endorsed the more detailed definition in the POA 1986 and EA 2010 as the definition for the purposes of the Sentencing Code and CDA 1998, and a plain reading of this expanded definition clearly excludes asexuality from its scope.

4.151 Finally, we note that this recommendation will result in a slightly different definition to that used in the EA 2010. As we noted at paragraph 4.40, we consider that consistency between these two definitions is desirable where possible, but not essential. In this case, there was no prior elaboration of the meaning of “sexual orientation” in the Sentencing Code and CDA 1998, so they are not in form identical to the EA 2010, though we acknowledge that they are in function and practice. We do not consider that the desirability of consistency outweighs the fairness arguments that favour including the category of “asexuality” in this case. To the extent that these definitions would differ, the scope and content of that divergence would be clear. It is also just one example of divergence between these two sets of laws - as we noted in our discussion of religion, “belief” is not covered in hate crime laws, whereas it is in the EA 2010. In the following two sections we discuss the “transgender” and “disability” definitions; both of which also substantively differ from their EA 2010 equivalents.

Recommendation 4.

4.152 We recommend that the definition of “sexual orientation” for the purposes of hate crime and hate speech laws be amended to include protection of persons who are “asexual”.

TRANSGENDER AND GENDER DIVERSE IDENTITIES

4.153 Hostility towards “transgender identity” is covered by subsection 66(1)(e) of the Sentencing Code. Subsection 66(6)(e) further defines the interpretation of this provision as follows:

references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.

4.154 During the original passage through Parliament of this provision in 2012,321 Justice Minister Lord McNally said:

... I should be clear that ‘transgender’ is an umbrella term that includes, but is not restricted to, being transsexual322

4.155 In our previous reports we have indicated that it is unclear - though possible - that the definition includes references to people who cross dress, identify with another gender identity (such as non-binary) or are intersex. 323We considered that it is inclusive and non-exhaustive and therefore does not necessarily exclude other potential meanings. By contrast, the equivalent definition in Scotland expressly includes people who cross dress and non-binary people within the definition of transgender,324 and makes separate provision for variations in sex characteristics.325

4.156 A different term and definition exists in the EA 2010, which uses the term “gender reassignment”, and defines it in section 7 as follows:

Gender reassignment

4.157 In the 2020 Employment Tribunal decision of Taylor v Jaguar Land Rover Ltd, this definition was held to be capable of including people on a spectrum that was not necessarily fixed at one biological sex or another.326

4.158 It is also important to note that the Employment Appeal Tribunal has recently determined that “gender critical” belief - the belief that sex is immutable and not to be conflated with gender identity - is protected for the purposes of the EA 2010.48

4.159 In our consultation paper we expressed the view that “the current definition places significant emphasis on the process of gender reassignment, rather than on the identity and personhood of the individual.”

4.160 We considered that there would also be benefit in including express recognition of “non-binary” persons, people who cross dress, and people who are intersex. We acknowledged that each of these groups are quite distinct, but that there may be sufficient similarity in the hostility these groups experience such that it would make sense to group them together for the context of hate crime laws.

4.161 Drawing in part on the definition adopted in Scotland, we suggested that a revised definition could include explicit recognition of each of these groups.

Consultation

4.162 Consultation Question 8 was as follows:

We provisionally propose that the current definition of “transgender” in hate crime laws be revised to include:

We further propose that this category should be given a broader title than simply “transgender”, and suggest “transgender, non-binary or intersex” as a possible alternative. Do consultees agree?

We welcome further input from consultees on the form such a revised definition should take.

Part one of the question - should transgender, non-binary, cross-dressers and intersex persons be included?

https://assets.publishinq.service.qov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya Forstater v CGD Europ e and others UKEAT0105 20 JOJ.pdf.

thought that transgender people should not have protection under hate crime laws. A number of responses also referred to the debate around women’s rights, and the tensions that have emerged with supporters of transgender rights in recent years.

Any refinement of the definition which clarifies the meaning of ‘transgender’ is to be welcomed... Hostility towards those who cross-dress has previously been prosecuted on the basis of hostility based [on] the victim being presumed to be transgender. However, an explicit reference in the definition and in the title to those who cross-dress would clarify the position and would, again, be more inclusive.

We recognise that the category of transgender identity was intended to be interpreted in an inclusive and non-exhaustive manner. However, it is crucial that statutory wording is updated to explicitly include non-binary people, as the Commission have proposed. Non-binary people face discrimination across many areas of life...

It is crucial that non-binary people are given legal clarity and clear reassurance that they are protected under hate crime law. The recent Employment Tribunal judgement of Taylor v Jaguar Land Rover Ltd explicitly recognised the right of nonbinary individuals to be protected from discrimination, harassment, and victimisation under the Equality Act 2010 under the protected characteristic of ‘gender reassignment’. This case represents an important example of the legal system recognising that non-binary people experience marginalisation for being themselves, and sending a clear message to this community that they are protected by law; we hope to see this reflected in a new Hate Crime Act.

We propose an alternative definition that follows the existing model of disability and transgender identity by simply listing the protected groups; namely ‘trans, nonbinary, gender non-conforming and intersex people’. In formulating a definition, it would be advisable to use the word ‘trans’ and avoid the words ‘transsexual’ and ‘transgender’ as they have come to hold negative connotations for trans communities in the same way that using the word ‘homosexual’ has come to feel outdated. Similarly, we advise against using the label ‘cross-dresser’ and instead use ‘gender non-conforming’.

Mermaids agrees that the current definition of ‘transgender’ in hate crime laws be revised to include: people who are or are presumed to be transgender and people who are or are presumed to be non-binary.

We would also recommend the inclusion of ‘people who are or are presumed to be gender-diverse’. The term ‘gender-diverse’ is an umbrella term used to describe gender identities that demonstrate a diversity in expression beyond the gender binary framework and importantly, encompasses other identities and individuals who may not subscribe to the term non-binary.

We believe that all members of the gender diverse population should be protected, including those who ‘cross dress’, or presumed to cross dress. Such a category, we believe, would allow the law to evolve with society and embrace all possible victims, rather than risk creating a hierarchy.

We recommend that intersex people are protected by future reform. While we appreciate that there is overlap in the intersex and trans communities and that it is the presumption or perception which is often more relevant to the phenomenon of hate crime, we would encourage the commission to engage with expert intersex support organisations to ensure any reform is reflective of what the community feel is required to ensure their protection.

We recommend the following:

The current definition of ‘transgender’ be revised to include: ‘people who are or are presumed to be transgender, people who are or are presumed to be non-binary and people who are or are presumed to be gender-diverse.’

We urge the Law Commission to consult with intersex organisations directly to ensure reform is made sensitively to this community’s needs.

People with intersex conditions have been born with a physical anomaly or other difference to normal development, such as sexual characteristics from both sexes. Intersex therefore must be kept separate from transgender people, who are usually physically fully male or female. It is highly misleading to conflate these groups, and risks obscuring the existence of intersex people. Particularly given the toxicity of the discussion around transgenderism and the extreme demands of some trans activists, it is unfair to lump intersex people into the same category.

We recommend that the Law Commission does not include ‘intersex’ under ‘transgender’ or as a category for hate crimes at all.

Yes but..... It should actually be purely gender, which would include all of the above bar intersex. Intersex is not a gender but a sex characteristic. It is important to get terminology and definitions correct. Gender relates to the inherent thoughts and behaviours relating to roles within nature that come from hard wired brain structures. This is not the same as sex which is simply about the physical characteristics used to support procreation. The two are not the same, nor necessarily related and cannot be used interchangeably. Gender exists on a bi-modal spectrum which includes gender fluid, transgender, non-binary and cis gender individuals. All these need protecting. Sex also exists on a bi-modal spectrum with intersex being those whose physical characteristics fall between the modal peaks. A separate category and definition for sex should be considered.

We support the inclusion of ‘sex characteristics’ instead of ‘intersex’ in hate crime laws and for it to be a separate category from ‘transgender’. As a first preference we ask for a separate category of ‘sex characteristics’. If not, we ask for its inclusion under a ‘sex’ category. We do not support its inclusion under the transgender or disability categories.

4.177 The INIA Consortium was also clear that “intersex” should not be included under “disability”:

Furthermore, intersex is not a disability and should not be included under the disability category. The framing of intersex as a disability is one of the rationales behind non-consensual medical interventions on intersex people and which, for a number of intersex people, can cause them medical problems which are themselves disabling. Inclusion under a disability category reinforces this pathologisation of intersex bodies. Intersex people themselves also mostly do not consider themselves to have a disability. In the UK Government Equality Office’s 2018 National LGBT survey, 66.3% of intersex respondents did not consider themselves to have a disability.

4.178 For this reason, the INIA Consortium was also against the use of “DSD”:

We do not support the inclusion of ‘DSD’ (disorders of sex development or differences of sex development) within hate crime laws. It is an unhelpful framing which suggests DSD be included under a disability category, however as explained previously being placed under the disability category is problematic. Further, intersex people will often use the language of DSD or specific medical diagnoses within medical contexts in order to access the care they need but will rarely use it outside of those contexts.

4.179 Labour Women's Declaration working group stated:

The inclusion of intersex (better termed ‘variations of sex characteristics’, VSC or ‘differences of sexual development’, DSD) with these other terms is widely contested by those living with such conditions, as all people with VSC are one sex or the other. They have different interests and needs to trans communities, which are far too often ignored through this conflation.

4.180 Several stakeholders and individuals were against the inclusion of “non-binary”.

4.181 Sex Matters stated:

We recommend that “non-binary” is not included under the definition of transgender, as it is not defined and not needed.

4.182 Labour Women’s Declaration stated:

Non-binary has never been defined in any way, and since it appears to rest on some notion of innate gender, which is a scientifically unverifiable belief, it becomes difficult to see how such a definition could be workable in law.

4.183 The LGB Alliance similarly raised definitional concerns around the term:

The term “non-binary” cannot be defined at all, other than as a chosen selfdefinition. Persons who do not consider themselves to be particularly masculine or feminine may, or may not, call themselves “non-binary”. Including this undefinable category of people in hate crime laws would introduce an element into legislation that is wholly subjective and in consequence wholly unenforceable.

4.184 Christian Concern:

The category of ‘non-binary’ should not be permitted as part of the definition of transgender. The Home Office has admitted in court that the provision of genderneutral passports to assuage demands for recognition of non-binary identity would lower the efficacy of border security internationally. This should serve as a warning of what the criminal justice system would have to deal with if the transgender category were to be expanded further.

4.185 The Welsh Government was of the view that “non-binary” did not need to be explicitly included within the revised definition because non-binary people are likely to be covered under those “presumed to be” transgender or non-binary:

We are broadly in support of revisions to the legislation to include the concepts of non-binary and intersex identity. However, we are not convinced that a separate limb of the definition is required to include those who cross dress, as we believe this is likely to be covered under those ‘presumed to be’ transgender or non-binary. Further research into the current scale of hate crime targeted at these individuals would help to inform the need to broaden the definition. (See full response in the CQ8 analysis document).

4.186 A number of stakeholders and individuals were against the inclusion of “crossdressers”.

4.187 Labour Women’s Declaration working group stated:

We do not consider it appropriate to include cross-dressing people in the legislation under this characteristic. Cross-dressing is at best a fashion statement, and at worst the public enactment of a male fetish to wear women’s clothing, particularly lingerie. Is this something that should be protected in law?

4.188 The Christian Institute stated:

The definition of transgender should not cover those who simply cross dress. There have been examples of men dressing in women’s clothes to access female dressing rooms or bathrooms. To include such a definition in a transgender hate speech law could have dangerous implications for women vociferously raising the alarm over privacy concerns. It could also create difficulties for parents strongly objecting to drag performers coming into their children’s primary schools. Cross dressing is controversial because it perpetuates sexualised stereotypes of women and as campaigner Susan Smith has contended, can be a ‘paraphilia’. She has argued that it would be a ‘bizarre situation’ if ‘something being done for arousal is protected under hate crime’.

4.189 The LGB Alliance stated:

Since women can wear so-called ‘men’s’ clothes without attracting opprobrium, the term ‘cross dressing’ refers to men who wear so-called ‘women’s’ clothing. To offer the protection of hate crime legislation to men who choose a particular style of dress, whatever their motives for doing so, trivialises the subject of hate crime legislation.

We oppose extending the protection of hate crime legislation to styles of dress. In addition, it should be noted that according to the glossary on Stonewall’s website, cross-dressers come under what it refers to as the ‘trans umbrella’ and would therefore automatically be covered by any provision governing ‘persons who are or are presumed to be transgender’.

4.190 The Alan Turing Institute expressed caution over the inclusion of “cross-dressers”:

It is important that all minority gender identifications are protected under the law -and we certainly welcome expanding the remit of the law to cover more types of non-cis-gendered identity, as this new wording proposes. However, we are cautious about subsuming a range of gender identifications within the term ‘transgender’ as this may not reflect the needs and concerns of people who solely identify as transgender as well as those who are better understood as intersex or non-binary. We are also slightly cautious about including ‘cross dressing’ within a legally protected category given that this by itself is not indicative of a non-cis-gendered identification. In particular, it could be easily exploited by hateful actors who use such an element - separated from its original context - to undermine the law and drive opposition. As such, this element would need to be implemented with due care and consideration.

4.191 A few stakeholders were concerned that broadening the definition of transgender could diminish protection for transgender people.

4.192 The National AIDS Trust was of the view that the current definition of transgender should remain:

No, we do not agree that the current definition of ‘transgender’ in hate crime laws be revised to include all the characteristics detailed in the question. We believe that people who are non-binary (or presumed to be), cross dress (or are presumed to), intersex (or presumed to be) warrant protection but it is essential that the definition of ‘transgender’ in hate crime laws is accurate.

4.193 The Welsh Government:

It is vitally important that transgender people do not lose protection as a result of any reform in UK hate crime law. In 2018/19, there was an 88% increase in reported hate crime in Wales where transgender identity was the motivating factor. In 2019/20, the number rose again with a 10% increase.

4.194 The Alan Turing Institute:

...we are cautious about subsuming a range of gender identifications within the term ‘transgender’ as this may not reflect the needs and concerns of people who solely identify as transgender as well as those who are better understood as intersex or non-binary.

4.195 Several stakeholders made suggestions for alternative language.

4.196 “Gender non-conforming” was proposed as an alternative to “cross-dressers” by SARI, Galop, MOPAC and Mishcon de Reya LLP.

4.197 The umbrella term “trans” was suggested as a replacement for “transgender” by Galop.

4.198 The CPS suggested that including “‘gender identity’ (biological and non-biological) within the definition would be a more inclusive approach.”

4.199 Mermaids stated that the definition should include:

people who are or are presumed to be transgender, people who are or are presumed to be non-binary and people who are or are presumed to be gender-diverse.

4.200 GIRES suggested that the category “transgender” be renamed as “gender diverse” and that the definition be revised to include the following groups:

gender diverse.

Part two of the question - revised title

We welcome the broader title to appropriately reflect the more expansive definition. Gender-variant communities face unique risks requiring a distinctive category.

We agree with the proposal that the category be given a broader title such as ‘transgender, non-binary or intersex’. This would ensure that the definition of transgender is not expanded beyond what it is whilst ensuring non-binary and intersex people are protected.

Provided the definition of transgender is inclusive of the other groups, there is an argument to be made that transgender is enough as an umbrella term. Keeping it consistent with the other categories, which are headed under one word to describe, I personally do not see the need to include all forms within the name of the category, as long as they are included in the definition, in a similar way as disability is defined as both physical and mental impairments, but the category is ‘disability’. Having a broader name for the category can make it seem less exclusive, by making it clear that a range of groups re included, whereas a list of characteristics could suggest that this is an exclusive list. It also makes is slightly more confusing and difficult from a practical perspective to record and investigate for criminal justice agencies.

Part three of the question - suggestions for a revised definition

We propose an alternative definition that follows the existing model of disability and transgender identity by simply listing the protected groups; namely ‘trans, nonbinary, gender non-conforming and intersex people’. In formulating a definition, it would be advisable to use the word ‘trans’ and avoid the words ‘transsexual’ and ‘transgender’ as they have come to hold negative connotations for trans communities in the same way that using the word ‘homosexual’ has come to feel outdated and offensive. Similarly, we advise against using the label ‘cross dresser’ and instead use ‘gender non-conforming’.

We further believe that it may make sense to reconsider the title of this category as ‘gender identity’ in recognition of the inclusion of non-binary individuals. Furthermore, if a ‘sex’ category is included (see Questions 11-14) then it would be pertinent to consider moving intersex individuals under than category instead.

The Equality Act 2010 includes a protected characteristic of “gender reassignment”, which is separate to sex. Section 7 of the Equality Act provides that a person has the protected characteristic of gender reassignment if the person: ‘is proposing to undergo, is undergoing or has undergone a process for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.’

We would suggest that it must be stated clearly that the transgender identity category does not include the non-binary and cross-dressing categories and that the proposed reform moves forward with the categories relating to transsexuals, which has the benefit of aligning with existing legislation and does not stray into niche fetishes or nebulous concepts.

“Gender-related issues”;

“Other” or “All other”;

“Sex non-conforming”;

“Gender fluid”;

“Metagender”.

Conclusion following consultation

4.220 In our recent report on reforms to the Communications Offences, we recommend that these offences be repealed, and replaced by offences that are far more precise, and target the most serious and harmful conduct.333

4.221 The key question that arises in this review is whether the current definition of transgender in the Sentencing Code is appropriate.

4.222 As we have previously noted, the current definition appears to be sufficiently flexible so as to cover people who cross-dress. It is arguable that it also includes non-binary persons. In the civil context, in the 2020 decision of Taylor v Jaguar Land Rover Ltd, the Employment Tribunal found that the term “gender reassignment” was capable of including people on a spectrum that was not necessarily fixed at one biological sex or another “without any violence to the statutory language”. 334The facts of the case involved an engineer who had worked at Jaguar Land Rover for more than 20 years. She had previously presented as male but in 2017 began identifying as gender fluid, from which time she started to dress in women’s clothing. In light of this, she began to be subjected to insults and abusive jokes at work. Jaguar Land Rover had argued that the claimant’s then status as gender fluid/non-binary did not fall within the definition of gender reassignment under the EA 2010.

4.223 This is a relatively untested finding of a lower tribunal, and it is not in any event directly applicable to the context of hate crime laws, which uses the arguably broader term “transgender.” It is also an evolving area of law, and it is noteworthy the subsequent Employment Appeal Tribunal case of Forstater, which considered the protection of “gender critical” beliefs under the EA 2010, emphasised that the view that sex was binary and immutable is consistent with the law.335

4.224 We accept the force of the concern we have heard that the protection of intersex persons should not be included in any definition that relates to transgender persons. Our provisional proposal was that this group be a separately listed, and separately described group, within a wider definition that included “transgender, non-binary or intersex” persons. However, groups such as INIA Consortium strongly argued that this was still inappropriate, and we accept this.

4.225 The usage of the terms “cross-dress” and “non-binary” in our provisionally proposed definition also proved divisive.

4.226 In the case of the term “cross-dress”, the LGB Alliance argued that reference to styles of dress “trivialises the subject of hate crime”. Others considered it to be potentially limiting and outdated. While we accept the concern that some view the term as outdated, we consider that there is sufficient justification for inclusion of this category in the scope of protection afforded by the broader transgender grouping in hate crime laws. As a highly visible manifestation of gender diverse behaviour, cross-dressing can place a person at high-risk of transphobic abuse, harassment and violence.

4.227 In relation to the term “non-binary”, whilst some supported the explicit recognition of this emerging category, others considered it a nebulous term.

4.228 On reflection both of these more specific groups might be more usefully subsumed into a broader category of “gender diverse”; which was an overarching term suggested by several stakeholders.

4.229 The term “gender diverse” would more clearly include people who experience criminal hostility on the basis of non-conformity with gender roles and expectations. We also consider it to be more durable over time in the event that some of the more specific current terminology changes and evolves.

Recommendation 5.

4.230 We recommend that the term “transgender” in hate crime laws be replaced with the term “transgender or gender diverse”.

4.231 The definition of “transgender or gender diverse identity” should include people who are transgender or transsexual men or women, and people who are gender diverse; for example, people who are non-binary, and people who otherwise do not conform with male or female gender expectations; for example people who cross-dress.

Variations in sex characteristics

4.232 As we have concluded that variations in sex characteristics should not be included in a definition encompassing transgender and gender diverse people, a further question arises as to whether a separate category of “variations in sex characteristics” should be created.

4.233 In Scotland, a sixth characteristic “variations in sex characteristics” has been added in the Hate Crime and Public Order Act (Scotland) 2021, defined as follows:336

A person is a member of a group defined by reference to variations in sex characteristics if the person is born with physical and biological sex characteristics which, taken as a whole, are neither—

and references to variations in sex characteristics are to be construed accordingly.

Intersex people should be included in hate crime law in recognition of the harms intersex people can face on the basis of hate towards differences of sex characteristics. In some regions around the world, intersex people are subject to infanticide and mutilation.

Where individuals may have visible intersex characteristics or non-conforming appearances they are at greater risk of being subject to violence and discrimination. Intersex people also experience physical assault and (sexual) violence within families, in society and in medical settings. In the 2019 European Union Agency for Fundamental Rights LGBTI study, intersex participants stated that their biggest problem was discrimination (34%) and bullying and/or violence (33%) on the basis of their sex characteristics. (The Equality Network in Scotland, in preparation for the Scottish Hate Crime legislation consultation, ran a survey on experiences of LGBTI hate crime and the responses further outline experiences of hate crime, prejudice and discrimination.

Inclusion is also important for deterrence. Non-consensual medical interventions that are performed on intersex young people are often based in fears of future stigma and harmful treatment to the intersex person if they look different. Inclusion in hate crime legislation makes it clear that this behaviour is not acceptable.

Including sex characteristics can also help empower intersex people. A history of silence and secrecy around intersex people in society and within families reinforces the idea that intersex people should not speak up about issues or harms they face. Inclusion is helpful in signalling that intersex people are recognised and have an avenue to report harms they experience.

DISABILITY

obviously preferable alternative to replace it. We therefore recommended that it remain essentially unchanged.

Consultation

We invite consultees’ views on whether the current definition of disability used in the Criminal Justice Act 2003 should be retained.

The very broad definition of ‘any physical or mental impairment’ is, in our view, clear and appropriate (para 11.92). While we accept that some people take issue with aspects of the term and advocate disaggregating all the various physical and mental conditions, it is very important in the context of the criminal law that definitions are simple to apply and flexible enough to ensure that a wide array of disabilities and conditions are protected. We therefore have no objection to the Commission’s intent to retain the current definition.

The definition of disability in the Criminal Justice Act 2003 and the Sentencing Act 2020 is very broad. We are not aware of any need to further extend or narrow it.

Most chief officers were supportive of the 2003 CJA definition and felt that a broad definition is the most appropriate test in these circumstances. Some mentioned the importance of coverage for those with a learning disability, sensory impairment etc but we have always advised the CJA should be interpreted broadly until case law places any restrictions.

the Bar Council is not in a position to comment on the experiences of individuals who have a disability and the appropriateness of that term. It is, though, a term which has a commonly understood and accepted meaning and the current statutory definition is equally clear. There is a risk that any attempt at further categorisation or definition will cause further unnecessary complexity and could lead to confusion.

We would suggest that - similar to the proposals for changes to the definition of transgender to include the experiences of non-binary and intersex people - the current definition of disability could also be expanded to include the experiences of people with a scar, mark or condition on their face or body that makes them look different; deaf people; people on the autism spectrum; those living with HIV and other groups. Similarly, the category could additionally be given a broader title to reflect the inclusion of these groups.

We do not approve of the existence of protected classes here in any case; and we certainly do not think they should be extended. It follows that we would not support the idea that disability should be extended to cover disfigurement. Other than that, we see no reason to modify the present definition.

For the reasons of inclusivity identified in the consultation paper, we are content for the current definition of disability used in the Criminal Justice Act 2003 to be retained, providing this approach is consistent with the views of disabled people received as part of consultation. It should be noted that the Welsh Government has adopted the Social Model of Disability, which makes an important distinction between ‘impairment’ and ‘disability’. The Welsh Government is committed to work to increase understanding of the Model across Welsh Government and beyond.

We recommend that guidance and supporting materials explaining the Act should make it absolutely clear that crimes against people with learning disabilities are likely candidates for aggravated offences and enhanced sentencing. This would help to build awareness that there are additional tools available to police forces and prosecutors to use when dealing with crimes committed against people with learning disabilities.

I wonder if the definition might be extended to any physical or mental impairment, injury or medical condition. This would seem to cover those who do not identify with the label ‘disabled’ listed in paragraph 11.99, as well as persons with skin conditions, scars and other physical but non-impairing irregularities. I am concerned, however, as to how broader definitions (as well as existing ones) may feature in low level offences, where off-hand comments about a person’s appearance or mental acuity, for example, will often be quite incidental to the offence.

Wrongly presumed lack of disability

There are a number of common triggers for crimes against disabled persons, for example: access or equipment requirements, such as ramps to trains and buses, can cause irritability or anger in perpetrators; perceived benefit fraud; jealousy in regard to perceived "perks", such as disabled parking spaces.343

4.264 Consultation Question 10 was as follows:

We invite consultees’ views on whether criminal conduct based on a wrongly presumed lack of disability on the part of the victim should fall within the scope of protection afforded by hate crime laws.

4.266 Several consultees thought that criminal conduct based on a wrongly presumed lack of disability should fall within the scope of protection.

4.267 The CPS stated:

We are aware that disabled people are frequently victimised due to an incorrect presumption that they are not actually disabled and/or are falsely claiming to be disabled. These cases are considered by the victims and by the wider community to be disability hate crime but cannot be prosecuted as such because of the current definition of disability hostility contained in s.146 Criminal Justice Act 2003 and s.66 Sentencing Act 20[20]. This is an anomaly which results in injustice for disabled victims in this type of case. This anomaly should be rectified by including a ‘perceived lack of disability’ within the definition of ‘hostility based upon disability’.

4.268 The Law Society agreed:

Given the examples outlined in the consultation paper where the CPS has had cases where people are targeted because they are wrongly presumed not to have a disability, or to be exaggerating their disability (e.g. attacks on blue badge holders and people in wheelchairs (see para 11.108)), it seems reasonable to include presumed lack of disability. The type of offending in both contexts seems to logically sit within the hate crime regime.”

4.269 Several consultees thought that this would help to extend protection to individuals with hidden/invisible disabilities.344

4.270 However, some stakeholders and individuals thought that this type of offending does not fall neatly within the hate crime framework, since it is not motivated by hatred.

4.271 For example, the Welsh Government stated:

This is evidentially a common experience for disabled people across the UK and it is important that their views are received in response to this consultation question.

However, it is difficult to see how the targeting of those with hidden impairments could be seen as motivated by hatred for disabled people. It would seem perverse for a perpetrator to be given a sentence uplift for hate crime where they state that their actions were actually motivated by genuine concern to ensure disabled people can access services which they need.

Such behaviour may be due to the hidden nature of the impairments, but criminal conduct could then be prosecuted under general public order offences rather than the hate crime regime. Nevertheless, seeking the views of those with hidden impairments is crucial to ensure they have an appropriate legal remedy when criminal actions take place.”

4.272 The Government Independent Advisory Group on Hate Crime also did not agree:

No - by definition this is not a Hate Crime. It may be highly harmful, but the motivation by definition is not hatred.

4.273 British Transport Police and MOPAC also argued that behaviour of this kind should not be considered a hate crime, as did several members of the public:

person if they do not perceive that person to be disabled.”

appears to be ignorance, and not actual active hate.”

4.274 A number of consultees responded negatively because they believed that adding “presumed lack of disability” to the definition of disability would prevent people from challenging the misuse of disability services and facilities. For example, a member of the public said: “I disagree with adding ‘mistaken presumption’ to the disability definition as I believe this will inhibit proper challenges to people who may be misusing or misappropriating certain concessions, privileges and benefits that are granted to those with disabilities.”

Conclusion following consultation

Retention of the current definition

4.275 Overall, there was strong support to retain the current definition of disability.

4.276 We are grateful for suggestions to improve the current definition, in particular:

4.277 However, while we recognise that “disability” is not a term that perfectly describes the experience of all the victims that it protects, it has the advantage of being simple, flexible, and well understood. For example, it includes deaf people, people with autism, people living with HIV, and people with disfigurements, all of whom, while not necessarily strongly identifying with the term “disability”, are clearly appropriate groups for protection under hate crime laws. It is also (subject to some small differences enumerated at paragraph 4.243) largely consistent with the equivalent definition used in the EA 2010. As we have indicated elsewhere in this chapter, we consider consistency of approach with the EA 2010 to be desirable where feasible, as it improves the clarity and consistency of the law.

4.278 We therefore recommend that the term “disability” and its current definition be retained.

Recommendation 6.

4.279 We recommend that the definition of “disability” in hate crime laws be retained in its current form.

Wrongly presumed lack of disability

4.280 Responses to our proposals to deal with abusive and violent challenges made to disabled people on the basis that they are “not disabled” or not entitled to the relevant service garnered mixed responses.

4.281 It seems clear based on the CPS response and testimony we have heard from disabled victims that this is a real issue. However, many considered that our proposal would capture circumstances that do not involve hostility or hatred towards disability, and was therefore overly inclusive.

4.282 Having considered the matter further, we agree that our proposal was overly inclusive, and risked undermining the legitimacy of hate crime laws.

4.283 We do consider that there remains a serious issue surrounding the challenging of disabled persons’ right to access services - sometimes through violence and abuse -and our recommendations in Chapter 9 to revise the legal test to include motivation by “hostility or prejudice” may be better adapted to this circumstance.

ASSOCIATION WITH PROTECTED GROUPS

4.284 A final issue that arises in the context of the current characteristics is the inconsistency in the scope of the protection afforded by the language of the characteristics in the current law. Whilst the law is clear that “association” with members of a racial or religious group is included within the scope of the protection of these characteristics, no such clarification exists in relation to sexual orientation, disability and transgender identity. In our 2014 consultation paper we stated that:

We agree with consultees that any new aggravated offences should apply to offending in which the defendant demonstrates hostility, or is motivated by hostility, towards a person based on that person’s association with disabled people (or with people of a particular sexual orientation, or who are transgender).345

4.285 We also noted that if an equivalent reform were not adopted in relation to enhanced sentencing this would have the “unfortunate consequence” of creating an inconsistency and a gap of protection in the law.346

4.286 We did not ask a specific question about this issue again in our 2020 consultation paper, however we did ask a range of other questions relating to parity of protection across the currently protected groups. In Chapter 8 of this report we recommend extension of the aggravated offences to all five characteristics, and in Chapter 10 we make a similar recommendation for a consistent approach to stirring up hatred offences across all these characteristics.

4.287 Consistent with the approach of parity of protection, we reiterate the view that we expressed in 2014 that the law should explicitly include hostility towards victims on the basis of “association” with these protected characteristics: disability, sexual orientation and transgender or gender diverse identity.

Recommendation 7.

4.288 We recommend that, consistent with the current approach to race and religion, the scope of protection for disability, sexual orientation and transgender or gender diverse identity be extended to “association” with these characteristics.

Chapter 5: Recognising sex or gender in hate crime laws

INTRODUCTION

whether crimes motivated by, or demonstrating, hatred based on sex and gender characteristics... should be hate crimes, with reference to underlying principle and the practical implications of changing the law.1

BACKGROUND

has gained prominence throughout the United Kingdom (UK) in recent years.

Whistling, leering, groping, sexual assault, being followed home, taking unwanted photos on mobiles, upskirting, sexually explicit language, threatening/aggressive/intimidating behaviour, indecent exposure, unwanted sexual advances and online abuse.349

(predominantly) women shared stories online about the time and effort they expend trying to stay safe when carrying out everyday tasks such as travelling home.357

I advise the House that on an experimental basis, we will ask police forces to identify and record any crimes of violence against the person, including stalking and harassment, as well as sexual offences where the victim perceives it to have been motivated by a hostility based on their sex. As I have said, this can then inform longer-term decisions once we have considered the recommendations made by the Law Commission. We will shortly begin the consultation with the National Police Chiefs’ Council and forces on this with a view to commencing the experimental collection of data from this autumn.359

THE CONSULTATION PAPER

prejudice towards the characteristic causes additional harm to the victim, other members of the targeted group, and society more widely.

victims also raised the concern that elevating “misogynistic sexual offences” or “misogynistic domestic abuse”, might give the impression that sexual offences or domestic abuse committed by opposite sex perpetrators are considered to be more serious than those committed by same sex perpetrators.369

‘Involuntary celibates’ (or ‘Incels’) are an overwhelmingly male online community, whose members understand society as a three-tiered hierarchy dictated by physical appearance. Incels place themselves at the bottom of the pile, meaning that they perceive themselves to be forced into involuntary celibacy. The Incel worldview has been described as “a virulent brand of nihilism”, with many Incels advocating violence against women.381

CONSULTATION QUESTIONS AND ANALYSIS OF RESPONSES

RESPONSES TO CONSULTATION QUESTION 11 (PART ONE) AND SUMMARY QUESTION 2: THE CASE FOR RECOGNISING SEX OR GENDER

Consultation Question 11 (part one)

We provisionally propose that sex or gender should be recognised in hate crime laws. Do consultees agree?

Summary Question 2:

Should the characteristic of “sex or gender” be added to the characteristics protected by hate crime laws?

Consultation responses highlighting the benefits of recognising sex or gender

Tackling the prevalence of crime that women experience and the harm it causes

Clear evidence of the predominance of misogynistic crime in England and Wales... falling on a continuum of misogyny, from the ‘everyday sexism’ of street harassment and sexist online abuse, to threats of rape and violence (both online and offline) and violence, including homicide.

We believe that public sexual harassment is a human rights issue that reflects societal discrimination. Misogyny and other forms of discrimination impacts our right to public space. We do not all experience public sexual harassment the same. The problem of street harassment can be committed on multiple grounds, from race to disability to sexuality, and it is often due to several overlapping factors. Our focus is centred on the prevalence and impact of gender-based public sexual harassment in particular, but all forms of harassment are interlinked.

Our research and bank of testimonies can show that there is a demonstrable need for “sex or gender” to be a protected characteristic, and that crimes motivated by misogyny cause additional harm to the individual, to women, girls and non-binary people, as well as to wider society.

Hatred towards women is clearly extraordinarily widespread and harmful. Any woman who is different, any woman in the public eye, any women who expresses strong beliefs will almost certainly experience expressions [or] acts of hatred on account of her sex. Your report highlights the recent experience of many female MPs and through our work at CWJ we regularly receive reports of sickening and frightening expressions of hatred towards women. Such expressions perpetuate a culture of misogyny and help create a climate that encourages acts of violence towards women.

We need to bridge the gap between online and offline spaces and tackle the pernicious idea that those most vulnerable to online abuse should modify their own behaviour to protect themselves. In the same way that the answer to unsafe streets is not to ask women to stay at home, it is not a solution to ask those who are disproportionately targeted online simply to leave those spaces.

Reflecting the motivations underpinning VAWG and the additional harm it causes

As it stands, the gender-based hostility that motivates and is demonstrated in these behaviours is not adequately captured by current legislation. Introducing misogyny hate crime within the hate crime framework would reflect the seriousness of these crimes, in terms of capturing the additional harm to individual women, to women as a group, and to society more broadly, in line with existing hate crime categories.

Sending a message about the unacceptability of relevant conduct

Practically, inclusion of this category provides a frame to understand behaviours towards women which have previously been normalised and invisible... By including women in this framework and enabling the everyday, public harassment of women to be reported and made visible in a way not done previously, a symbolic function is also carried out - of making these previously normalised behaviours explicitly unacceptable.

Misogyny is often at the root of Violence Against Women and Girls (VAWG), and that as part of the Criminal Justice System’s commitment to eradicate VAWG, we should be recording and investigating crimes and incidents motivated by misogyny or gender, so that we are able to gain a clear idea of the scale of the issue, and also send an unequivocal message to our communities that crimes motivated by misogyny or gender will not be tolerated.

Addressing a gap in hate crime laws
Enabling the recognition of hate crime based upon multiple characteristics, where one of these characteristics is sex or gender
Encouraging reporting of crimes against women

In Nottingham's experience, this [misogyny hate crime pilot] policy has enabled women to report behaviours which constitute crimes which they would not have previously reported by bringing them into the public consciousness.

Suitability concerns are surmountable

The IAG have moved its views on this area of legislation and are now strongly in favour of its inclusion. Fears about the practicality of such an extension of legislation have been roundly refuted by work done in Nottinghamshire and other force areas.

The lack of protection for gender and sex has been a noticeable omission from the laws on hate crime for some time. The only coherent rationale that has been given for not offering protection to this characteristic is the cost, which is a poor reason given the scale and impact of the problem.

Newcastle University Human Rights and Social Justice Forum, felt that questions about whether sex or gender hate crime was the most efficient use of VAWG resources could be answered by women-specific protection:

If it is women as a group, or the language of misogyny which is used, then resource and education used on hate crime would be going towards addressing violence against women and girls.

Other reasons given in favour of sex or gender hate crime

Consultees’ concerns and arguments against recognising sex or gender

That women and girls experience violence and abuse based on their gender, is undeniable. As the Law Commission consultation paper sets out, there is ample evidence of the need for these harms to be addressed, and of the additional harm that they cause not just to women individually, but collectively, and to the wider society. PTSD383 UK state that up to 94% of sexual violence and abuse survivors develop PTSD symptoms. Women who have been victims of intimate partner violence are at a three times higher risk of depression, anxiety and serious mental illness, such as schizophrenia or bipolar disorder.384

Women and girls are taught to do safety work to protect themselves from predatory men, whilst men are socialised into their right to public and private spaces. This creates a society in which women and girls are oppressed. Violence and abuse are used to reinforce this position of oppression and as ... mechanisms of power and control. Though women’s experiences are not homogenous and are affected by different intersecting factors, there is a collective harm done to women by society’s apparent acceptance of the prevalence and normalisation of violence and abuse against women and girls (VAWG).

There is no doubt that the scale of gender-based violence is staggering. Over a quarter of women will experience domestic abuse in their lifetime and one in five will experience sexual assault. On average, a woman is killed by a man every three days. Serious criminal offences are committed against women and girls, and are motivated by prejudice or hostility towards them because of their sex. It is clear that these crimes cause considerable harm to both the victim/survivor and to wider society.

Concerns related to proof and prosecutions
The legal test for hate crime is unsuited to the context of sex or gender

Proving that an offence was motivated wholly or partly by hostility towards a particular gender would be even harder except in extreme cases where there was evidence of misogynistic/misandrist views or ideology.

The majority of VAWG offences happen in private, making it incredibly difficult to prove that, for example, a gender-based slur was used at the time.

In addition, most perpetrators of VAWG are known to the survivor, which would arguably make it more difficult to demonstrate hostility in a complex abusive relationship which does not appear as such on the face of it.

Detrimentally impacting the prosecution of base offences

We know that rape myths and stereotypes feature heavily in the minds of the general public, and by default, jurors. Contrary to the view that including gender/sex in a hate crime framework would lead to greater understandings of VAWG as a structural issue rooted in power and control of women, we believe that this is overly optimistic and predicated on jurors having some understanding of the systematic oppression of women and girls. The debate about the extent to which VAWG is a hate crime is a complex one. Without training, that knowledge cannot be expected to be adequately relayed to jurors.

At best, trials will be slowed down due to their more complex nature, potentially exacerbating the trauma that complainants already experience in the criminal justice system. At worst, convictions will be even more difficult to obtain.

Recent changes to domestic abuse legislation have meant that coercive and controlling behaviour is now finally recognised. There is a risk that introducing a need to prove hostility would undo this progress as prosecutors and courts will be asked to narrow their focus to one of hostility.

Add to this the concerns around the disclosure of irrelevant third-party material and digital device data, which is routinely screened to test a complainant[’s] credibility and the proposed reforms become even more dangerous. Messages of love and affection from a perpetrator, or even a perpetrator’s history of abuse against men, could easily be used by the defence to show that the perpetrator was not motivated by hate or hostility against women and the complainant is lying.

There are practical policing difficulties directly connected to public sexual harassment such as the fleetingness of the encounter and the anonymity of the perpetrator that combine with the broader failures of policing and prosecution in relation to all forms of VAWG.385

Hostility towards sex or gender does not reflect the reasons underpinning violence against women and girls

Hate crime takes a notably individualistic approach, focussing on hostility against an individual. Of course, the individual must belong to a group that is recognised as in need of further protection, but we do not believe that the framework adequately acknowledges the complex structural issues which underpin gender-based violence and abuse. An individualistic approach is unsuitable to recognise the continuum of sexual violence and other forms of VAWG. Gender-motivated hate crimes are not merely based on intense dislike of an individual woman or a sub-group of women, but work to enforce social hierarchies that are biased against all women. These crimes are rooted in power and control, not hatred, making the gender/sex an ill-fitting protected characteristic in the hate crime framework.

There are also some questions around motivation of abuse [and] threats on the basis of sex and gender - are these necessarily motivated by hate or are they caused by things like harmful gender norms and male entitlement?

Unpicking and understanding the motivation for violent crime is always difficult. In the case of intimate partner crime and sexual violence and harassment, the motivations can rarely be reduced to “hate”.

Hate crime’s inability to capture intersectional instances of VAWG and the barriers faced by certain communities in the context of police reporting

Though victim-survivors are able to identify multiple “motivations” (for example reporting one incident as both misogyny hate crime and a disability hate crime), this embeds an additive rather than intersectional approach to social inequalities. They are presented as discrete boxes to be ticked and prioritised, multiplied and subtracted, instead of understanding how they co-constitute one another and often cannot be readily separated. In this way, hate crime as a framework for VAWG disconnects and ranks different forms of violence and requires victim-survivors to disconnect and rank ourselves. As such we find it irreconcilable with an intersectional feminist perspective.386

Concepts around hate crime are clumsy, partly because they are based on simplified notions of identity. The understandings and meanings of hate crime are, therefore, inconsistent and do not offer a sufficiently inclusive and complex understanding of the intersections between violence, equalities and human rights.387

5.100 This point was also acknowledged in a roundtable discussion that took place during our consultation period. One participant said that although they had advocated hate crime’s inclusion of gender in the past, they were concerned that the hate crime framework struggles to deal with intersectional hate crimes. The participant cited developments in Nottingham, where there are concerns that even if it encourages women to report, it leaves out a huge group of women who do not have a good relationship with the police.

Concerns that hate crime recognition is not the solution to the problems facing VAWG victims in the criminal justice system

5.101 At a consultation roundtable event, one participant said that trying to fit VAWG crimes into the hate crime framework cannot tackle the criminal justice system’s current failure to address these crimes and could obscure and distract from existing problems. They said the law needs to start by going back and addressing the problems that already exist.

5.102 Woman’s Place UK, who argued against hate crime recognition in this area, also pointed to more pressing, existing failings. They focused on very low reporting rates of VAWG-associated crimes:

Rates of reporting for all types of VAWG, from street harassment, to rape, to domestic violence, to FGM, are extraordinarily low. The reasons for low levels of reporting are well understood and documented. Trauma, lack of trust in police, fear of retaliation, shame, stigma, fear of not being believed, and love or loyalty towards the perpetrator are all factors in women and girls not reporting violent crimes.

The failure of the police, the Crown Prosecution Service, and the whole criminal justice system to take VAWG seriously, believe survivors, treat them with respect and dignity, and pursue prosecutions against perpetrators, has undermined women’s trust in the system.

5.103 Similarly, Legal Feminist also considered that an “enquiry into motivation” was “irrelevant” given the “woefully inadequate” resources to combat VAWG and the “appalling prosecution rates”:

In addition, outcomes for victims of VAWG are exceptionally poor, resulting in the widespread perception that rape, in particular, has been virtually decriminalised by unacceptably low prosecution rates. If allegations of rape, domestic abuse, stalking and sexual and sexist harassment were investigated and prosecuted more seriously, rather than being treated by police and prosecutors as part and parcel of the female experience in the United Kingdom, this would immeasurably improve women’s experience of the justice system in this country. There seems little point in tinkering with laws on motivation and sentencing when far too few of these cases ever get to court.

It is difficult to see how the addition of gender/sex to the parameters of hate crime will actually work to improve safety for women and access by women to the criminal justice services related to improving their experience of safety.

Concerns about double counting

We are particularly concerned about the issue of “double counting”, in that sentences for sexual offences are already long, rightly reflecting the seriousness of these offences, which we agree implicitly accounts for the fact that in many cases they are targeted towards women.

Resource implications
The VAWG support sector’s resources

The VAWG support sector is already chronically underfunded. As of March 2020, 8,444 survivors were on Rape Crisis member centre waiting lists for support from Rape Crisis centres nationally.

victim categories i.e. “hate crime” vs. “VAWG”.

Resources to enforce existing laws

If the purpose of hate crime legislation is to protect vulnerable groups from harm, then our view is that resources must be put into tackling actual violence and confronting the extent of impunity that currently exists for perpetrators of violence against women. Our concern therefore is that criminal laws which are designed to offer protection and accountability around violence against women and girls require proper implementation and enforcement.

Hate crime resources

Broadening to “sex” or “gender” may dilute what the people in the currently protected groups are experiencing, as support services such as their commissioned Hate Incident Support Service may be unable to provide a service to the many people this change may produce referrals from.

Negative and harmful consequences
Hierarchies of sexual violence

There is already an implicitly acknowledged hierarchy of sexual violence in our society, with the “real rape” stereotype of an unknown perpetrator attacking a woman in a dark alleyway, using physical force. [Rape Crisis England & Wales] and other organisations have spent years unpicking these myths and addressing the blame, shame and guilt that are felt by survivors as a result of their experience not fitting this stereotype. The proposed reforms would ask us to look also for evidence of hostility against women and girls and therefore creates an additional category of sexual violence in the hierarchy. We know that beneath all sexual violence is a demonstration of male dominance over women, but we do not believe that viewing sexual violence and other forms of VAWG as hate crimes would draw this out in a helpful way.

Same-sex sexual assault would be considered less serious in the criminal justice system than crimes that would come under the designation of sex-based or misogyny-based hate crimes.

Impacting survivors’ recovery

Many survivors do not see their experience as rooted in hate/hostility and asking them to frame their experience in this way would arguably add additional barriers to reporting and making sense of violence and abuse in journeys of recovery.

The vast majority of clients of Rape Crisis centres carry self-blame and shame. Much of Rape Crisis practitioners’ work focusses on unpicking and challenging these notions, and helping women and girls to reframe their experiences. By readjusting the frame, we risk complicating the issue further and adding to existing confusion.

Creating practical difficulties for support services

5.125 Victim Support also questioned whether hate crime legislation “provides the right framework with which to tackle gender-based violence”:

Given that offences such as domestic abuse and sexual violence are overwhelmingly, although not exclusively, committed by men against women, will making sex or gender a protected characteristic create confusion as to how the offence is characterised; as VAWG, hate crime or both? This could also have a significant impact on victim services, as it may create confusion within referral pathways for victims and survivors.

Data collection problems

5.126 Consultees’ concerns relating to data collection can be broken down as follows:

The ability to monitor trends is undermined by low reporting rates in this context

5.127 Woman’s Place UK questioned the view that sex or gender-based hate crime could help monitor and track crimes that are rooted in hatred in women. This is because reporting rates of all forms of VAWG are incredibly low, particularly compared with the reality of a very high volume of offending.

Misrepresenting the prevalence or reality of VAWG

5.128 Woman’s Place UK said:

It is likely that there would be a good deal of media interest in a new hate crime category and Home Office data releases relating to police recorded hate crime would be seen as an authoritative source of data on the prevalence of VAWG. Yet we anticipate that the reporting rates would remain low. We believe that there is a risk that the likely low levels of reporting would be misunderstood by many as an indication that VAWG is not as prevalent as women say and is less prevalent than crimes against other groups.

An insufficient basis upon which to expand the criminal law

citizens should not face the “hazard of criminalisation in order to gather sociological or criminological data”.

Violence against women and girls is not connected to sex or gender-based inequality or prejudice

Only generally agreed on in feminist research and organisations that use female-focused/exclusive research. Violence against women and girls is not closely connected to prejudicial ideas about women and their place in society, or overt hostility towards women in the UK.

Concerns about a disproportionate focus on violence against women and girls

There is already a disproportionate focus on violence against women, even the gender-neutral inclusion of sex/gender would only increase the disproportionate protection of women^ The vast majority of VAWG is caused by individual bad behaviour (eg sexual harassment), inter-personal issues (eg domestic abuse) or culture (eg FGM). Hate is almost never a driving factor.

Women are far more likely to assume that their gender is contributor to their victimisation even if that is not the case. Men are also far less likely to identify gender based abuse as abuse. Both is based on the extreme awareness and highlighting of gender-based violence against women through media and government and the complete neglect to address gender-based violence against men. This document is an example of this gender discrimination.

Freedom of expression concerns

There is a real possibility that the use of accurate sex-based language would be criminalised; ‘misgendering’ and ‘deadnaming’ may offend a person’s sincerely held subjective view of themselves, but they both emanate from objectively verifiable truth.

We are unhappy with this recommendation. In terms of speech crimes such as those under the Communications Act 2003 or the Public Order Act 1986, it would essentially mean increased sentencing on the basis of a defendant’s opinion of women (or men). We do not as an organisation have any desire to promote sexist or misogynist views. But it is our strong opinion that people ought to be allowed to hold and express any views about women (or men) without threat of criminal prosecution, or of increased sentence if some other crime is committed accompanied by their expression.

Lack of consensus in terms of support for the proposal
Questions surrounding hate crime’s ability to change social attitudes

This has not been the case, in our view, for other forms of hate crime based on existing protected characteristics, where there are still high levels of offences being committed.

They therefore felt that this possible benefit did not outweigh the risks associated with sex or gender hate crime recognition.

General objections

All these laws should be cancelled as everything should be open for debate without risk of violating some thought-crime.”

elevates the feelings of individuals with 'protected' characteristics above those of the general population. This results in: unequal treatment before the law, social tension, diversion of police resources from offences against property and persons in order to investigate incidents of people claiming to be offended.”

specific groups is unjust. Justice requires punishment be proportional to the harm inflicted, not if that harm had anything to do with ‘wrong think’.”

already illegal and the law should be enforced.”

RESPONSES TO CONSULTATION QUESTION 11 (PART TWO): EXCLUDING OFFENCES ASSOCIATED WITH VIOLENCE AGAINST WOMEN AND GIRLS

Consultation Question 11 (part two)

We invite consultees’ views on whether gender-specific carve outs for sexual offences, forced marriage, FGM and crimes committed in the domestic abuse context are needed, if gender or sex is protected for the purposes of hate crime law.

Instead it was an open question, inviting consultees’ views. A significant number of consultees, both organisational and individual, appeared to misunderstand the question and thereby provided responses that were difficult to interpret. Whilst we found some responses difficult to categorise, we found that there were more individual responses expressing support for the carve outs, than responses expressing opposition to them. On balance, most organisational responses also provided supportive reasons for excluding the listed offences.

Arguments in favour of excluding sexual offences, domestic abuse, FGM and forced marriage from the ambit of sex or gender-based hate crime

Addressing concerns about male victim-survivors of these offences

We recognise and understand that the large proportion of offences of this type are directed at women, not men, and that the political will to extend hate crime legislation on this front has come from our friends and colleagues in the women’s sector. We defer to their judgement as to what is in the best interests of women.

Some of the proposals intended to protect women do have significant implications for the legal status and the wellbeing of men and boys, and so this does oblige us to take positions.

Very largely eliminate the most serious concerns we have regarding the impacts of this proposal on the status and wellbeing of male victims of sexual and domestic abuse and other intimate crimes.

We note with concern the suggestion in sections 12.117-12.118 [of the consultation paper] that all acts of sexual and domestic violence committed by a man against a woman should be considered inherently misogynistic and therefore hate crimes.

It rests upon a highly contentious article of ideological faith, one that is highly controversial and widely challenged within academic theory and clinical practice by criminologists, psychologists, and other behavioural scientists.

We believe that “VAWG” crimes should not be classe[d]/defined as “hate crimes” (we agree with a “carve out”) as this is a very biased and contested ideological position and one that is contested by a huge body of evidence to the contrary. It would also in reality not be applied to male victims because societal/gender stereotypes both minimise or mitigate against fully accepting that men are and can be victims of these crimes.

While we agree that sex is a factor in the crimes listed here, we are concerned that presenting some of these crimes as entirely sex-based may lead to unequal treatment of boys and men who may be victims of these crimes. Men can also be victims of sexual offences, forced marriage and domestic abuse, yet these cases are often underreported due to fears of not being taken seriously (and presenting these crimes as those that only happen to women reinforces this).

It would be difficult to prove sex or gender-based hostility in relation to these crimes

The main practical concerns that pertain to inclusion of gender hostility include the evidential barriers already involved in proving gendered offences (especially sexual offences), as well as the potential for confusing the labelling of such offences where hostility aggravation is added.

Proving hostility at sentencing does not affect the evidence required to prove guilt during trial. Indeed, the courts already have the power to aggravate sentence for these types of offence, which could include sex or gender hostility.

Avoiding unhelpful legal distinctions between “misogynistic” and “non-misogynistic” VAWG offending

5.159 Refuge added:

It is essential that these crimes are understood as motivated by misogyny and are used to reinforce patriarchal social norms and power structures, but we do not believe that the way to increase this understanding is to arbitrarily designate some of these crimes as misogynistic and others as not. In fact, we believe this would be regressive. Therefore, we support the proposed carve-out for domestic abuse and sexual violence offences.

5.160 Women’s Aid said:

Including VAWG crimes within the hate crime framework could undermine the understanding of VAWG as inherently misogynistic - with the result, for example, that some domestic abuse offences may be categorised as motivated by hostility towards women and some that aren’t. This would not be helpful for the societal understanding of and response to VAWG crimes.

Avoiding hierarchies

5.161 The Fawcett Society were in favour of excluding the listed offences because they were particularly concerned that specific instances of sexual violence, for example stranger rape accompanied by a gendered slur, were most likely to be subject to a sex or gender-based aggravating factor. They felt this could reaffirm stereotypes that elevate stranger rapes/rapes involving physical violence as most serious or real.389

5.162 The ManKind Initiative were in favour of a carve-out because it would avoid creating a “misleading hierarchy of victims of crimes”.

Preventing negative implications for domestic and sexual violence in non-heterosexual relationships

5.163 Mishcon de Reya LLP said:

We note that if domestic abuse is not carved out there will be a new anomaly in which heterosexual domestic abuse is treated more seriously than other types of domestic abuse.

5.164 The NPCC LGBT+ portfolio on behalf of the National LGBT+ Police Network observed that:

Just because the majority of sexual offences and domestic abuse is perpetrated by men against women this does not demonstrate a causal link. Such a simplistic analysis ignores the existence of sexual offences [i]nvolving LGBT offenders and victims, as well as domestic abuse within female same-sex relationships and male same-sex relationships. The impact of these offences involving LGBT victims is no less than that upon heterosexual women, or heterosexual men for that matter.

The sex or gender-based hate crime label would be under-used in relation to the listed offences
Crimes such as sexual offences or domestic abuse do not necessarily coincide with genderbased hostility
Preserving specific expertise in the VAWG support sector

Particularly mindful of the risks of domestic abuse and sexual violence being subsumed under the umbrella of hate crime. While such crimes are undeniably motivated by misogyny, a specific approach is needed, with a carved-out area of specialist understanding resourced by expert knowledge and experience. Discrete expertise and approaches have been developed to support survivors of VAWG, and it is essential that these approaches, including those “by and for” Black and minoritised women, are protected and not - entirely inadvertently - diluted by a reframing as part of hate crime law.

Preserving the benefits of “misogyny hate crime”.

While sexual and domestic abuse offences are certainly a significant proportion of the offences committed that are motivated by misogyny, they are by no means all of them. Misogynistic hate crimes where the offences are online communications, public order or common assault offences are well evidenced in the Commission’s paper and achieving the aim of responding to this misogyny in law would be a positive outcome of legislative reform.

The exclusion of the offences listed in the consultation can be readily achieved

There is no issue of law which arises in respect of the proposed extension; the wording of the characteristic is easily understood and, if there is to be a carve-out as suggested, it can be readily achieved without undue legal complexity.

The EHRC has long recommended that the UK Government consider amending hate crime legislation to extend protections on the basis of sex or gender, but only in relation to aggravated offences. As such we are supportive of the proposal to add the characteristic of sex, in line with the Equality Act 2010 definition, to hate crime laws. However, we agree that further thought is needed in relation to the implications of this in the context of sexual offences and domestic abuse, as noted in the consultation paper.

Remaining reasons given to support the exclusion of certain offences

the base offences listed.

Arguments against excluding VAWG offences from the ambit of sex or gender-based hate crime

The carve out would create added complexity and cause confusion
A domestic abuse carve out would create difficulties

5.178 Rape Crisis England & Wales suggested that a “domestic abuse carve out would be even more unintelligible”. This was owing to the high number of offences that might be committed in this context, and the fact they are not exclusively tied to the domestic abuse context.

5.179 In the specific context of domestic abuse, Women’s Aid argued that the exclusion of certain offences and offence contexts, including domestic abuse, would need to:

[a]void the Government strategy of separating VAWG and domestic abuse frameworks which originally had an integrated approach, because it is vital that the gendered nature of domestic abuse is recognised.

5.180 In the consultation paper we suggested that the definition of “domestic abuse” set out in the Domestic Abuse Act 2021 could be used in order to exclude domestic abuse from sex or gender-based hate crime. 390However, a participant at one of our consultation roundtable events said that the use of this definition as part of the statutory carve out was problematic because there are certain types of violence or harm that are excluded from the definition.

A carve out would not be consistent with the aim of parity

5.181 Rape Crisis England & Wales said a sex or gender-specific carve out for certain offences (and the different treatment it would entail) would be “antithetical to the other reforms suggested by the Law Commission which seek to provide equal protection for all current protected characteristics”.

5.182 This point was also made in several individual responses.

It would be tokenistic to include only a few offences

5.183 Some consultees felt that only including some VAWG offences, such as public street harassment, whilst excluding the most prevalent and serious forms of VAWG, might result in a tokenistic reform.

5.184 One police chief also opposed the exclusion of listed offences because it would detract from the “paradigm shift” that adding sex or gender to hate crime laws has the potential to bring about.

It is contradictory to exclude the most prevalent and serious instances of violence against women and girls

5.185 Although supportive of the carve out on balance, Refuge said “it seems perverse to leave out some of the most extreme examples of misogynistic crimes from the remit of misogyny hate crime”.

5.186 Women’s Aid noted that it is “inherently contradictory” to include women within hate crime law but exclude “most forms of gender-based violence”. While supportive of the carve out, they said is it important not to “underestimate the challenge of developing” it.

The message that the carve out might send
Disrupting the notion of a continuum of sexual violence and contributing to a distinction between public and private VAWG offending

The inclusion of misogyny as a hate crime in practice separates the various forms of men’s violence that women experience over a lifetime. It separates these in terms of what forms are and are not included, as well as by separating out motivations and locating those as motivated by hostility only as eligible for enhanced sentencing.

While the siloed effect caused by hate crime provisions applies generally, it is particularly problematic in relation to VAWG as it runs directly counter to the widely accepted continuum model of sexual violence, developed by Liz Kelly (1988). 391The continuum model recognises the interconnection between all forms of sexual and gender-based violence and does not assume their seriousness or harm based on a presumed hierarchy of motivation. Such a model is antithetical to misogyny hate crime both conceptually, and in practice.392

5.196 A participant at a consultation discussion felt that these issues highlighted a tension with the carve out that simply cannot be resolved. On the one hand, intimate partner violence should be carved out of hate crime laws, because it is too simplistic to argue that it is motivated by sex or gender-based hatred. On the other hand, intimate partner violence should not be distinguished from other forms of VAWG (as the carve out would do) because these forms of violence are intricately interlinked.

5.197 The Labour Women’s Declaration Working Group challenged the logic and coherence of excluding the listed offences:

The “carve-outs” are singularly unhelpful in promoting any understanding of the structural nature of offences against women, which cannot be usefully understood in this atomised way. Such an approach runs counter to the government’s Violence against Women Strategy, which recognised connections across a range of forms of abuse and violence, reflecting international law from the UN and the Council of Europe. How can some of these forms be seen as hate crime and others not? What is the theoretical logic here?

Giving the impression that these offences are or should be taken less seriously

5.198 The Hate Crime Unit were strongly opposed to the carve out because it gives the impression that the listed offences are not being taken seriously or are being neglected. They argued that the inclusion of these offences in hate crime law is important for deterrence, and protection of women.

Contributing to the narrative that hate crime is about minor incidences and offensive speech

5.199 Galop and Schools Out UK shared this concern. Galop said that an important part of anti-hate crime work is emphasising that hate crime encompasses all criminal offences driven by relevant hostility, from verbal abuse to murder. They felt that carve outs would undermine this message and leave anti-hate crime work open to attacks at a policy and media level from those who seek to reduce hate crime to expressions of offensive speech or characterise it as minor.

The law should have the capacity to recognise explicit instances of misogyny in these contexts

5.200 The Centre for Women’s Justice did not agree that there should be a sex or gender specific carve out for the specified offences. They said that:

Although most crimes of violence against women and girls are inherently misogynistic, some such crimes are committed with specific misogynistic intent, which could be regarded as an aggravating factor.

5.201 A carve out would prevent these overt displays of misogyny being recognised, leading The Centre for Women’s Justice to oppose it.

RESPONSES TO CONSULTATON QUESTIONS 12 TO 14: FRAMING SEX OR GENDERBASED HATE CRIME

Should protection be sex or gender-neutral, or limited to women?

5.202 When considering how hate crime protection in this area should be framed, the first question concerned whether the relevant characteristic should be sex or genderneutral or limited to women. It was put to consultees in the following way:

Consultation Question 12

We invite consultees’ views as to whether the protected characteristic group should extend to both men and women or be limited to women only?

5.203 There were significantly more individual responses favouring protection of both men and women (as well as, in some cases, people of other gender-identities).

5.204 On balance, a small majority of organisational responses favoured the protection of both men and women.

Arguments in favour of sex or gender-neutral protection

5.205 Consultees offered the following arguments in favour of a sex or gender-neutral approach which would not limit protection to women.

Only protecting women would be an unequal and discriminatory approach

5.206 Equality was cited as a central reason why protection should not be limited to women. Many consultees pointed to the EA 2010 and several argued that only protecting women would amount to unlawful discrimination.

5.207 The Men and Boys Coalition made an extensive submission in which they argued that “any sex or gender-based hate crime protection MUST include both women and men”. They said this was particularly the case if the sex or gender-based hate crime approach “did not exclude offences such [as] sexual, intimate and domestic abuse crimes”:

As a charity with a stated objective of working to attain gender equality, we believe that equality under the law is one of the fundamental principles of British justice. With very few exceptions, British law (within all jurisdictions of the UK) has never discriminated according to the personal characteristics of defendants or alleged victims, and we assert that this should always be the default in law-making unless there are insurmountable reasons why it cannot.

5.208 The ManKind Initiative said:

In essence, to bring in a law that only applies to women is itself a discriminatory act and creates division and exclusion, not unity and inclusion. Those who argue for it to just be applied to women, do so on ideological grounds and not on equality and inclusion grounds. In essence, it could be argued that not to apply this to men, is in itself misandric in nature and relegates them to being second class citizens.

5.209 The Men and Boys Coalition specifically pointed to the EA 2010 which protects sex (without applying special protection to women) as an approach which should be mirrored in this context.

5.210 Similarly, the Welsh Government noted that “the Equality Act 2010 definition of sex does not single out women”, adding:

For the sake of consistency and parity, there is a case for misandry to be treated as a hate crime along with misogyny. While women are disproportionately affected by sex or gender-based crimes, it is important to recognise the effects that such crimes can have on male victims. Gender protection should not be limited to women.

5.211 The group “Men and Women Working Together” similarly referred to the EA 2010, saying:

We feel that the authors of this consultation have failed to comply with both the Equality Act 2010 and the Human Rights Act 1998 together with creating an unbalanced consultation document. The fact that you have even considered limiting protection to women only clearly shows your lack of compliance. This, accompanied by outdated and ill-informed anti-male propaganda leaves us no option but to disagree with any formulation surrounding women or gender to be included in the list of hate crimes.

If women were to join the list of 5 groups on the Hate Crime list, white heterosexual males as a major group would stand alone without protection. In practice, men are already suffering from gender apartheid legislation in the areas of equal parenting, domestic abuse, lack of anonymity in rape trials, form the highest levels of rough sleepers (83%), highest levels of suicide (75%) and in 2018 prostate cancer deaths overtook breast cancer deaths for the first time and still no reliable test available. We have no confidence that even if men were placed on the hate crime list they would obtain any more equality than they receive by their supposed inclusion on the equality list.

5.212 Gender Parity UK also said:

The proposal to treat women and men differently before the law based on their gender is discriminatory. Men already receive dramatically less protection, representation and support.

5.213 Several individual consultees expressed concern about the fact that not including men in a sex or gender-based protected group was even being contemplated, calling this “nonsense”, “state sponsored discrimination” and “sexist”.

5.214 One individual consultee suggested that any perceived discrimination against men could have very negative consequences:

Even if you are so bigoted against men that you honestly think no atrocity done in the name of misandry could possibly deserve “hate-crime” status, surely you understand that this will be rocket-fuel to misogynists? If there were a male in a horrible spot in life, looking for someone to blame, how could you not think that a suggestion as ludicrously discriminatory as saying only the other sex deserves protection would not absolutely push him down a darkened path?

Only protecting women would be damaging to male victims of VAWG-associated crimes

5.215 The Men and Boys Coalition described their “most pressing and serious concern” as the impact of legislative change which only protected women without a carve out for VAWG crimes. They said:

As a matter of the utmost seriousness, we ask the Law Commission to consider the devastating effects that would be felt by male victims of creating a whole new hierarchy of sexual violence, encoded into legal statute, which would say quite explicitly that offences conducted against men and boys are less serious than those committed against women and girls.

5.216 They added that if women-specific protection were adopted:

Male rape victims will be told that according to the law of the land, their rape was a less serious offence than that of a woman. Male victims who may carry the scars of years of extreme and brutal domestic violence will see their abuser convicted of a less serious crime, with a less severe sentence, just because they are the ‘wrong’ gender.

5.217 Many of these sentiments were also echoed by The ManKind Initiative, who emphasised that limited protection could be “personally devastating” for those men and boys who had been victims of domestic abuse.

5.218 Other consultees similarly felt that if there was not a carve out and the protection only extended to women, this could make male victims feel less able to report those crimes committed against them. One individual said:

Men are victims of sexual assault, rape and domestic abuse, and to only record gender-based hate crimes for women will skew the figures and make those victims feel undermined. Data is needed for both genders to form clear pictures that will aid the policing of these crimes.

5.219 The Hate Crime Unit gave a response which varied based on whether or not there was a carve out for sexual offences and domestic abuse. In the absence of a carve out, they believed protection should include both men and women, the starting point being that although offences such as sexual offences are often deeply gendered, men are also victims of these crimes:

We fear that if men were excluded from the category, the fact that this would mean similar crimes targeting men would consistently not result in as high a sentence as those targeting women, would contribute to society’s harmful portrayal of men as being strong and unable to be the victim of crimes committed by women, such as sexual offences and domestic violence. We further believe that this would result in a contribution to the persistent problem of men not reporting these types of offences, in part because of this societal stigma which would only be seen as “endorsed” by the law, if only women could seek an “enhanced” or “aggravated” sentence.

5.220 However, the Hate Crime Unit continued that if sexual offences, domestic abuse, FGM and forced marriage are excluded then “the above problem would not apply [and] the category should be limited to women only”, because recognising women as disproportionately targeted could result in “increased awareness in society which may encourage specific measures to be put in place to protect this group.”

Consistency with the existing hate crime characteristics of race, religion and sexual orientation rather than the characteristics of transgender or disability

5.221 The Law Society argued that only protecting women “would be inconsistent with the other hate crime characteristics of race, religion and sexual orientation, which are framed in general terms”.

5.222 The Men and Boys Coalition observed that existing hate crime legislation “has never excluded white people from articles on racial discrimination or heterosexual people from protection from sexuality-related hate crimes”. They continued:

We note there has never been any suggestion that the law, written in this way, has undermined people’s understanding of the true nature of racism or homophobia. We submit that these are much stronger and more relevant comparisons to the current proposal than those of protections given to disabled or transgender people.

A women-specific approach would not receive workable support.

We would add that popular public support for (or acceptance of) hate crime legislation is very strongly centred on a sense of fairness. It is our assessment that people would be far less likely to assent to and/or support hate crime legislation if it were gender-exclusive rather than inclusive.

A sex or gender-neutral approach would be inclusive of all gender identities

Should be extended to anyone who is victimised based on their real or perceived gender or sex, which includes people of all genders. This protection should include non-binary and otherwise gender diverse people as well as women and men (including trans women and men).

It would be inconsistent if the law could not respond to sex or gender-based hate crime against men on occasions where it arose
The importance of a gender-neutral approach notwithstanding evidence of disproportionate offending against women

While we acknowledge that evidence clearly shows the need for such protection applies to women far more than to men, creating laws that will clearly discriminate against men is likely to prove controversial and would be inconsistent with the other hate crime characteristics of race, religion and sexual orientation, which are framed in general terms.

Although we acknowledge that this protection is likely to overwhelming involve women as victims, we believe it is important that the protection should cover both women and men, and so a neutral term should be used.

Evidence of a need to protect men

We believe there are questions to be afforded to men and boys, particularly those who are vulnerable and in cases of sexual offences and other forms of exploitation where their gender identity was a fundamental part of the offence [_] If this expansion was not made, it supports the inclusion of a residual category that would capture offences where the gender identity of men and boys was a fundamental part of the offence.

5.235 Several groups and individuals objected to the protection of women only on the grounds that women can also express hatred and aggression and be violent towards men.

5.236 The Free Speech Union said, “if protection is introduced, then in our view equality demands that what is sauce for the goose should be sauce for the gander. There are cases of women oppressing and taunting men.”

5.237 The group Families Need Fathers said:

On our social media our members experience harassment and aggressive acts by women because they are men. Such aggression can turn to more serious crime. Mostly men who are vulnerable and already hurting. They must have the same protection under the law as women from similar acts.

5.238 Mike Bell, responding on behalf of Gender Parity UK, sought to highlight the victimisation of men and drew attention to a specific case that took place in Scotland in 2018 involving Jolene Doherty, which he described as involving “a young woman [who] killed a boy based on her self-professed man-hate”.393

Arguments in favour of limiting protection to women

5.239 Conversely, consultees made the following arguments in favour of protecting women only.

The benefits of hate crime recognition are bound up in women-specific protection

5.240 This was argued by the Fawcett Society, Refuge, and Women’s Aid amongst others.

5.241 For example, Women’s Aid said that it is important that the disproportionate targeting of women is recognised via women-specific hate crime protection to ensure that society “names” the problem and delivers the right response. Furthermore, they said a women-specific approach could help to facilitate a change in social attitudes and challenge social acceptance of misogyny, which a gender-neutral protected characteristic would not achieve. The VAWG and Hate Crime Team at the London Borough of Tower Hamlets noted the importance of a women-only approach for “labelling” purposes.

5.242 Refuge also alluded to the declaratory benefits of a women-specific approach, noting that sex or gender-based hate crime must:

recognise that women are disproportionately victims of crimes that cause additional widespread harm, in which violence and abuse is used to subjugate women and reinforce patriarchal power structures. It must also recognise that this is not the case for men.

The introduction of a gender-neutral category could do more harm than good

5.243 Women’s Aid expressed serious concern that a gender-neutral protected characteristic has “significant potential to do more harm than good”. For this reason, they said “we’re clear that it would be better not to bring in this proposal at all than for it to include both men and women”. They argued the “hostility that women receive is deeply rooted in the societal inequality between women and men” and understanding the gendered nature of abuse is “crucial”.

In relation to domestic abuse, Women’s Aid is very alert to the far-reaching impacts of the failure to recognise its gendered nature, which is particularly evident in the current commissioning of services. We are concerned by the increasing shift to gender neutral service provision, which lacks understanding that women are disproportionately the victims of repeated, serious and longterm domestic abuse and coercive control and require gender- specific services that meet their needs. All survivors of domestic abuse, regardless of gender or sexual orientation and any other protected characteristics, must be able to access support that they need but treating men and women equally, however, does not mean treating them the same.

Also in the domestic abuse context, the Fawcett Society highlighted a potential risk, raised by some VAWG stakeholders in discussions with Fawcett, that men who are domestic abusers could use a hate crime framework that included men within it as “a tool of oppression”, in relation to any acts committed by women in self-defence.

Some individual responses expressed similar concern about protection extending to men. One consultee said:

My worry is that if protection were to include men as well as women, then some male perpetrators would use this as a further means of harassment by for example bringing hate crime charges against a woman who tried to defend herself from his assault.

Arguments about “equality” should focus on substantive equality, rather than formal equality

To do so would undermine substantive equality for women and girls, potentially undermining the reasons for extending the hate crime categories. While in practice the majority of hate crime cases will be with women and girls, the important symbolic function of hate crime laws will be undermined. Having new hate crime laws (and potentially a commissioner) provides the opportunity for increased education. This needs to be focused on what hate crimes are against women and girls (as the evidence shows they are the ones who suffer them), increasing public knowledge that these are crimes, and increase public trust in the police for women and girls to report such crimes. Having a gender-neutral category risks failing to recognise the gender inequality at the heart of hate crimes and increasing women and girls’ reporting of such crimes. Finally, having a gender-neutral hate crime could mean funds are not used to address gender inequality and hate crime against women and girls, but misdirected to all in society when there is no evidence of the harms of hate crimes against men.

Unlike for race and religion, it is feasible to specify the targeted group in law: women

There are complexities within other characteristics where the directions of hostility may be multi-faceted, for example race and religion - however, on the issue of sex/gender, that is not the case. It is women who face structural oppression.

It would be impracticable in the cases of race, religion, and sexual orientation to produce a list of all the sub-categories that are the subject of hate crime, owing to the huge diversity within each of these categories... gender hate crime is capable of being unidirectional, applying exclusively to women. As such, it is preferable and practicable to protect just women under the proposed new category of gender-based hate crime.

Practical considerations make the case of sex/gender different. The diversity of race and religious groups would make it very difficult to single out sub-groups for hate crime protection, and no one group needs more protection than the other. Whereas in the case of gender, there is ample evidence that there is a need for additional protection for women.

The demonstrable need exists in relation to women and there is no analogous demonstrable need in relation to men

We strongly believe that that sex or gender-based hate crime protections should be limited to women and not include men. This is due to the deep rooted and historic inequalities that women face. The evidence for this is explained in the consultation paper and through the Ending Violence Against Women and Girls Strategy as well as other pseudo legal documents such as the Istanbul Convention 394and CEDAW.395 Men do not experience the same prejudice and violence that women do on the basis of their sex, as evidence shows.

The importance of limiting expansion to characteristics with an evidence-base

An expanding list of characteristics, not limited to those where there is evidence of prevalent discrimination, risks an undesirable expansion of the law that will be significantly detrimental to freedom of expression. Therefore, we support a thorough, consultative and evidence-based approach to the designation of “protected characteristics”.. .The historic and current discrimination against women is well documented. If the purpose of “protected characteristics” and hate crime laws are to protect specific groups who have suffered formal and informal discrimination, then clearly women as a group should be included.

Women offending against men very rarely demonstrate, or are motivated by, misandry

5.256 The Centre for Women’s Justice said:

Insofar as there are examples of crimes of violence against men committed by women these are usually committed as a consequence of resistance in the immediate or long-term experience of male violence. There are rare examples of some acts of violence towards men that are committed by women where there may be an explicit motivation of hatred towards men, but this is usually because the woman in question has suffered a history of serious male violence and abuse and finally snapped. We don’t think it is appropriate to describe such crimes as hate crimes.

In relation to violence towards men from other men, we can think of examples where there is a misogynistic context to such crimes. For example, male rape can be performed specifically to emasculate and or humiliate the victim. This is a crime motivated by hatred but it is not hatred on account of the victim being a man.

5.257 The Labour Women’s Declaration Working Group asked, “How often are men targeted because they are of the male sex? Is there a purpose to including them?” They continued that:

This is a vanishingly small aspect of crime and does not have an impact on wider perceptions, whereas the huge numbers of crimes committed against women because they are women has a major impact on women, who find it necessary to be on guard against harassment, violence and sexual assault in many contexts. Hence, if such hate crime protection is to be included (which we do not think is helpful anyway), it should refer solely to women.

If protection is limited to women, should the term “women” or “misogyny” be used?

5.258 The second question relating to the way in which hate crime protection in this area should be framed asked what term should be used if protection were limited to women. It presented two choices: “women” and “misogyny”:

Consultation Question 13

We provisionally propose that a protected category of “women” is more suitable than “misogyny”, if sex or gender-based hate crime protection were to be limited to the female sex or gender. Do consultees agree?

5.259 Most personal responses to this question responded “no”, although a significant number responded “yes”, and a slightly smaller number responded “other”.

5.260 There were more “yes” responses from organisations than “no” or “other” responses, but the difference was very marginal - roughly the same number of consultees responded “yes” as responded “no” and “other”.

5.261 The following arguments were made in favour of the term “women” over “misogyny”.

The language of “misogyny” evokes a particular type of sexist behaviour; one that is highly emotive and driven by a particularly aggressive and vitriolic form of prejudice. However, hate crimes can be committed by individuals who are “cool, calm and collected” - their emotional state is not what defines hate.

Therefore, they supported using the terminology of “women” as this should “allow for a more comprehensive protection against hate”.

5.262 Conversely, the main arguments offered in favour of the term “misogyny” rather than “women” were:

Hate crime law that focuses on “misogyny” rather than “women” may offer wider protection to a greater number of people for it would ensure protection for, amongst others, trans and non-binary people who do not identify with the term women, but regardless face hate due to misogyny and misogynistic views of their identities.

If protection is neutral, should the term “sex or gender” be used rather than exclusive use of the term “sex” or “gender”?

5.263 Our final consultation question about the way hate crime protection in this area should be framed asked what term should be used if hate crime protection is sex or genderneutral. It asked whether the wider term “sex or gender” would be preferable to exclusive use of either the term “sex” or “gender”:

Consultation Question 14:

We provisionally propose a protected category of “sex or gender” rather than choosing between either “gender” or “sex” if hate crime protection were to adopt a general approach. Do consultees agree?

5.264 Although a significant number of responses agreed with our proposal, the majority of personal respondents disagreed that the term “sex or gender” should be used.

5.265 A small majority of organisational responses also disagreed with our proposal, although this was much more marginal - there were only a handful more negative organisational responses to this question than positive responses. A smaller but still significant number of organisations responded “other”.

Arguments in favour of the term “sex or gender”

5.266 The main arguments offered in favour of the term “sex or gender” were as follows:

“Sex or gender” is the most inclusive term

5.267 This view was expressed widely in personal responses and organisational responses, including by Gender Identity Research and Education Society (GIRES), Hampshire Constabulary, Stonewall (who emphasised its ability to capture all women), the Equality and Inclusion Partnership (EQuIP), Interconnecting South East and East Asians in the UK / The UK Federation of Chinese Professionals, Trans Actual UK CIC (who emphasised the importance of recognising non-binary people), Mermaids, Galop, Stella Creasy MP (who argued that “‘sex or gender’ would also ensure that transmisogyny is captured by hate crime law and no perpetrator could evade prosecution by impugning the victim’s status").

5.268 In a similar vein, RCT People First 396said, “[d]ifferent terminology is used in different areas etc so if both are used it will suit more people's purposes.”

5.269 Several individual responses also favoured the phrase “sex or gender” because it is more inclusive. Some examples of this viewpoint include the following quotations:

together, this can cover a range of people who may experience misogynistic hate on the basis of either of these things or both”.

not tied to their biological sex feel included within this definition”.

characteristics and on how society expects women to behave (gender stereotypes) and on the gender expression of women. A butch lesbian can be attacked for being too masculine, a cis woman can be attacked for being too feminine, anyone perceived as a woman can be attacked because the attacker presumes she is a women.”

Use of this phrase reflects the nature of “sex” and “gender”

5.270 TransActual UK CIC felt that this was the right approach, explaining that they rejected a distinction between gender and sex on the basis that they are “mutually and intrinsically linked ways of understanding a person and not terms which should have legal distinction between them”.

5.271 Several other consultees considered the terms “interchangeable” or “interdependent” and were therefore in favour of including both.

This term is an important response to the division in this area.

5.272 One individual response emphasised that inclusivity was especially important given the highly politicised nature of this issue, meaning “it is best to go with the solution that’s as inclusive as possible to avoid creating unnecessary conflicts”.

5.273 Both Resolve West and Stand Against Racism & Inequality (SARI) thought this would “help with the current division and toxic hostility going on regarding trans and some cisgender women”.

This term is most flexible and able to withstand future developments

5.274 TransActual CIC UK also argued that “sex and/or gender” would be the “most flexible, functional and future-proof category”. Galop also referred to “sex or gender” as a flexible term that avoids conceptual conflicts with the existing transphobic hate crime strand.

Arguments against the term “sex or gender”

5.275 The main arguments made against the use of the term sex or gender are listed below.

Sex and gender should not be conflated or confused

5.276 A significant number of individual responses to this question objected to the terms “sex” and “gender” being included in one category. They argued that they were distinct terms which must not be conflated and should be protected separately. The following are several quotations illustrating this viewpoint:

causes huge damage!”

they relate to distinctively separate realities or identities”.

“sex” rather than “sex or gender” would be needed “for the avoidance of confusion or ambiguity” in legislation aimed at protecting women.

not the same thing, and neither are biologically binary. The use of them interchangeably or collectively leads to a great deal of confusion and indeed hate crime. Combining the two will simply perpetuate this.

Victims should have a specific choice
The term “sex or gender” is inconsistent with the Equality Act 2010
Trans people are already protected in hate crime laws

5.284 The Centre for Women’s Justice said:

This report raises the issue of a trans woman being targeted for misogynistic hate crime and suggests gender is a more inclusive term. But if a trans woman is targeted by hate crime then she already had the protection of transgender hate crime legislation.

Women are frequently targeted based on their sex

It has also been argued that violence against women and girls is strongly connected to female biology and physicality. Choosing “sex” would accommodate victims who feel they have been targeted based on their sex characteristics.

Implications for free speech

Debate in this area can be strongly predicted to be further curtailed, specifically perspectives that acknowledge the relevance of biological sex, or advocate for women’s rights on this basis, will be at risk of being reported and potentially criminalised for stirring up hate on the basis of transgender identity.

Legislating for self-identification by the back door
Preference for the term gender

ANALYSIS OF CONSULTATION RESPONSES

The case for recognising sex or gender in hate crime laws

Analysis of arguments in favour of recognising sex or gender in hate crime laws

We found this argument superficially compelling and share the view that the omission of sex or gender can result in potentially arbitrary outcomes. For example, if two defendants commit an assault and one uses a racist slur, whilst the other uses a sexist slur, hate crime laws would only apply to the defendant who used a racist slur.

Although the omission of sex or gender appears arbitrary and problematic on its surface, the legal position is more complex than this. As consultees’ responses extensively highlight, suitability concerns surround the possible introduction of sex or gender-based hate crime, which do not apply in the same way to existing characteristics such as race or religion. We are therefore concerned that recognising sex or gender in hate crime laws simply to fill a gap could be a reductive solution.

We considered prevalence as part of our analysis of the demonstrable need criterion in Chapter 12 of the consultation paper and found the criterion to be convincingly satisfied. As part of this, we cited evidence that women disproportionately experience certain criminal conduct, such as sexual offences or sexual harassment in physical and virtual public spaces. We also recognise, as identified in the consultation paper and in consultation responses, that VAWG-associated offences have been linked to sex or gender-based hostility, prejudice and inequality.

However, for the reasons discussed in Chapter 3, we do not think that prevalence should be the only criterion when deciding whether a characteristic should be added to hate crime laws. Whilst prevalence of relevant offending is a very important starting point for these purposes, it does not explain why hate crime would be an effective, efficient or appropriate way to tackle the identified volume of relevant crime - something our suitability criterion is more equipped to tackle.

Stakeholders who emphasised the prevalence and damaging effects of VAWG did not necessarily explain why extending hate crime laws was the best way to deal with the identified problem.

Some stakeholders did expand on how hate crime recognition in this area could tackle the identified prevalence of crimes against women. For example, as noted at paragraph 5.50, Dr Laura Higson-Bliss said that “adding misogyny as a hate crime characteristic would give women more leverage when reporting abuse to the authorities”. It was also argued that misogyny hate crime would result in a greater ability to monitor the nature and prevalence of crimes committed based on hostility towards women, enabling future initiatives to be created in response to the evidence base this would create.

However, we do not currently have evidence to support the “more leverage” claim, i.e. the view that law enforcement bodies take the report of a hate crime more seriously than a report of the relevant base offence. Benefits relating to “monitoring the nature and prevalence of crimes committed based on hostility towards women” might be achieved just as effectively by non-criminal data collection initiatives or national police recording - measures that would raise fewer suitability concerns than changes to the law in this area.

We acknowledge that the need to communicate unacceptability is particularly acute in relation to violence against women and girls. This is because of the endemic and arguably normalised nature of such conduct. 397However, this argument is indiscriminate and, in our view, therefore not a useful way of selecting those characteristics which should be added to hate crime laws. All crimes involving hostility to a characteristic of the victim are unacceptable, whether that characteristic is the victim’s sex, race or status as a homeless person, to take just three examples which we discuss in this report.

We recognise the instinctive strength of this argument, because much of the anecdotal evidence we have heard since the conception of this project suggests that female sex or gender is often also targeted in racist, religious, disablist and LBT+ hate crimes. In Chapter 8 we recommend reforms to the aggravated offences regime to better facilitate the prosecution of hate crimes based on the targeting of multiple characteristics where this is supported by the evidence.398 However, we also acknowledge arguments by those who have suggested hate crime is fundamentally unsuited to respond to the intersectional nature of violence against women and the inequalities that different women experience.

5.298 However, raising awareness of reporting options is not a particularly convincing argument in favour of changing the law. As highlighted in the introduction, sex or gender-based hate crime is to be recorded by all police forces in England and Wales, starting in Autumn 2021. Insofar as lack of awareness is thought to be driving low reporting rates, a public awareness campaign accompanying the recording of sex or gender-based hate crime might be a more targeted response to legitimate reporting concerns than extending hate crime laws.

5.299 More fundamentally, the reporting barriers that exist in the context of offences associated with violence against women and girls are deeply embedded, 402and it is not clear how hate crime recognition will materially change this. The option to report sexual offences is widely known, but that does not change the fact that victimsurvivors of these offences frequently choose not to report.403

5.300 The Nottingham Misogyny Hate Crime Pilot was limited to police recording and as it did not involve any change in the law, it did not include the possibility of prosecution of “misogyny” as part of the offence. However, public focus groups conducted with women in Nottingham as part of the independent evaluation did not suggest that this was a barrier to reporting. Indeed, the evaluation report says: “it is notable that conviction is not the key thing motivating women to report - instead it is the fact that they are being taken seriously that matters”.404

5.301 Consultees also argued that the suitability concerns we identified in the consultation paper were: misplaced, i.e. they should not be relevant considerations; and surmountable, for example via the carve out option we identified in the consultation paper. These two points were used to argue in favour of recognising sex or gender in hate crime laws.

5.302 The first view, that the suitability concerns identified were misplaced, related to our concerns about resources. As noted at paragraph 5.72, the Alan Turing Institute argued that “the only coherent rationale that has been given for not offering protection to this characteristic [sex or gender] is the cost, which is a poor reason given the scale and impact of the problem”. We do not agree with the view expressed by the Institute, for two reasons.

5.303 First, suggesting that the only coherent suitability concern relates to cost runs contrary to the views of many consultees, who recognised the range of difficulties that adding sex or gender to hate crime laws could bring. Secondly, by raising resource-based suitability concerns we did not question whether gender-based violence is “worth” spending money on. Rather, we acknowledged the scale and impact of VAWG, and questioned whether the introduction of sex or gender-based hate crime is the most efficient use of resources to tackle such an extensive problem.405 This engages important questions about the purported benefits that hate crime would bring in the context of gender-based offending.

5.304 Turning to the view that identified suitability concerns are surmountable via a statutory carve out for certain VAWG offences - we agree that excluding sexual offences and domestic abuse from the scope of sex or gender-based hate crime responds to many of the suitability concerns identified in the consultation paper. However, this is not a straightforward solution that automatically bolsters the case for recognising sex or gender in hate crime laws, because such a carve out would also give rise to a series of independent problems (summarised at paragraph 5.311), as consultees also highlighted.

5.305 It was also argued that the Nottingham Misogyny Hate Crime pilot illustrates the suitability and workability of hate crime recognition in this area. However, the Nottingham pilot was quite different to the anticipated protection of sex or gender in hate crime laws. Most obviously, it did not involve crimes being prosecuted as misogyny hate crimes.

5.306 Moreover, the pilot pre-designated certain conduct, such as sexual assault or being followed home as examples of “misogyny hate crime” or “misogyny incidents”. Where this conduct was reported, it was automatically categorised as a misogyny hate crime or incident (depending on the nature of the underlying conduct). This is different to the way in which hate crime laws function, which require proof that a criminal offence was motivated by, or the offender demonstrated, hostility towards a specific characteristic. As we noted in Chapter 1, police recording of hate crimes and incidents is based on victim perception. However, for the purposes of the criminal law, no behaviour or criminal offence would be automatically considered a sex or gender-based hate crime. Proof of prejudice or hostility towards the victim’s sex or gender would be needed in addition to proof of the elements of the base offence (for example, assault or harassment).

5.307 As we have highlighted, many potential suitability concerns relate to the requirement of proof of a motivation or demonstration of hostility in the context of gender-based violence, as well as practical difficulties associated with prosecution. While it is an important study, the Nottingham Misogyny Hate Crime pilot is of limited utility in illustrating whether or not adding sex or gender to national hate crime laws would be desirable or workable because experience of recording an offence as a hate crime does not involve experience of prosecuting it as one.

Analysis of arguments against recognising sex or gender in hate crime laws

5.308 For the most part, the arguments that consultees provided against recognising sex or gender coincided with the suitability concerns we identified in the consultation paper, and we agree with a large proportion of these.

5.309 In this section we address the following arguments that consultees offered against the recognition of sex or gender:

Several consultees were concerned about the use of the hostility test in the context of sex or gender, for various reasons, and we accept most of these concerns. However, we do not entirely share the CPS’s view that sex or gender-based hostility is rarely demonstrated in the same clear and unequivocal way as it is in respect of the existing protected characteristics.

The CPS argued that even if gendered language accompanied a crime, “it would still be difficult to prove that the hostility was based upon the victim’s gender rather than [against] the victim as an individual”.

We acknowledge that gendered language is to a large extent normalised in society. Its ubiquitous nature might make it less likely for a jury or magistrates to associate gendered language with sex or gender-based hostility, than they would use of racist or homophobic slurs with racism or homophobia.

Nonetheless, we note that throughout the consultation period we have heard numerous examples of serious and overt manifestations of hostility towards women that we have no doubt would reach the criminal threshold.

Whilst we note arguments made by those such as Woman’s Place UK and Rape Crisis England & Wales that notions of “hate” and “intense dislike” of women do not accurately reflect the structural inequality underpinning VAWG, the legal test for hate crime does not require proof of this hatred or intense dislike against a group. “Hostility” is the test used in current hate crime laws, and in Chapter 9 we propose that a motivation of “prejudice” towards the characteristic should be added in addition to the term “hostility”.

Gender Parity UK opposed the protection of sex or gender in hate crime laws by arguing against any connection between purported VAWG crimes such as sexual offences, and prejudicial ideas relating to women.406

In our consultation paper, we raised the possible connection between violence against women and girls perpetrated by male offenders on the one hand, and sex or gender-based hostility or prejudice on the other hand, as part of our demonstrable need criterion. Consultees scarcely challenged the view that sex or gender satisfies the demonstrable need criterion.

We acknowledge, as pointed out by stakeholders such as the Men and Boys Coalition, that a range of complex factors, specific to individual interactions and relationships, can motivate all offences, including VAWG-associated offences committed by men against women. However, this does not prevent the demonstrable need criterion from being satisfied in relation to sex or gender, for the following reasons:

Ultimately, we do not think the satisfaction of our demonstrable need criterion is undermined by the fact that a range of complex factors and motivations might underpin various forms of violence against women and girls. However, we do think this point raises questions about whether a legal test based on hostility or even prejudice towards sex or gender is too reductive to apply to specific cases of VAWG, and whether a hate crime approach constitutes a suitable approach to VAWG.

We acknowledge the freedom of expression concerns which surrounded the possibility of sex or gender-based aggravated communications offences. However, since the aggravated offences and enhanced sentencing regimes only apply where the conduct already amounts to a criminal offence, we consider that the freedom of expression discussion was more relevant to the nature of the communications offences themselves, and the recommendations that we made in our recent report Modernising Communications Offences, particularly our recommended new communications offence based on likely harm. 407This report recommended replacing offences based on vague and nebulous terms such as “grossly offensive” - which risk having a chilling effect on freedom of expression due to their breadth - with more specific and targeted offences that focus on harm likely to be caused by the communication.

Excluding sexual offences, domestic abuse, FGM and forced marriage from the scope of sex or gender-based hate crime

Framing sex or gender-based hate crime

Women-specific or gender-neutral protection

5.313 This argument clearly reflects the consultation responses we received. Most individual responses opposed the protection of women only. Whilst we did not provisionally propose that protection should be limited to women in our consultation paper -preferring instead to ask an open question on this issue - some consultation responses mistakenly assumed that we had. Following this, several responses very strongly opposed what they considered to be the “discriminatory” exclusion of men.

5.314 Some consultees advocated a women-specific term because sex or gender is more analogous to existing hate crime categories that are specifically framed such as disability or transgender. In doing so, they argued that whilst practical reasons require the use of a wide term in relation to highly diverse groups such as “race” and “religion”, there are no clear practical barriers which would prevent use of a specific term, such as “women”, in the context of sex or gender. They argued that it was easier to specify the targeted group when it came to sex or gender, as has been done with the transgender and disability categories.

5.315 This contrasted with consultees who simply stated that sex or gender was analogous to generally framed characteristics such as race, without expanding on their reasons for this.

5.316 Several responses pointed out that it was very important to limit the expansion of hate crime characteristics to what has an evidence-base, and that criminal targeting which is linked to prejudice or hostility towards sex or gender almost exclusively pertains to female sex or gender. Against this, and subject to the discussion above, we note that the generally-framed characteristics—race, religion and sexual orientation—include sub-groups which infrequently experience relevant hate crime. For example, there is little evidence that heterosexual people experience hate crime based on hostility towards their sexual orientation.

5.317 We agree that we have received very little evidence of crimes which are linked to misandry, or more widely, prejudice or hostility towards the male sex or gender. However, we acknowledge that on rare occasions these might arise. If the characteristic were specifically framed, i.e. the term “women” were used, hate crime laws would not be able to recognise these instances if they arise, which might be considered arbitrary. In this way we recognise arguments made by the Men and Boys’ Coalition in favour of a gender-neutral approach, whereby they suggested that it would be “inconsistent to treat a male victim differently to a female victim”, and endorsed the following part of Lord Bracadale’s conclusions from the Scottish review that while:

[t]he essence of the conduct which we are seeking to cover is usually against women, it is not inconceivable that there could be hostility against a man (or nonbinary person) based on their gender [...].

“Sex or gender” or exclusive use of “sex” or “gender”?

5.318 Many responses argued in favour of exclusively using the word “sex” in hate crime laws.

5.319 Some consultees had concerns about the potential conflation of sex and gender. In this regard, we think it is important to emphasise that the term we would propose, if hate crime recognition is introduced in this area, is “sex or gender”.

5.320 Some consultees argued that because the term “sex” is used in the EA 2010, it should also be used in hate crime laws. While we agree that there is value in aligning the terminology used in the EA 2010 with hate crime terminology where it is possible to do so, as we outlined in chapters 3 and 4, hate crime laws and the civil discrimination laws contained in the EA 2010 serve different purposes. Further, the terminology of definitions in these two areas already differ in certain respects; notably the definitions of “disability” and “transgender”. We therefore consider that it can be appropriate to depart from the terminology of the EA 2010 where there is a clear policy basis on which to do so.

5.321 We acknowledge the point made by some consultees that trans women are already protected by the “transgender” category in hate crime laws. However, this protection would apply where trans women are targeted based upon hostility towards the trans aspect of their identity. Where a trans woman is targeted based on hostility towards her being a woman, the “transgender” category might not be engaged - indeed a perpetrator might not even be aware the woman was trans. Instead, a hate crime category directly attributable to the victim being female would be more relevant. It is also possible that a trans woman may experience misogyny in circumstances where the perpetrator is aware that the person is trans. In this case, neither the category of “transgender” nor “sex” would be particularly apt to capture the nature of the hostility experienced, if the hostility was directed towards the victim’s female gender.410

5.322 It was also argued that the term “sex” would be preferable because it would accommodate victims who have experienced hostility that is specifically referable to their sex characteristics, i.e. their female biology and physicality. In response, we note that prosecution on this basis would still be possible if the term “sex or gender” were used, as this incorporates the term sex.

5.323 The group Sex Matters argued that including gender would essentially “legislate for self-identification by the back door”.

5.324 However, if we were to recommend that “sex or gender” should be added to hate crime laws, this recommendation would only apply in relation to this particular aspect of the criminal law. It would not affect the civil law provisions that apply in relation to the Gender Recognition Act 2004.

5.325 Finally, we take the freedom of expression concerns raised by some consultees seriously. Consultees such as Kent ReSisters expressed concern about the inclusion of “gender”, noting that this might curtail “perspectives that acknowledge the relevance of biological sex”. They drew attention to the stirring up offences, and any extension of these to include gender. We discuss how the law might respond to freedom of expression concerns of this nature in Chapter 10 of this report and propose the use of bespoke free speech protections in relation to the discussion of biological sex, if the stirring up offences are extended to cover “sex or gender”.

5.326 Outside the context of “stirring up” offences - which as we note in Chapter 10 operate at a very high threshold of criminality - we acknowledge that there are legitimate freedom of expression concerns in the context of other speech offences, such as the communications offences under section 1 of the Malicious Communications Act 1998 and section 127 of the Communications Act 2003. These offences have lower maximum penalties, lower criminal thresholds, and are prosecuted in significantly higher numbers. Indeed, section 127(1) was the offence in question in the case of Miller, 411which is often cited by gender-critical organisations as an example of the over-reach of the criminal justice system. We consider that the fundamental concern in relation to these offences is their over-reliance on vague terms such as “grossly offensive”; a concern that is not limited to the hate crime context. We have separately recommended reform of these offences in our report Modernising Communications Offences, 412and consider that these reforms, if implemented, would address wider concerns about freedom of expression.

5.327 Having reflected on consultees’ arguments about the way this characteristic should be framed, we were most persuaded by arguments in favour of the term “sex or gender”, which pointed out the flexibility and inclusivity of this term. We regard these two qualities as important in this context, given the divided and divisive debate surrounding definitions of “sex” and “gender” and their relationship.

OPTIONS FOR REFORM

5.328 In the preceding section we have explored the main arguments emerging from consultees’ responses to our consultation questions about sex or gender-based hate crime.

5.329 The wide ranging and contingent nature of the arguments offered by consultees makes it difficult to draw a definitive policy steer from the consultation, particularly in terms of whether sex or gender should be added as a hate crime characteristic. This illustrates the challenges that beset this policy area - it involves a range of tensions that are hard to resolve.

Option 1 - full recognition of sex or gender on the same basis as other characteristics

5.333 Create aggravated offences (based on hostility towards sex or gender) for all the offences which currently have aggravated versions in sections 28 to 32 of the CDA 1998.

5.334 Add sex or gender to the enhanced sentencing regime.

Option 2 - partial recognition of sex of gender, with certain offences and contexts excluded

5.335 Only add sex or gender to hate crime laws if sex or gender-specific conditions are put in place:

Option 2a: include sex or gender in hate crime laws, but specifically exclude certain VAWG offences and the context of domestic abuse.

Option 2b: include sex or gender for aggravated offences only.

Option 2c: include sex or gender for offences related to harassment and abuse only.

Option 2d: include sex or gender for enhanced sentencing only.

Option 3 - no recognition for sex or gender in either aggravated offences or enhanced sentencing

5.336 Do not create aggravated offences (based on hostility towards sex or gender).

5.337 Do not add sex or gender to the enhanced sentencing regime

Advantages and disadvantages of the options for reform

Option 1 - full recognition on the same basis as all other characteristics

5.338 This option would simply add sex or gender to hate crime laws, on an equal basis with all other characteristics, without any further qualification.

5.339 The key advantages of this option are:

5.340 Under Option 1, a sex or gender hate crime aggravation could be used in relation to all criminal law offences, if there were evidence that the defendant demonstrated, or the offence was motivated by, hostility towards the victim’s sex or gender. This would be advantageous in that:

5.342 We think this would be a very significant disadvantage, because we consider the suitability concerns relating to sex or gender to be very serious. We are particularly concerned about the potential for this to make some sexual offence prosecutions more difficult, and also indirectly create and reinforce a hierarchy of sexual violence. These difficulties were clearly shared and expanded upon by consultees.

5.343 As a result, we do not believe that Option 1 - inclusion of sex or gender in hate crime laws without VAWG-related offence carve outs - is a desirable policy course. We have reached the clear conclusion that if sex or gender were to be recognised in hate crime laws, such recognition should be partial only.

Option 2 - partial recognition of sex or gender, with certain offences and contexts excluded

Only add sex or gender to hate crime laws if sex or gender-specific conditions are put in place.

5.344 All of the permutations of Option 2 that we have outlined would add sex or gender to hate crime laws, but only if the scope of sex or gender-based hate crime laws were limited in some way.

5.345 The general advantages of partial recognition for sex or gender are:

5.346 However, partial recognition of sex or gender would undermine two key aims that our wider recommendations seek to bring to hate crime laws - simplification and parity across the protected characteristics. Some forms of partial recognition present greater challenges than others in this regard as will be detailed below.

5.347 Also, any approach which limits sex or gender-based hate crime to a fixed number of offences could (or indeed would):

5.348 Nonetheless, our view is that if sex or gender were to be included in hate crime laws, it would be necessary to accept the disadvantages of partial recognition, given the strength of the suitability concerns in this context.

5.349 The more specific arguments for and against the range of partial recognition options are considered below.

Option 2a: broadly include sex or gender in hate crime laws, but specifically exclude VAWG offences

5.350 This option is the most inclusive of the partial recognition options. The starting point would be to include sex or gender in hate crime laws, but then specifically exclude the VAWG offences and contexts we consider raise the most concerns in practice.

5.351 In legislative terms, this would involve the specific exclusion of certain offences: sexual offences, FGM, forced marriage and coercive control offences from the ambit of hate crime laws, and also a specific exclusion of any offending committed in the context of domestic abuse.

5.352 The domestic abuse context exclusion could adopt the definition of domestic abuse in section 1 of the Domestic Abuse Act 2021. In practical terms it would mean that offending such as an assault, or criminal damage, which might otherwise fall within the scope of a sex or gender-based hostility aggravation, would be excluded from this aggravation if the context of the offending was found to be one of domestic abuse for the purposes of the definition. It is worth reiterating at this point that this would not remove the scope of the sentencer to recognise the harm and wrongfulness of the defendant’s conduct, as they would retain a wide discretion to do so. Indeed, as we note at paragraph 5.28, sentencing guidelines already require sentencers to consider the particular seriousness with which the criminal justice system treats domestic abuse in deciding on a sentence.

5.353 The main advantages of this option are:

5.354 Notwithstanding these advantages, using a statutory exclusion of certain VAWG offences and contexts creates independent problems. Perhaps more than any other partial recognition option, it could undermine our aim to make the law in this area simpler, because of the complexity that a statutory carve out would create. We also share many of the concerns that consultees expressed surrounding the nature and existence of a statutory carve out.414

Option 2b: include sex or gender as a characteristic for aggravated offences only

abuse context being pursued as sex or gender-based hate crimes.

5.355 This option would involve only including sex or gender within the aggravated offences regime, and not the more widely applicable approach of enhanced sentencing. The current aggravated offences correspond with several of the areas of concern prompting calls to introduce “misogyny hate crime” - in particular public order415 and harassment offences. 416By not including all offences, concerns in other areas such as sexual offences would be avoided.

5.356 This option would also use non-statutory guidance for police and prosecutors to exclude domestic abuse offending that could potentially be prosecuted using sex or gender-based aggravated offences. There is a more limited overlap between the existing aggravated offences and domestic abuse offending (for example, the assault, criminal damage and harassment offences are also prosecuted in the context of domestic abuse). We consider that guidance, rather than a statutory exclusion, would be a more proportionate response to address this overlap.

5.357 The main advantage of this option is that it would exclude the enhanced sentencing regime, with its very wide scope. It is therefore a simpler option to draft and apply. Although sex or gender-based hate crime would only apply in limited contexts, these contexts are among the most frequently invoked in the calls to introduce sex or gender-based hate crime laws.

5.358 The use of non-statutory guidance to guide prosecutions in the context of domestic abuse might be criticised as a weaker response to the specific concerns that have been raised in this area. This is because guidance (rather than a statutory exclusion) would not firmly ensure the exclusion of offences committed in this context. However, the more flexible approach entailed by guidance may also be seen as an advantage because some consultees have argued that a blanket statutory exclusion of all domestic abuse cases is not desirable and could result in arbitrary outcomes.

5.359 The independent problems created by Option 2b are arguably less serious than those brought about by Option 2a in the sense that Option 2b is less complex and there is therefore less risk of operational uncertainty when it is applied.

5.360 However, it is also vulnerable to criticism that it is a weaker response than Option 2a (and Option 1) and leaves relatively arbitrary gaps in the potential for hate crime aggravation. For example, it would not be possible to apply an enhanced sentence to an online communications offence417 (in contrast to an in-person public order or harassment offence, where an aggravated offence would be available to prosecute). Whereas Option 2a adopts an approach of parity of protection except where it is considered necessary to exclude an offence or context, Option 2b is simpler but less principled.

5.361 A further criticism of this option is that victims of sex or gender-based hate crime might be seen as lesser, or the poor relation of the wider hate crime framework. The option would recreate a hierarchy of protection that we have recommended should be removed amongst the existing five characteristics.

Option 2c: include sex or gender-based recognition for offences related to harassment and abuse only

5.362 This option starts from the premise that the legal model of hate crime laws is unsuitable as a response to a significant proportion of VAWG offending (for the reasons that we have outlined in the chapter). However, the model could operate effectively in relation to a limited number of offences - those associated with abuse and harassment of women.

5.363 Like Option 2b, it creates significant gaps in the extent to which hate crime aggravation may apply - particularly compared to the other characteristics, and thereby recreates a hierarchy of protection in law.

5.364 Option 2c has certain advantages when directly compared with Option 2b:

5.365 However, Option 2c is even more vulnerable than Option 2b to criticisms that adding sex or gender to hate crime laws is tokenistic, or that the protection of sex or gender is somehow lesser, because it only extends to a very small number of offences.

5.366 Its selective nature also means it is more complicated than Option 2b, which is a disadvantage because it may prove more difficult to implement consistently.

Option 2d: include sex or gender for enhanced sentencing only

sex or gender

5.367 This option would include hostility based on sex or gender in the enhanced sentencing regime. The practical effect of this is that it would not exclude sexual offences, FGM, forced marriage or offences committed in the domestic abuse context from the scope of sex or gender-based hate crime.

5.368 The rationale for this solution is that enhanced sentencing, unlike aggravated offences, only requires proof of hostility at the sentencing stage, which does not affect the evidence required to prove guilt during trial. As a result, the risk of exacerbating the prosecution’s challenges in the context of sexual offences is not engaged, and so a carve out is less necessary.

5.369 However, Option 2d does not respond to other suitability concerns relating to sexual violence or to any of the concerns surrounding domestic abuse, including:

5.370 Further, Option 2d would replicate the current position of the sexual orientation, transgender and disability categories in hate crime laws as “second class” levels of protection - a position we recommend should be reformed. This has been strongly criticised by stakeholders representing these groups, who have described the aggravated offences - which form part of the substantive criminal law as opposed to sentencing law - as symbolically and practically important. Therefore, if aggravated offences were not available in respect of the characteristic of sex or gender, criticisms about its different treatment might be more acute.

Option 3 - no recognition for sex or gender in either aggravated offences or enhanced sentencing

5.371 This option would retain the status quo. Sex or gender would not be a protected characteristic for the purposes of the regimes of aggravated offences or enhanced sentencing.

5.372 This would avoid the potential concerns we have about including sex or gender within hate crime laws in contexts where it may be ineffective and counter-productive - a risk most acute with complete recognition on the same basis as all other characteristics (Option 1) - and all the complexities and unsatisfactory limitations in scope entailed by the various permutations of partial recognition (Option 2).

5.373 The key disadvantage of this option is that it fails to respond to the evidence:

5.374 Though we have outlined that hate crime is not the only means by which the harms and culpability in offending can be recognised, it is clearly considered very important by many victims. Indeed, regardless of the very real concerns we have about how sex or gender-based hate crime laws would operate in practice, the non-inclusion of this characteristic risks sending the erroneous message that misogynist crime does not exist.

Comparing these options in the light of consultation responses

5.375 We now explore consultees’ views of these options. In doing so, we acknowledge two key limitations:

5.376 Notwithstanding these limitations, several points of significance emerge from our consultation which direct us towards not recognising sex or gender in hate crime laws (Option 3). These are:

On the one hand, the Association of Police and Crime Commissioners (APCC) firmly supported the addition. This support was echoed in individual responses from the Deputy Police and Crime Commissioner for Nottinghamshire, and the Police and Crime Commissioner for Cheshire. MOPAC also expressed support.

On the other hand, the Office of the Police and Crime Commissioner for Hampshire felt that sex or gender “would fail the suitability test”. The National Police Chiefs Council (NPCC) LGBT+ portfolio noted that “it is far from clear that hate crime is the right framework for the criminal justice system to deal with gender-based crimes”.

The National Police Chiefs Council did not express any consensus on this matter. Their submission also annexed responses from individual police chiefs. Of these, the majority appeared to support sex or gender hate crime recognition. However, some of these supportive responses also highlighted specific problems or concerns about recognition, and the need to limit the ambit of recognition for this characteristic. A significant minority of responses from police chiefs were opposed to recognition of sex or gender in hate crime laws. They cited various reasons for this such as issues surrounding double counting, the view that sex or gender hate crime is not workable in practice and would significantly stretch police resources and the view that sex or gender fails to satisfy the suitability criterion.

The CPS did not comment on whether sex or gender should be added, but outlined practical difficulties that could be associated with prosecuting hate crime in the context of gendered violence.

The Magistrates Association supported the provisional proposal based on the evidence we set out in the consultation paper relating to the first two criteria. However, they too acknowledged the risks of recognition and the potential issues to which the nature and operation of a statutory carve out for certain offences could give rise.

However, it is important to note that the answers to Consultation Question 11 (part two) are conditional - the question asked whether a carve out should be adopted if sex or gender is recognised in hate crime laws. Therefore, it is difficult to deduce freestanding support for Option 2a over Option 3 (i.e., not recognising sex or gender) from the responses to Consultation Question 11 (part two) alone. More fundamentally, consultees raised a range of substantive concerns about the use of a sex or gender specific statutory carve out for certain offences.

5.377 As a result of these factors, we have concluded that the consultation responses largely point towards not recognising sex or gender in relation to aggravated offences or enhanced sentencing (Option 3).

CONCLUSION

The case for adding sex or gender as a protected characteristic in hate crime laws.

5.378 Throughout this project’s pre-consultation and consultation period, we have heard extensive testimony about a wide range of crimes that are associated with violence against women and girls. This has powerfully illustrated its scale and impact. Violence against women and girls remains a significant problem in England and Wales, and is deeply harmful.

5.379 However, long-standing questions about whether hate crime is an appropriate response to this problem remain. Acknowledging the contested nature of the issue, particularly the question of including “sex” or “gender”, we put forth multiple options and have concluded that not adding sex or gender to hate crime laws - Option 3 - is the best way to proceed, for the following reasons:

Many consultation responses agreed with the wide range of suitability concerns that were identified in the consultation paper and indeed expanded upon them.

In light of the strength of these concerns, we argued that only a partial recognition option should be chosen if sex or gender were to be added as a characteristic in hate crime laws.

However, as we explain in point (2) below, all partial recognition options give rise to further concerns. This compounds our view that hate crime recognition is not an appropriate way forward in the context of sex or gender-based offending.

We note that the different treatment involved in all the partial recognition (Option 2) solutions we have considered would significantly undermine the broader objective of parity and consistency that we have recommended for hate crime laws in England and Wales. In addition to this broad challenge, the specific challenges for each of the partial recognition options can be summarised as follows:

simplicity has been one of the key calls for reform; and

Whilst the prevalence of offending linked to prejudice or hostility towards women is an important consideration, it does not explain why hate crime would be an effective, efficient or appropriate way to tackle the identified volume of relevant crime - something we explore in our analysis of the suitability criterion in this context. Whilst some stakeholders cited the ability of sex or genderbased hate crime to increase reporting in the VAWG context, evaluation of the Nottingham Misogyny Hate Crime initiative has not shown this to be the case. We further noted that reporting barriers in this area are deeply embedded,421 and the extent to which hate crime recognition has the capacity materially to change this remains unclear.

We acknowledge that this point is something which might change in the future. National police recording of sex or gender-based hate crime, which was due to commence in Autumn 2021, may provide a stronger evidence base, and an opportunity to illustrate the purported benefits more clearly. However, until these benefits have been demonstrated, we are reluctant to recommend the introduction of an approach that some consultees, particularly those who have considerable expertise in the VAWG sector, have warned could cause more harm than good in the field of violence against women and girls.

Even amongst those who supported hate crime recognition in this area, there was very little consensus as to what form it should take.

Whilst many supportive stakeholders were very clear that a carve out for the listed offences was necessary, they were keen not to underestimate the negative consequences it might bring. Some felt the operation of a partial recognition option would cause significant problems. Others argued that if the ability to recognise sex or gender-based hostility were to be available in relation to some crimes and criminal contexts, it should be available in all.

Reflecting on these parallel concerns, some stakeholders noted that they encapsulated a dilemma that could not be resolved. Rape Crisis England & Wales said:

That there is a need to exclude some serious VAWG offences arguably adds evidence to the argument that a hate crime framework is not suitable for VAWG.

This sentiment was echoed and expanded upon by academics and third sector practitioners in consultation discussions.

Further, there was no consensus surrounding the way in which hate crime recognition in this context should be framed. Many organisational stakeholders who were supportive of recognition were clear that a large proportion of its benefits were contingent upon a women-only approach, advocating the use of the terms “women” or “misogyny”. Women’s Aid resolutely said they would not support hate crime recognition in this area if a sex or gender-neutral approach were adopted, noting its potential to cause more harm than good.

Having reflected on the consultation responses, we do not think a women-only approach is a feasible way forward. A majority of individual and organisational consultees thought that both women and men should be included in the relevant hate crime characteristic (or that the category should not be restricted to women only). Several organisations supporting male victim-survivors of crimes such as sexual offences and domestic abuse expressed serious concerns about the message that a women-specific approach would send to male victim-survivors of these offences. They felt this message would be particularly acute if sexual offences and domestic abuse were not excluded.

We also note that there was significant disagreement surrounding whether “sex” alone should be included in legislation, or whether the broader term “sex or gender” should be adopted.

Consultation responses therefore revealed a wide range of contrasting arguments, and a distinct lack of consensus in relation to sex or gender-based hate crime. It is difficult to argue that any of the models for reform that we have considered in this chapter carry significant stakeholder support.

5.380 In light of these four key reasons, we do not recommend that sex or gender should be added as a protected characteristic in hate crime laws.

Recommendation 8.

5.381 We recommend that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences and enhanced sentencing.

Our preferred option, if sex or gender-based hate crime were to be introduced

5.382 Our view is that hate crime legislation is not the right way to approach the issue of violence against women and girls. However, given the need to proceed with caution in this area, we think it is important to identify the most suitable approach if Government were to decide to add sex or gender as a hate crime characteristic. We are concerned that simply adding sex or gender to current hate crime laws - such that these laws would apply to sex or gender in the way they apply to the existing characteristics of race and religion - could have significant negative consequences.

5.383 It is our view that only applying sex or gender hate crime in the contexts in which it is most suitable, namely harassment and abuse (Option 2c) raises the least serious challenges out of those we have considered. The key benefit of Option 2c is that it is very targeted, strengthening the law’s response in areas that are less susceptible to the range of suitability concerns identified in our consultation paper and by consultees. These areas include misogynistic online abuse and harassment in offline public spaces - the scale of which has largely been highlighted in relation to women.

5.384 These represent two of the contexts upon which “misogyny hate crime” proponents have focused most heavily and are the contexts where comparisons between misogynistic hatred and other forms of hate crime are perhaps most obvious. Therefore, if Government were to introduce sex or gender-based hate crime, we recommend that limiting it to public order, harassment and communications offences (Option 2c) would be the best approach.

5.385 We are also persuaded that legislation which incorporates sex or gender-based hate crime should use the most inclusive term in this context, namely “sex or gender”.

Beyond hate crime legislation

Online and offline harassment directed towards women

5.386 Despite our view that hate crime is not a suitable way to approach violence against women and girls, it is very clear to us, from the evidence we have encountered during our pre-consultation and consultation period, that violence against women and girls is extremely prevalent and deeply harmful.

5.387 Questions about the role that the law can or indeed should play in responding to violence against women and girls are inevitably broad, complex and go beyond our terms of reference. However, this review has highlighted the need for further work on whether various forms of violence against women could also be addressed by other legal mechanisms.

5.388 One of the leading concerns that proponents of “misogyny hate crime” have cited is harassment and abuse of women - both online and offline. We recognise that this is a serious and prevalent problem. Our consultation paper on “harmful online communications” noted the scale and impact of online abuse against women in particular:

Before starting our work on abusive and offensive online communications, we engaged in a public consultation to ask whether it was a suitable project for us to undertake. During this consultation, one concern repeatedly raised was that women are disproportionately likely to be affected by online abuse.422

In 2017, Amnesty International reported that nearly a quarter (23%) of the women surveyed across eight countries said they had experienced online abuse or harassment at least once, and 41% of these said that these online experiences made them feel that their physical safety was threatened.423

The online abuse received by women is qualitatively distinct. For example, Laura Thompson, a PhD researcher at City, University of London, has found that abuse of women on dating apps displays two misogynistic themes. The first of these themes is the “not hot enough” discourse: many men used appearance-related insults to suggest that those women who had rejected them were “fat” and “ugly” with resulting inferior “value” in the online sexual marketplace. The second theme is the “missing discourse of consent”: “pickup lines” used by men often took the form of aggressive sexual invitations, and messages from men to women often escalated to include threats of sexual violence and victim-blaming sentiments.424

The scale and qualitative nature of abuse received by women, especially high-profile women, can combine to produce acutely harmful impacts. In their report, Amnesty International included testimony from Laura Bates, founder of the Everyday Sexism Project and author of the book Everyday Sexism, who said that she received around 200 abusive online messages per day, even before she became high-profile:

The psychological impact of reading through someone’s really graphic thoughts about raping and murdering you is not necessarily acknowledged. You could be sitting at home in your living room, outside of working hours, and suddenly someone is able to send you an incredibly graphic rape threat right into the palm of your hand.425

5.389 For the reasons we have presented, we do not think that hate crime laws are the best way to respond to this behaviour. Although partial recognition limited to public order, harassment and communications offences (Option 2c) would be specifically targeted towards this conduct, it is not without problems. Option 2c is vulnerable to criticisms that adding sex or gender to hate crime laws is tokenistic, or that the protection of sex or gender is somehow lesser, because it only extends to a very small number of offences. Its selective nature makes it more complicated than other hate crime models and the fact that Option 2c looks very different to other forms of hate crime recognition might damage understandings about existing hate crime laws, and the conduct it seeks to address.

5.390 More fundamentally, a hostility-based hate crime model would not cover much of the wrongful and harmful conduct identified in these contexts. For example, the use of aggressive sexual invitations or messages from men to women online. 426If abuse of this nature did not include an explicit gendered slur, it is unlikely that a sex or genderbased hate crime aggravation would be applied.427

5.391 In our view, it is worth considering whether a bespoke public sexual harassment offence could represent a better targeted response to such conduct than hate crime legislation via Option 2c.

5.392 Existing offences which currently apply to abuse and harassment of women in public spaces are quite heavily focused on threatening and abusive words, and disorderly behaviour.428 Any hate crime approach would rely upon these existing offences, and the hostility test and the preference for the demonstration limb compound the focus on a specific form of insulting words being used.

5.393 By contrast, a specific offence addressing public sexual harassment might be crafted in a way that better captures the degrading and sexualised nature of the behaviour that frequently occurs in these online and offline contexts.

5.394 In this regard we note that the Government’s recent VAWG strategy stated:

We are looking carefully at where there may be gaps in existing law and how a specific offence for public sexual harassment could address those. This is a complex area, and it is important that we take the time to ensure that any potential legislation is proportionate and reasonably defined.429

5.395 Such an offence goes beyond our terms of reference, and we therefore have not given it detailed consideration, nor consulted on its potential scope. We agree with the Government that it is important that care is taken to ensure that any such offence is proportionate and well-defined. Establishing the content of an offence of this nature would require further analysis of a range of questions. For example, we have heard from stakeholders that sexual harassment of girls in the street starts at a very young age. Therefore, one issue would be whether sexual harassment of children requires different legal treatment to sexual harassment that is directed towards adults. It would also be necessary to consider the threshold at which conduct should be criminalised. For example, should it be necessary to prove that the defendant intended to cause the victim to experience sexual harassment, or should it be sufficient that the conduct was such that a reasonable person in the position of the victim would have experienced it as such?

5.396 These are important questions that warrant careful consideration. Given the obvious concern about the effectiveness of the current law in this area, we recommend that government take this issue forward by way of a further review of whether there is a need for a specific offence of public sexual harassment, and what form it should take.

Recommendation 9.

5.397 We recommend that Government undertake a review of the need for a specific offence of public sexual harassment, and what form any such offence should take.

Other Law Commission projects that relate to violence against women and girls430

5.398 The conduct captured by Option 2c and discussed above, i.e. online abuse and harassment, only forms part of the spectrum of crime that is associated with violence against women and girls.

5.399 When it comes to improving the law’s response in other areas, such as sexual or domestic violence, we think this can also be better addressed through reforms outside hate crime legislation. Examples of Law Commission work in this area include:

The Government’s VAWG strategy

5.400 More widely, the Government has recently introduced the Domestic Abuse Act 2021, announced a review into sentencing for domestic homicide,437 and published its tackling violence against women and girls strategy in July 2021.438 The key initiatives in support of this wider strategy are as follows:

Care Bill) and to create strategies for the police on effective ways to respond to street harassment and stalking.

Chapter 6: Recognition of age in hate crime laws

INTRODUCTION

If there is evidence that the victim was deliberately targeted for their vulnerability, this will still make an offence more serious for sentencing purposes.

In such cases, evidence should be gathered and presented in such a way to ensure that the judge is able to properly reflect the seriousness of the offence when passing sentence.

Recognition of age in hate crime laws in other jurisdictions

Current approach to age in law enforcement and sentencing in England and Wales

THE CASE FOR RECOGNISING AGE IN HATE CRIME LAWS

offences and sentencing framework, prove workable in practice, represent an efficient use of resources, and is consistent with the rights of others.

Applying the demonstrable need criterion to older people

Where the victim is 65 or over, any criminal offence which is perceived by the victim or any other person, to be committed by reason of the victim’s vulnerability through age or presumed vulnerability through age.463

The context of elder abuse

A single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person. This type of violence constitutes a violation of human rights and includes physical, sexual, psychological, and emotional abuse; financial and material abuse; abandonment; neglect; and serious loss of dignity and respect.464

charity, commissioned a survey, “Growing old in the UK 2020”, to discern public knowledge and understanding of elder abuse. Of the 2500 adults surveyed, one in five respondents either had personal experience of abuse as an older person (aged 65 years or older) or knew an older person who had been abused.468

Criminal targeting in other contexts
Violence against older women
Is this criminal targeting linked to hostility or prejudice towards old age?

While crimes against older people which are committed due to the victim’s perceived vulnerability comprise a much bigger problem than crimes motivated by hatred or prejudice due to the person’s age, they (Action on Elder Abuse) were nevertheless aware that the latter type of crime can also be an issue for many older people. This might be due to perceptions that older people receive more state support (including financial support) than younger people, generational hostility or disrespect towards older people. They often received calls to their Helpline regarding verbal abuse, harassment or general anti-social behaviour from younger people, with many older people telling the charity that they believe they are being targeted because of their age.481

Lack of clear data
Link between elder abuse and other interpersonal abuse

absolutely no evidence that violence/abuse against older people is usually, often, or even sometimes committed by offenders who have a hatred of, or hostility towards, older people.489

Exploitation of actual or perceived vulnerability

Older people may sometimes be more vulnerable; not because they are older, but because of the circumstances in which they find themselves. Some may experience age-related illness or disability; some may be hard of hearing or have difficulties with their sight; for some, their speed of thought, mobility or movement may be slower than in younger people.492

carer or the fact they are living in a care home, 500or are socially isolated can increase vulnerability. Whilst these factors might be more prevalent at certain ages, they arguably constitute circumstances of a person’s life, rather than an inevitable feature of older age. There are many different people, of different ages, who depend on carers, live in care homes or who are socially isolated.501

Violence against older women
Crimes against young people
Is this crime linked to prejudice or hostility towards young age?
Prevalence of crime that is based on hostility or prejudice towards young age

Additional Harm

Additional harm to the primary victim

This younger group were often still very active, with many in full-time employment. Throwing themselves into their daily lives was a coping mechanism described by many of these participants, helping them move on from the emotional impact of being a victim of crime.

By contrast, those typically aged 80 and over did not have the same opportunities to distract themselves. These participants described constantly reflecting on the crime, leading them to feel upset and more nervous about future incidents.513

Secondary harm to members of the targeted group
Harm to society more widely

Suitability

Difficulties in proving the aggravation
The potential for double counting
Potentially harmful consequences
Disrupting existing child abuse frameworks
Stereotyping based on vulnerability
Whether hate crime is an appropriate way to characterise the offending

CONSULTATION

Speech for everyone and that people do not have the right to shut down debate, discussion or conversation on the basis that it might cause offence.”

Demonstrable need

Crimes against older people

Yes. Older people experience a range of behaviour targeted at them seemingly because of their age specially harassment and what would constitute as anti-social behaviour. Some of this behaviour is explicitly targeted at their age while other may be linked to vulnerabilities posed by age. From a practical perspective, age as a protected characteristic would enable more support to be put in place and a way for people to receive protection from these behaviours.

We hear regularly via our helpline from older people who feel discriminated against, verbally abused or harassed and bullied because of their age.

In addition to the loss of life, it is also clear that older people have faced significant age discrimination, ageism and hostility throughout the pandemic including:

The number of crimes against older people that reach the attention of the police, and are subsequently prosecuted, are likely to represent only a small percentage of the reality facing older people.

Dr Fitzgerald et al528 concluded that this is because:

[M]any crimes are ‘social worked’ and are diverted down a non-criminal adult safeguarding route, and these include criminal actions in care homes and hospitals.

The authors went on to acknowledge concerns that:

Adult Safeguarding may be reinforcing an attitude that abuse of older people does not constitute ‘real crime’ and can therefore be dealt with by the social care sector without criminal justice involvement. 529As few as 6% of older victims report abuse to the police. In 2013/14 there were 28,000 substantiated adult protection referrals regarding elder abuse and yet there were only 3,317 referrals by police to the CPS in England and Wales. In 2013/14 18,932 crimes against people aged 60+ were recorded in Wales and yet there were only 194 successful convictions.530

There are certain crimes which disproportionately affect older people including abuse committed by a loved one or carer, cybercrime or theft from a residential dwelling. These crimes are often targeted towards older people because of their age or perceived vulnerability. Although crime reporting in the over 75s and 65-64 year-olds age groups is relatively low compared to other age category, there is evidence that there is a reluctance amongst older people to report crime.

Furthermore, a relatively low number of crimes against older people are prosecuted when compared to other protected characteristics. As outlined in the Her Majesty’s Inspectorate of Constabularies and Fire & Rescue Services (HMICFRS) The Poor Relation Report from 2019, this is due to existing barriers.

There is evidence that older people can be particularly targeted by criminals on the basis of their age, for example financial crimes.

Many thousands of older people experience abuse which may include physical abuse; domestic violence; sexual abuse; psychological or emotional abuse; financial or material abuse; organisational or institutional abuse; neglect or acts of omission; and coercive control.

They went on to cite data from a survey carried out for the Commissioner, which found that:

almost 1 in 8 older people in Wales (12% aged 60+) feel that they have been discriminated against because of their age.

There is potential for abuse or neglect towards older persons due to their vulnerability as being less mobile or alert, among other traits they exhibit. Due to this, there is also potential for criminals to target them for incidents like robbing.

Is this criminal targeting linked to hostility or prejudice towards old age?

Whilst we accept that there is a certain degree of ‘situational vulnerability’ that leaves some people more susceptible to becoming a victim of fraud, there is also evidence that criminals; including organised crime groups, specifically target known properties as a result of them being older (and/or isolated, alone, lacking capacity).

They are further at risk of becoming repeat victims due to their age, as well as any other factors that may be present.

We would argue that there is a definite prejudice to commit these crimes against older people.

Motivation cannot be explained on the basis of vulnerability alone. Vulnerability may create dependency circumstances, but it cannot explain premeditated cruelty with regard to some crimes against older people, any more than it can in relation to disability hate crime. There are many examples of cruelty and callousness in relation to older people, where vulnerability or opportunism alone cannot provide a satisfactory explanation of motivation. Hostility often manifests as an attitude of contempt coupled with a conscious intention to do harm. This intention manifests in different ways. For instance, a person might express it covertly or through gossip and slander or more explicitly through verbal or physical attacks.

While we recognise that debates around intergenerational fairness, for example, have become more common, there is currently little evidence of prejudice or hostility towards older or younger people because of their age specifically. We acknowledge that hate crimes against younger people are conceivable, but the evidence suggests that this is motivated by other protected characteristics, such as race or sexual orientation.

We recognise the issue of offending based on the exploitation of the perceived vulnerability of older people, where there is arguably no hostility but where the identity of the victim is relevant. We believe that the exploitative nature of this offending would be more appropriately addressed separately from hate crime through vulnerability sentencing aggravations. We would encourage the UK Government to consider the effectiveness of an ‘exploitative crime aggravation’ as to prove this a prosecutor would not need to prove that the victim were indeed ‘vulnerable’ or ‘vulnerable in the eyes of the accused’.

Offences against elderly people, in the experience of our members, are often not motivated by hostility to the elderly but by the cynical targeting of elderly people because they are vulnerable. We agree that a large number of crimes targeted toward older people would therefore struggle to fit within the existing hostility test and satisfying this legal test will be very difficult.

A focus on the exploitation of an elderly person’s vulnerability may therefore be better captured by existing sentencing guidelines, rather than a statutory aggravation based on age. As the consultation paper notes, the Sentencing Guidelines ‘overarching principles: seriousness’ states that targeting a vulnerable victim because of their old age or youth makes the offender more culpable and the offence more serious. Most guidelines for specific offences (e.g. assault) include an aggravating factor where the offence is motivated by, or demonstrating, hostility based on the victims’ age (be it old or young).

We agree that it may be challenging to prove motivation due to hostility towards older people rather than targeting of an older person due to perceived vulnerability. We also agree that exploitation of vulnerability is better addressed through existing provisions in sentencing guidelines. However, that does not mean that the protection for older people should not be available under hate crime laws.

Although we recognise that ‘elder abuse’ and crimes against children and young people are important concepts that should be given due attention and consideration, we are unsure whether ‘age’ or ‘older people’ should become a protected characteristic under hate crime legislation. This is primarily due to considerations of the presence of hostility in crimes against older people/people due to their age. We do not feel that the available evidence demonstrates that crimes against older people are motivated by hostility towards age, but rather are motivated/facilitated by the defendant’s consideration of the victim as vulnerable. This applies to crimes committed against younger people and children too.

The police and CPS already acknowledge the vulnerability inherent in crimes against older people. The Northumbria Police and Crime Commissioner’s Office fed into the current CPS policy ‘Older People: Prosecuting Crimes against’. This defines crime against an older person as: ‘Where the victim is 65 or over, any criminal offence which is perceived by the victim or any other person, to be committed by reason of the victims vulnerability through age or presumed vulnerability through age.’

The policy explicitly recognises that the older people are targeted because of their vulnerability, rather than hostility towards them as a group. The seriousness of targeting vulnerable older people is acknowledged and reflected in the CPS guidance to investigators and prosecutors both pre- and post-charge.

At the charging stage, the CPS are advised to consider vulnerability as part of their assessment of whether it is in the public interest to charge a crime. As per the Victims Code of Practice, where the offence was motivated by any form of prejudice, including against the victims age or the suspect targeted or exploited the victim or demonstrated hostility towards the victim based on their age, it is more likely that prosecution is required. Prosecutors are also advised to review crimes against older people to determine whether disability was an aspect of the crime. If so, a disability hate crime charge/enhanced sentence can be pursued.

Post-charge, investigators and prosecutors are advised to gather evidence of the victim deliberately being targeted for their vulnerability, to present to a judge at sentencing. This will make an offence more serious for sentencing purposes.

Providing this guidance is routinely translated into practice, we feel that this current approach is sufficient to capture the reality of crimes against older people and the motivations behind them, as well as reflecting the abuse of vulnerability and/or hostility attached to such crimes. We therefore do not believe that it is necessary to add age as a protected characteristic under hate crime legislation.

There is very limited evidence that older people are routinely targeted based on prejudice or hostility towards them as a group. It has been suggested that (some of the) criminal victimisation of older people share many of the core elements of hate crimes: for example, there is some evidence that older people are sometimes specifically targeted, particularly through scamming and door-stop fraud and the attacks can cause fear and apprehension within the elderly community. However, there are several important distinctions between elder abuse and targeted criminal offending against older people, and hate crime.

Bows noted that national data indicates that older people are the least likely age group to experience crime. Bows acknowledged that there is some data that suggests older people are more likely to be subject to particular types of scams, such as doorstep scams, but argued that this may be due to the lifestyles of older individuals:

National data shows older people experience less personal crime (violence and property) than younger groups. This is also true of economic crime: national data indicates older people experience fraud less frequently than younger groups and that those aged 75 and over experience the least fraud of all age groups. For example, mass marketing fraud (emails, texts, letters or phone calls from individuals or companies requesting money) is experienced most frequently by those aged 2544 - those aged 75 and over are the least likely to experience such communications. Several studies outside of the UK have also found that younger people are more at risk of fraud overall than older people. Consequently, there is currently insufficient evidence that older people are, in general, being targeted because of actual or perceived vulnerability based specifically on age. There is some limited data that indicates older people may be more likely to be victims of particular types of scams, for example doorstep scams, although the lifestyles of older individuals (at home more and therefore more likely to answer the door) may contribute to this. Doorsteps scams form a small proportion (17%) of all scams, and for people aged 65 and over only 3% of the scams they experience are doorstep crimes, compared with 5% of those aged 18-24, thus the relative risk for older people remains low. Moreover, as most fraud is experienced by younger people, the (potential) higher rates of victimisation for one particular type of fraud (e.g. scams) does not justify an overall widening of substantive laws based on older age, particularly when the existing fraud legislation already captures these offences.

Bows went on to note that some small exploratory projects into older people’s attitudes and beliefs around their victimisation indicate that older victims do not think their victimisation was because of hostility towards their age:

Furthermore, although there is limited research exploring older people’s attitudes and beliefs around their actual or perceived victimisation, some small exploratory projects have indicated that older victims do not believe their victimisation was because of hostility or hatred of older people. Similarly, professionals working in the criminal justice system have warned that the introduction of age-based hate crimes would be futile on the basis that few cases involve hatred or hostility and prosecutions would therefore be infrequent. A further problem can be identified here: proving the motivator for the offence. This was noted by the Law Society in Scotland, who have pointed out the difficulty with incorporating age into the hate crime framework centres on proving the motivation for the offence was “hostility based on age”, rather than vulnerability. Lord Bracadale conducted an independent review of hate crime legislation and similarly concluded elderly people are generally targeted for hate crime because of their age but rather that they may be targeted based on criminal opportunism due to actual or perceived vulnerability.

Bows acknowledged arguments that the deliberate targeting of older people because of their actual or perceived vulnerability provides justification for the recognition of age as a hate crime characteristic, because this deliberate targeting is akin to the targeting of groups currently protected by hate crime laws. However, Bows concluded:

However, such claims are not supported by data on criminal victimisation - both the crime survey and police data reported by the Office for National Statistics report those aged 60 and over experience less crime than any other age group. Similarly, independent and academic research into different crime types finds older people are generally lower risk, as described earlier in this section. There is, consequently, insufficient evidence of criminal targeting of older people based on prejudice or hostility, or vulnerability.

Our view is that elder abuse is a domestic abuse issue. This is supported by the evidence of the nature of the abuse and who the perpetrators are. The evidence also supports that often the abuse is because the individual’s circumstances make them more ‘vulnerable’. It is their ‘vulnerability’ that makes them the target, rather than their age. Also, there are circumstances where the victim has been subjected to abuse over many years and the abuse has only been brought to the attention of the CJS later in the individual’s life. So, the abuse is being dealt with when they are old and is not committed because they are old.

Crimes against younger people

We support the inclusion of age as a protected characteristic. Older people appear to be facing higher levels of discrimination, marginalisation, exclusion, and also hate-based attacks. Young people and youths are also discriminated against in many ways. Both older and younger people are likely to experience degrees of prejudice and discrimination when seeking recourse after identity-based attacks by those tasked with implementing hate crime laws, namely but not only the police, CPS, and the wider justice system. It is therefore important for those targeted because of their age, for those charged with their protection and with implementing hate crime laws, and for wider society to comprehend and recognise that these groups are protected. For groups and communities who face high levels of discrimination and prejudice, enshrining this characteristic directly contributes to embedding normatively as well as through legislation, their equal access to the law and its protections.

Our work in and with local communities in England has found that many elder people have experienced hate-based incidents where hostility and prejudice towards their age was a factor. We have also found that it is common for older people with a visible disability are particularly vulnerable to an attack.

LGBT+ older people routinely face discrimination across many areas of life. Stonewall’s research, LGBT in Britain: Home and Communities (2018) found that 42 per cent of LGBT+ people aged 55-64 and 35 per cent of LGBT+ people aged 65+ do not feel comfortable walking down the street while holding their partner’s hand.

LGBT in Britain: Hate Crime and Discrimination (2017) found that LGBT+ young people are at higher risk of experiencing an anti-LGBT+ hate crime than any other age groups. Findings revealed that 33 per cent of LGBT+ people aged 18-24 -including 55 per cent of those who are trans - had experienced a hate crime or incident based on their sexual orientation and/or gender identity in the year preceding the survey. The report also highlighted how LGBT+ young people were particularly unlikely to report hate crime to the police, with only 12 per cent doing so.

Recently, there has also been a surge of hostility towards younger generations due to the COVID pandemic and their supposed role in spreading it. Thus, even if the level of hate crime is not as drastic as other protected groups, age should be recognised as a protected characteristic.

Additional harm

To the primary victim

The Think Jessica charity reports that the impact of scams can include depression, withdrawal and isolation from family and friends and the deterioration of physical and mental health. People defrauded in their own homes are 2.5 times more likely to either die or go into residential care within a year, and in some cases, victims have considered, attempted or committed suicide.534

There is compelling evidence that the impacts of fraud, and other offences, may be severe for (some) older people, including increasing the risk of the victim going into a care home. However, impacts vary by individuals and it is not universally the case that older people will experience more adverse effects than younger victims. For example, a study commissioned by Citizens Advice Scotland found younger people were twice as likely to feel embarrassed or ashamed about scams as older people. Thus, if age were to be included, it would need to incorporate both young and old in order to accurately capture the groups who are ‘vulnerable’ to experiencing crime and being specifically targeted. In doing that, however, we essentially include everyone as a potential victim of hate crime and thus there is nothing to distinguish crimes from hate crimes.

To members of the wider group

Hate crimes do not occur in a vacuum; they are a violent manifestation of prejudice, which can be pervasive in the wider community. Ageism is endemic within our society, it creates a stereotype of older people who are collectively perceived as frail and vulnerable, an economic and health burden, and a reminder of mortality. It is of concern that ‘age-based discriminatory practices can be found throughout society ... pervading the fields of culture; physical appearance; public image; language; media and advertising; work; and healthcare’.536

There would be value in highlighting that both crime itself, and the fear of crime can increase feelings of isolation and decrease community involvement.

Suitability

Difficulties in proving the aggravation

We have no comment on this proposal. However, if the existing two-limbed hostility test were to be retained we consider that there would be practical difficulties in proving ‘age-based’ hate crime in cases where the victim was targeted because of their actual or perceived vulnerability, rather than because of hostility towards older people. In this respect the same difficulties which are currently experienced in prosecuting crimes against disabled people who are targeted for their actual or perceived vulnerability, rather than because of ‘disablist hostility’, would apply.

We note the Law Commission’s point that available data indicates that older people experience less crime. We also acknowledge the Crime Survey for England and Wales (CSEW) data which recorded victims’ perceptions of why they were targeted for personal and household crime, estimating the average annual incidence of hate crime over a two-year period from March 2016 to March 2018. The data showed that 81,000 people felt they had been targeted for personal crime based upon their age.

We feel that the tests for including ‘Older People’ within the hate crime regime have been met by the law commission review, however, it would be very difficult to prove hostility or prejudice towards age, rather than exploitation on the basis of vulnerability of older people. It should be noted that the UK has an ageing population and hate crime motivated by age is potentially an issue that could grow in prevalence over time. Any change to the legislation needs to be more than symbolic and actually be able to lead to prosecutions. More work needs to be undertaken to assess the likelihood of a sufficient number of successful prosecutions would be.

Similar to the previous answer, age would fail the suitability criteria test, as policing age-related hate crimes would be difficult to police and prove. For example, if a young person in their first job, is called a whipper snapper, is that a hate crime? Would we expect the police service to investigate this as a hate crime and redirect resources from investigating other hate crimes?

The equality of the offence should also be considered, older persons are more likely to be considered victims of age-related hate crime than younger people.

The case for including age as a hate crime characteristic is yet to be proven, an evidence base needs to be accumulated before even discussing age as a hate crime characteristic, which does not exist yet.

As we have heard from one of our members that considering age as a defining characteristic in terms of vulnerability in regard to hate crime could be challenging to operationalise in practice, we do not currently have a response to this question.

Potentially harmful consequences

There is concern that broadening the characteristics to include age may dilute what the people in the currently protected groups are experiencing. The scale of referrals must be considered and whether Police and support agencies would have the capacity to deal with the rise in reports that including this characteristic may produce. We are aware that our commissioned Hate Incident Support Service would be unable to cope with the potential demand these additional cases may bring.

As the consultation paper also notes, there are of course a number of criminal laws specifically related to offending against children. While the consultation does not envisage that age related hate crime law would be applied to those offences, if they were to be, they could be unhelpful and disrupt the support specialist agencies are able to give victims of child abuse (para 13.109). In our view, this risk militates against including age as a characteristic in the hate crime legislation.

Is hate crime an appropriate way to characterise the offending?

As well as the issues with defining and conceptualising vulnerability discussed in this submission, there are broader concerns that widening the scope of hate and hostility to include vulnerability will essentially dilute the purpose and meaning which underpinned the core objectives for introducing hate crimes. By widening hate crimes to include those deemed vulnerable, the range of victims that could be included could potentially be so wide that almost everyone can be a victim of hate crime, rendering the legislation meaningless and removing the special status that currently attaches to these crimes and in essence making hate crimes indistinguishable from the more general versions of the offences (for example assault).

It is of course true that older people can be vulnerable (as can younger people) and that older age may create particular vulnerabilities. However, it is also true that young(er) age can create vulnerabilities, and that other demographics, environments and lifestyles can independently and collectively render individuals and groups more vulnerable to violence and abuse (as well as other crime). For example, in the context of ‘elder abuse’, scholars have concluded that vulnerability is as much a product of a situation or relationship as it is a characteristic of an individual per se.

The application of age-based policies and legal reform based on vulnerability theory has been sharply criticised for being paternalistic and disempowering. Roulstone and colleagues state that “as a term, ‘vulnerable’ has connotations of weakness and is generally applied by members of a powerful majority to oppressed groups. There is arguably something inherently paternalistic in the act of designating another as ‘vulnerable’”. In addition to oversimplifying vulnerability and victimisation by categorising older people as inherently vulnerable, perceiving all older people to be vulnerable based on chronological age demonstrates prejudicial conceptualisations of older age, the very thing (prejudice) that hate crime legislation has been introduced to address.

“Older people” or people of all ages

We are of the view that age-based protection should be limited to ‘older people’ since they are most likely to be targeted for their age. While it can be argued that young people are also victims of crime in different ways and are targeted, this is not necessarily due to prejudice. It can also be argued that certain prejudice experienced by young people (e.g. prejudice and perceptions about young people as ‘troublemakers’) is often linked to other types of prejudice namely race and class, rather than age specifically. Additionally, protection for young people exists in other parts of the law and children are treated differently by the law, due to which inclusion here would create more complexity.

I would support any age provision being limited to older people as children as already legally defined are subject to a differing range of legal provisions and support. I would also suggest that this may not meet the criteria of demonstrable need. Child protection is a vital component of our policing and safeguarding landscape but I would not suggest its inclusion within a specific future hate crime act.

Certain age groups are deemed more vulnerable, for example, the elderly and children. Children, however, are protected through various legislation and statutory duties to be upheld by statutory agencies etc.

We also agree that it is unlikely for age-based hate crime laws to be applied for child abuse crimes, but it is still important that the existing frameworks are not diminished due to the introduction of new protections. It may be that limiting the age-based hate crime protection to older people could be helpful in this.

We believe age-based hate crime protection should include people of all ages. Our work in and with local communities in England found instances where older and younger people have experienced offences where they believed their age was a factor.

It should include people of all ages so there is parity with the Equality Act 2010.

It should include all age ranges to retain the Human Rights and inclusive nature of the legislation while recognising that there are unlikely to be a significant number of offences focused on young people.

As discussed with the Law Commission and referred to in the consultation document, limiting age-based hate crime to older people would be a powerful statement about the discrimination and abuse that older people can face, and it would make it clear that older people were protected by hate crime law. However, we believe it would be right for people of all ages to be included but that in communications about the changes to the law older people should be explicitly referenced as a group covered by the legislation.

CONCLUSIONS FOLLOWING CONSULTATION RESPONSES

RECOMMENDATIONS FOR REFORM

Younger people

Older people

6.135 However, this reasoning requires evidence that the defendant’s exploitation of the vulnerability of the older victim is based on a prejudice that the offender holds specifically in relation to the victim’s age. As we have indicated, vulnerability does not necessarily derive from age itself. Vulnerability can be attributed to a number of factors that are sometimes correlated with older age, such as disability, and circumstances such as physical and social isolation, but are not necessarily inherent in older age itself. Therefore, even if the exploitation of vulnerability of older persons is considered to be a form of prejudice, it may be difficult to prove that the victim was targeted because of their age, rather than other age-correlated circumstances that may have put them in a more vulnerable position.

6.136 A further issue arises out of this reasoning; whether hate crime is an appropriate way to characterise this offending. Consultees acknowledged that a large proportion of offending targeted at older people constitutes exploitation of their perceived or actual vulnerability. Extending the hate crime framework to cover vulnerability could fail to capture the nuances surrounding elder abuse and crimes against older people and their causes. A number of consultees thought that this offending may be better addressed through sentencing guidelines, which are able to recognise and appropriately characterise the nature of the offending.

6.137 Due to these complex issues, we recommend that older age should not be recognised as a protected characteristic in hate crime laws. We consider that existing sentencing guidelines more accurately capture the nature of the offending. As discussed at paragraph 6.11, existing sentencing guidelines recognise that the culpability of the offender will be greater if they target a vulnerable victim because of the victim’s old age or youth. 540Sentencing guidelines for specific offences also acknowledge that the targeting of a victim obviously vulnerable due to age is a high-culpability factor.541

6.138 We note that the CPS already flags and monitors crimes against older people alongside the legally recognised protected hate crime characteristics (race, religion, sexual orientation, disability and transgender identity). We consider that there may be benefit in the CPS working with police forces to pilot the additional recording of crimes against older people which involve hostility towards the victim’s age. This could provide a more accurate picture of the extent of hostility-motivated crime on the basis of age than the current data available. If concerning trends were to emerge, the inclusion of age in hate crime laws could be reconsidered; at present, however, the evidence base does not justify the inclusion of older age as a protected characteristic.

Recommendation 10.

6.139 We recommend that age should not be added as a protected characteristic in hate crime laws.

Chapter 7: Recognition of other groups and characteristics

INTRODUCTION

The five strands of monitored hate crime are the minimum categories that police officers and staff must record and flag. There are, however, other groups and individuals who may be targeted due to their personal characteristics. Forces, agencies and partnerships can extend their local policy response to include hostility against other groups or personal characteristics, they believe are prevalent in their area or that are causing concern to their community.

SEX WORKERS

Background

reject the term “sex worker” as normalising a practice they consider to be inherently harmful.

The CPS focuses on the prosecution of those who force others into prostitution, exploit, abuse and harm them. Our joint approach with the police, with the support of other agencies, is to help those involved in prostitution to develop routes out.556

Those who sell sex should not be routinely prosecuted as offenders. The emphasis should be to encourage them to engage with support services and to find routes out of prostitution.557

Consultation paper

The “Merseyside Approach” to treating attacks on sex workers as hate crimes

Between 2005 and 2009 there was a 400% increase in the proportion of sex workers reporting to the project Ugly Mugs Scheme making formal reports to police, while the conviction rate for crimes against sex workers in Merseyside that made it to court between 2007 and 2011 was 83%. The rate for cases involving rape and sexual offences was 75%, compared to the national ‘generic’ rate of 58%. As of the end of 2011, 32 victims were known to have received justice, with 25 offenders convicted, an unprecedented number in the UK.565

Consultation responses

Consultation Question 17

We invite consultees’ views on whether “sex workers” should be recognised as a hate crime category.

Summary Consultation Question 4

Should any of the following groups be specifically protected by hate crime laws?

Organisational stakeholders who responded positively to possible inclusion of sex workers within hate crime laws included: The Sex Worker Research Hub, Galop, Inclusion London, Trans Actual UK, National Aids Trust, One25, Manchester City Council, GIRES, Islington City Council, VAWG and Hate Crime Team, London Borough of Tower Hamlets, Welsh Women’s Aid (cautiously agree), Nottingham Women’s Centre, UCLan Students Union (University of Central Lancashire), JustUS, Office of the Police and Crime Commissioner for Gwent, SWGfL’s helplines (this includes the Revenge Porn Helpline, Professionals Online Safety Helpline, Report Harmful Content Helpline), Magistrates Association, Government Independent Advisory Group on Hate Crime.

Organisational stakeholders who responded negatively included: Labour Women’s Declaration Working Group, Equality and Inclusion Partnership, Nottingham City Council, Christian Concern, LGB Alliance, MOPAC, English Collective of Prostitutes, APCC, Woman’s Place UK, Birmingham & Solihull Women's Aid,

The term “sex work”
Arguments made by sex work-specific stakeholders

where the perpetrator is motivated by hostility or demonstrates hostility towards the victim's status as a street sex worker.

From November 2019 - October 2020, 53 women reported violence to One25, but only 29 reported violence to the police, and 9 chose to make Ugly Mug reports.568 One woman reported 3 rapes within 6 weeks. This is a fairly typical pattern over the past 5 years, though exacerbated by COVID-19 removing private, discrete spaces for women to report formally.

Women are also frequently publicly shamed in relation to their street sex work. One service user recently had ‘prostitute’ graffiti put up across the outside wall of her house. She had been having issues with neighbours and experienced verbal assaults in relation to this too. Another service user has been the victim of a poster campaign labelling her as a ‘junkie whore’ in the local community. In both instances this abuse is undeniably linked to the women’s involvement in street sex work.

the circumstances of sex workers in that area.

violence against sex workers. Existing laws should be vigorously implemented, in the context of incredibly low reporting and conviction rates for rape and domestic violence, which “have de facto been decriminalised”.

LGBT groups

"Oh I've had a few instances with work, I once had two guys try and push their way into my apartment, I screamed my head off and managed to push the door closed, another time a client paid then after took out a knife and told me if I didn't give the money back he would stab me, I'm extremely selective with who I see these days because of it" - Transgender Woman, 42, London

“Yes- [hate crime against trans sex workers] happens all the time... I know a girl who was beaten up by two [men] and they tried to hold her down and cut her down below. I also know another girl who was held at gunpoint in south east London in her apartment by a young man. He tied her up with electrical cables and asked her for all her money. Her friend came inside and hit the guy over the head with a baseball bat. Luckily, he didn’t shoot or anything, he just ran away” - Transgender Woman, 26, London

Law enforcement stakeholders

based on data from 1991 to 2000, working as a sex worker in the UK carried the absolute greatest risk of occupational homicide for women. Five times as many female sex workers were murdered compared to female bar staff in the period.

As the NPCC lead for Sex Work, I believe that there is merit in recognising the vulnerability of sex workers, the inherent reticence of the sex work community to report crimes to the relevant authorities and the propensity of offenders to target sex workers in both sexual and violent crimes. I believe that it is necessary for public policy to disambiguate between sex work and sexual exploitation/criminality. and that one way in which this can be achieved is to provide enhanced protections where offenders are shown to have targeted criminality against a sex worker because of their occupation.

Academic responses

there is an issue of suitability as to whether essential protections [for sex workers] should be reflected in hate crime law or in a separate law which gives parity of consideration to these issues.

It is important that the voice of sex workers is heard on this question. Do sex workers themselves believe that are in need of hate crime protection? Subject to consideration of such views, it is my preliminary view that sex workers should be a protected class under the hate crime law.

Sex workers remain one of the most vulnerable groups of people to experience violence and abuse. Much more needs to be done at the policy and legislative level to provide better protection and to enhance the rights of individuals who work in this sector. I remain unconvinced that the inclusion of "sex workers" in hate crime legislation will achieve these protections. I am left uncertain that work or trade is a characteristic that is central to group identity.

Summary of arguments in favour of recognition offered by organisations and professionals
Arguments in favour of recognition offered by individuals

protection is necessary.

sex workers, but they are also targeted in the media, by commentators, and in popular culture for ridicule and derision. Such disparaging and dehumanising activity undermines their safety.”

society (by a lack of access to financial support, for example), leaving them vulnerable to sex crimes and physical attacks they would not face if they weren't sex workers.”

Arguments against recognition offered by organisations
Arguments against recognition offered by personal responses

Sutcliffe get an enhanced sentence for a hate crime? One would hope so - the motivation and intent are the important issue. This can already be dealt with in law as the Sophie Lancaster case demonstrates.”

Conclusion following consultation

R Campbell, “Not getting away with it: Linking sex work and hate crime in Merseyside” in N Chakraborti, J Garland (eds) Responding to Hate Crime: The Case for Connecting Policy and Research (1st ed, 2014) p 55.

ALTERNATIVE SUBCULTURES

Alternative Subculture means a discernible group that is characterised by a strong sense of collective identity and a set of group-specific values and tastes that typically centre on distinctive style/clothing, make-up, body art and music preferences.

Those involved usually stand out in the sense their distinctiveness is discernible both to fellow participants and to those outside the group. Groups that typically place themselves under the umbrella of “alternative” include Goths, emos, punks, metallers and some variants of hippie and dance culture (although this list is not exhaustive).

Demonstrable need

Concrete evidence of the precise nature and frequency of the victimisation of goths is hard to come by, and, as it is such an under-researched topic, much of the evidence is impressionistic.591

Are these crimes linked to prejudice and hostility towards membership of an alternative subculture?

I am satisfied that the only reason for this wholly unprovoked attack, was that Robert Maltby and Sophie Lancaster were singled out for their appearance alone because they looked and dressed differently from you and your friends.593

The prevalence of crimes based on hostility or prejudice towards alternative subcultures

Additional harm

Additional harm to the primary victim

affect their sense of self-worth, self-confidence, security and psychological wellbeing in a manner comparable to the victimisation processes and experiences of recognised forms of hate crime.598

Secondary harm to others who share the characteristic
Harm to society more widely

Suitability

Consultation responses

Consultation Question 18: We invite consultees’ views on whether “alternative subcultures” should be recognised as a hate crime category.

Summary Consultation Question 4: Should any of the following groups be specifically protected by hate crime laws?:

o sex workers

o homeless people

o alternative subcultures (for example, goths, punks, metallers, emos)

o philosophical beliefs (for example, humanism)

Demonstrable need

[A]t every festival and alternative event we go to, people come to talk and sympathise with us for Sophie’s loss, and the strength of the feeling they express is frequently prompted by their fear that they could have shared Sophie’s fate as they too had been victims of unprovoked assaults.

In fact, Sophie and Robert had been assaulted twice before, and similarly to the responses of those in other demonised groups, had no confidence in how the police would respond and so had not reported it.

The disinclination of alternative people to report hate crime is no surprise when you consider the lack of seriousness that such crimes are frequently treated with by the police, even when repeated violence is involved.

[I]f you’re a goth, or a metaller or an emo, for example, you are targeted so often that it becomes almost normalised - for many in these groups it’s part and parcel of the way they live their lives. Most of this harassment is so-called low-level verbal abuse, which can occur regularly, with violent assault thankfully rare.

Research has also shown that the targeting of alternative subcultures shares many aspects with that of the targeting of the recognised hate crime victim groups. By that, I mean that the patterns of victimisation - how often it happens (discussed above) and its forms (verbal abuse, harassment/bullying, violent assault) - appear to resemble, broadly speaking, those of the recognised groups. This is important as indicates that we are probably talking about the same type of crime, but just in a different form.

What evidence there is seems to indicate that these crimes are enacted due to hostility towards visible difference, with the victim ‘othered’ and ‘dehumanised’ in the eyes of the perpetrator. This again seems to resemble the case for the recognised types of hate crime victimisation, broadly speaking, although motivation can vary to a degree between the strands.

Greater Manchester Police has been monitoring this strand since 2013, this has supported work with alternative subculture groups and increased confidence from this group. Although numbers of this type of hate crime reports are relatively low the feedback has been that it is a positive inclusion for this group and well received.

[W]hilst evidence about the precise nature and frequency of victimisation of alternative subculture groups is limited and largely anecdotal, there is enough to support the idea that members are being targeted for having particular characteristics and cultural preferences. Indeed, the testimony of various members of ‘alternative subcultures’ relating to regular verbal insults and bullying is troubling and it speaks to a culture in which such members feel othered from the main body of society. In future, Index on Censorship would suggest a concerted effort, across the UK, is made to record and report evidence of such behaviour so that there are more tangible numbers to review on the matter. That said, we are satisfied that ‘alternative subcultures’ satisfy this criteria as proposed by the Law Commission.

Yes. As someone who has been part of an alternative subculture, I can confirm I have been subject to verbal abuse and discrimination. I also know several people who have been attacked and physically abused based on their subculture.

hate crime legislation should be based on protected characteristics not lifestyle choices. There should be strong penalties for bullying in these cases, but this is not hate crime.

While Nottinghamshire Police does recognise ‘alternative subcultures’ as a category of hate crime, we have not seen enough use of this to indicate that this meets the criteria set out by the Law Commission. Our extensive consultation on the local Hate Crime Strategy also did not raise any issues relating to this.

Additional harm

People who belong to alternative subcultures are just being themselves. They are not ‘adopting’ fashion or behaviours, they are living their life in a law-abiding way, dressing in a way that feels right to them and just being who they are. Hate crime is considered to have greater psychological impact and do more harm to the victim than other forms of crime, because it strikes at the heart of who you are.

There is some cogent evidence to suggest that many of those who belong to an alternative subculture hold a group characteristic which is central to how they see and experience their identity. There is also evidence that certain subcultures are the targets of disproportionate levels of violence which is likely to have additional (distinct) harms. For these reasons, I believe that alternative subculture could legitimately be added to the list of characteristics under hate crime legislation.

It is undeniable that hate incidents and crime have a collective impact on others who share the targeted characteristic and therefore commit a secondary harm. Sophie’s murder significantly impacted on the feelings of safety in alternative subcultures, particularly in the Goth community. It also acts a reminder to those in the community who have suffered from unprovoked assaults that what happened to Sophie could have happened to them. This fear plays a part in changing behaviours or at the very least takes away feelings of security.

We frequently hear at events or from emails or from posts on our social media, that people have had to change their dress or behaviour since they were too afraid to be themselves. When you actually weigh up the importance of what is being said, we are living in a society where you can’t dress in certain clothes or have a certain hairstyle or a certain ‘look’ without the fear, or reality, of attack. When you feel the only option to keep safe is to persistently reject who you are, psychologically that denial of self and the subordination of identity characteristics, is very damaging.

From the research into the targeting of alternative subcultures it seems as though there is the same ripple effect in these communities too, with, for example, the murder of Sophie Lancaster causing widespread shock and distress among them.

There are constant assumptions about people, based on how they look: they are drug users, alcoholics, criminals. They have no morals. When society judges in this way, how can it not affect a person’s education, career and life prospects when people with these views are making decisions that affect your life?

Index on Censorship agrees that there is persuasive evidence, from both members and academics, that membership of a subculture is central to the identity of the individual. As such, attacks on the specific characteristics of that subculture may be felt as attacks on identity and affect self-worth and self-confidence.

It is difficult, however, to argue that ‘alternative subcultures’ are the subject of additional harm in the sense of systematic or historic marginalisation in the same way that most of the current or proposed protected characteristics have been. This is particularly true when considered against historic racial, religious, transphobic and homophobic persecution or violence and prejudice against sex workers and the homeless.

Suitability

what’s less clear is the where we draw the line with regards to what qualifies as an ‘alternative subculture’ and what doesn’t. While I can see that goths, emos, punks and metallers - the four that are often listed as typifying such subcultures - should be included in the list, there is also an argument that others (especially as there is some evidence that that they have a history of being targeted due to their identity too), such as mods, who while not looking ‘strikingly different’, should nevertheless be included too. If that were to happen then we once more have to face the ‘age old’ debate that blights the concept of hate crime more broadly, which concerns where we can draw these fairly arbitrary lines that include some and exclude others, the ethics of doing so, and who has the moral authority to do this anyway.

I nevertheless think that alternative subcultures should be recognised as a hate crime victim group - if perhaps for no other reason than everyone has the right to live their life free from harassment and abuse, and if their victimisation matches that of the recognised groups and the group fits the ‘moral framework’ of a hate crime victim group too, then they should be included.

Any definition of ‘alternative subculture’ would, by its very nature, have to be broad enough to include any group that shares similar traits. Indeed, the Sophie Lancaster Foundation adopts a non-exclusive definition that is focused on groups with ‘a strong sense of collective identity’. This definition, and any other like it, is likely to cause ambiguity and confusion as to the law. If the public is unsure about what is considered an 'alternative subculture' by the courts, they are more likely to avoid expressing opinions and partaking in legitimate dialogue. This would result in an unacceptable chilling effect on freedom of speech.

In terms of enforcement, a broad definition raises difficult questions about what level of connection to an alternative subculture a person would need to have to be considered a member, how this connection would be measured in reality and how the police and courts will identify and categorise such membership. Such questions only serve to augment the ambiguity surrounding the definition of ‘alternative subcultures’.

No, this is a lifestyle choice. As a former goth and emo, I never expected everyone to be kind to me or accept my identity or appearance for work I would clean/scrub up to a more neutral look.

example:

There is academic literature that critiques the expansion of hate crime and some that supports this. If hate crime expands too broadly then it's no longer distinct from other crimes.

No. Subcultures change over time and space and cannot be easily defined. We have existing laws against committing crimes that need to be upheld and enforced, rather than adding ever more categories.

This risks the ludicrous situation of criminally based lifestyles falling under these laws. For example, paedophilia loving groups could say they are a subculture and be covered. Violent admiration groups, violent football supporters could all legitimately argue they are a subculture etc

and:

I think consideration would be needed for each alternative sub-culture, rather than a mass approval. For example, neo-nazism or extremist subgroups should not be protected.

As a partnership we have mixed views on this one. Some say ‘no’ because it is something that a person chooses, and it may be an identity that can be changed at some point and may well be temporary. Others felt it is like Religion and Belief and that it is really fundamental to their identity. We remain undecided. We also feel it could difficult to prove. Again, it could dilute the purpose of this legislation which is to protect fundamental identities that people have no choice over.

We would suggest in particular that no group or individual should be protected if they discriminate against or cause harm to others, as this could allow them to then seek enhanced legal protection themselves. As such, any right to a certain subculture being protected by law should stop at the point where the individual or the subculture seeks to or in fact does inflict harm on others.

A clear definition would need to be developed as part of any recommendation going forward. The definition included in 14.68 may unintentionally include many other groups which could even include common perpetrators of hate crime. This needs careful consideration before any proposals for inclusion in the hate crime legislative regime.

Conclusion following consultation

HOMELESSNESS

Consultation responses

Consultation Question 19

We invite consultees’ views on whether “people experiencing homelessness” should be recognised as a hate crime category.

Summary Consultation Question 4

Should any of the following groups be specifically protected by hate crime laws?

o sex workers

o homeless people

o alternative subcultures (for example, goths, punks, metallers, emos)

o philosophical beliefs (for example, humanism)

Organisational stakeholders who responded positively to the inclusion of people experiencing homelessness in hate crime laws included: Crisis, Inclusion London, Galop, The Government Independent Advisory Group

It is our experience at Hodge Jones & Allen that the homeless are deprived of the very basic protection of having a home and are more likely to be targeted for being homeless and accordingly as a minimum we consider that offences against the homeless ought to be protected by hate crime law.620

Would making attacks on rough sleepers or other homeless people [hate crimes] do anything to eradicate homelessness? It is highly unlikely to do so on its own -consider that the first Race Relations Act was in 1965 and look at where we are(n’t) - but it might be a small step in the right direction, it might do some amount of good for those who have to dine on scraps rather than choice dinners, and it is worth doing for all that, even if, as housing practitioners, we have considerable cause to doubt that any such Law Commission recommendation will be adopted by government.623

Organisations working with people experiencing homelessness

“...he was showing me the marks on his body and he said he was being attacked for being homeless. And his words were, why do they attack us, why do they think homeless people are scum?”

Crisis noted that this “further corroborates the existing evidence of the prevalence of targeted attacks on people who are homeless from members of the public”.

parallels between their experiences and those of other characteristics currently included in hate crime laws. There was a feeling that, because misconceptions surrounding people who are homeless are so prevalent amongst members of the general public, homelessness was already perceived as an aspect of identity.

They felt that people saw ‘homelessness’ when they saw a person who was homeless, rather than an individual’s identity. This perception they argued, ultimately leads to it being deemed acceptable to harm someone in that situation. The response said this has wider implications for anyone who is perceived to be homeless, leading to an increased likelihood of additional harm to anyone in this situation.

For those participants that supported changing the legislation, their justifications were largely based on the factors motivating abuse and violence against people

who are homeless. The dehumanisation of people facing homelessness, and the power disparities experienced, led participants to feel that extending hate crime categories would be a step towards redressing these factors.

Most participants felt that the inclusion of homelessness as a hate crime category would give a sense of empowerment to individuals. This was felt both in that an individual could defend themselves in the case they were a target of a hate crime, and in the wider sense that a change in the law would facilitate cultural change over time by challenging the perception and status of people who are homeless in society.

Crisis noted that participants recognised the limits of hate crime laws and the fact that they “were not a panacea”, but that “even with hesitations about the extent of their impact, they (participants) still argued that extending hate crime categories to people who are homeless would be an important step forward in establishing rights and protections for them”.

According to Crisis, this indicates that the value of hate crime laws in recognising unequal treatment can outweigh the known limitations of the laws. Crisis said that participants expressed genuine hope that the changes would result in meaningful impact in several ways, including the fact that it would be a requirement for hate crimes against people who are homeless to be recorded. There was a hope that this would then lead to a better understanding of what people experienced and efforts to reduce hate crimes. One participant stated: “I guess the other side of the coin would be if these crimes were recorded, if it was monitored, then I expect there should be some kind of effort to try to reduce them and so that could be a trigger to some sort of process to look at homeless, or homelessness, in a more thorough way”.

People who are homeless should therefore still be entitled to be protected from discrimination and to enjoy where they live peacefully, in accordance with the Human Rights Act (1998), even if where they live is a public or shared space, given the interplay of structural barriers which detracts from homelessness being a ‘choice’.

As set out in this submission, extending hate crime law categories was felt by participants in the consultation to be a significant way in which people who are homeless could access rights to not be discriminated against.

Participants thought that training and education of the police to better understand homelessness was of paramount importance to make hate crime laws effective. Two participants also highlighted that this would be needed for staff in homelessness services, including hostels.

Crisis emphasised that alongside extending hate crime categories to people experiencing homelessness, Crisis is calling on the Government to repeal the Vagrancy Act 1824 to ensure no one is criminalised and treated inhumanely for sleeping rough.

It is therefore right that, whilst Crisis continues to campaign for the policy changes to end homelessness in Great Britain altogether, we are alert and responsive to immediate measures that can make a difference to the lives of people who are experiencing homelessness now. For this reason, we made the decision to consult with people with experience of homelessness regarding the proposed extension to hate crime categories, to understand if the change was something that people felt would make a difference to the lives of people facing homelessness, particularly given previous Crisis research showing that people sleeping rough experience violence and abuse as a matter of course.

“Three people were killed in the city because they were homeless. They were targeted because they were rough sleeping. There’s no doubt about it. And there’s been loads of other beatings and that kind of stuff.”

“The amount of people who have been convicted for assaulting or doing whatever to people on the streets, I don’t see how it’s in question really. Everything ranging from throwing litter at people, urinating on them, it’s just well known. I don’t think there can be any doubt.”

“I remember when I was on the street, I just got kicked while I was rough sleeping. That’s all.”

“I know one bloke got smashed, he slept on the [LOCATION] with his friend. I asked where his friend was, he got beaten up with a four by two.”

“When I was on the street I was kidnapped by Travellers and forced to work for a few weeks. I know a lot of people that’s happened to, a hell of a lot of people, and I know it still happens. One of the blokes I was with had been there for 9 years.”

“I was kidnapped off the street ... And I was kept in a place for about 5 days and raped by a lot of different men ... That’s probably because I was homeless. They might have been abducting other people, I don’t know, but I suspect it was because I was homeless.”

“A lot of the women I work with, they report men going up to them, exposing themselves, telling them to touch it. ‘If you touch it, I’ll give you a fiver.’ I don’t think if they weren’t homeless that would happen.”

“Other women, waking up, and the same man that is stalking, being at the end of where they are sleeping, intimidating them. It’s creepy. I think there’s a lot of sexual violence.”

“When we talk about somebody sleeping in a doorway and someone pissing on them, or kicking them or setting fire to tents, that doesn’t happen in everyday life. If you see a fight in the bar someone doesn’t just walk up to someone and punch them or kick them, there’s usually been an altercation or something to upset the other person. When we’re talking about hate crime, if somebody has a belief in regards to race what I’ve perceived when I’ve received hate crime due to my ethnicity, it’s not been because I’ve said something to upset them or offend them, it’s been purely because of the colour of my skin, and that’s how I’ve perceived it, there’s been nothing to trigger why somethings occurred. And that’s what’s happening with rough sleeping.”

“We went through a phase, where a lot of service users we worked with, people had tried to set their tents on fire. That tent symbolises homelessness and rough sleeping, and someone’s setting fire to it.”

“It is rough sleeping. It’s there. It’s very easy to identify someone that’s rough sleeping. When someone sets fire to tents, hits people, calling names to someone when they’re walking past because they’re sat on the floor begging, that is targeting someone purely because they are homeless, but in essence homeless on a street level. It’s not because they’ve been offending, it’s because of that person’s circumstance.”

“Society sees homeless people or rough sleepers as low lives and [they] are vulnerable, and easy to target, because they have got no network to support them in society’s eyes. They haven’t got a network to support them or guard them or protect them because they’re a loner sat in a tent or begging.”

“When you’re homeless you’re an easy target. Because it’s not like you’re husbands going to miss you coming home and report you missing. No-one’s going to know. And I think it is done on purpose.”

“One of the issues is shame, when you suffer it, whether it be your gender, your sexuality, your age, your race, everything.”

“I was diagnosed with complex post-traumatic stress disorder. Until I got diagnosed, my life was totally chaotic. Since I’ve been diagnosed I’ve worked out why I don’t like strangers, why I’m scared if the door goes, why if someone who looks like that person comes close I get all panicky. So even though it was years ago, it has had a huge effect on how I relate to other people, and I wouldn’t want to go out of the house. I don’t like talking to people, and being depressed... It’s a lasting impact.”

“People start travelling on public transport. Thus they could be nicked for travelling on public transport plus they’re sleeping patterns could be worse, they won’t be getting as much sleep as they would get, and thus that impacts on their mental health.”

“There was one guy I knew, he would walk all night, and then sleep in the day when he could. It is that fear factor, of violence especially.”

The mechanisms that underpin how homeless people are treated are almost exactly the same as other things like race. I know it’s an extreme thing, but I’ve known people who have been beaten to death in [CITY]. It’s an extreme thing. Racism is a thing and things are moving with it, and I think the law is a part of that. Changes in the law is part of society’s views changing on a theme.

If we have an individual that’s homeless that attacks another individual that’s homeless, there’d need to be significant evidence to convict somebody on that hate crime, rather than just because this person is homeless it’s a hate crime.

“It will make people feel safer to know that the law is on their side.”

“I’d feel like the law is on my side. Rather than day in, day out, feeling criminalised due to me drug use, due to sleeping in doorways, due to this and that.”

Responses from law enforcement agencies

There is no consensus between chief officers on this question so we would remain neutral. We do not know of any force that records homelessness hate crime. It would be helpful to include any data on the number of crimes or research on such victims. No force had local data although some would be open to including such reported crimes in an open ‘Other’ category that they include. We would recognise that homeless people do suffer hostility but are very unlikely to turn to authorities when they do.

APCC members who got in touch with us with regard to this Review believe that public agencies should focus on the pre-existing vulnerabilities that cause individuals to become homeless, with a view to enabling them to escape homelessness. It may therefore not be helpful for individuals to be protected in law specifically as people experiencing homelessness. It has been suggested to us by one of our members that where a defendant has been found to have targeted an individual due to a specific vulnerability, this could be reflected by flexibility in sentencing.

Arguments in favour of recognition offered by organisations and professionals

The consultation paper raises concerns about re-criminalising homeless people who may commit crimes against other homeless people due to the extension of the hate crime regime. However, it appears unlikely that a court would apply a hate crime sentencing uplift relating to the homelessness characteristic if both the victim and perpetrator are homeless.

we note concerns about double counting, but sentencers are confident in ensuring factors are not double counted in respect of aggravating a sentence.

Arguments in favour of recognition offered by personal responses

7.179 Those who expanded on the reasons for their support tended to focus on:

“Homeless people, especially when asleep, are particularly vulnerable and so should be protected. The law would then show respect and inclusion to such vulnerable people.”

“Yes, as, like sex workers, they are widely marginalised and devalued. Rough sleepers in particular face a risk of exposure to crime that the rest of us don't face. Anyone working with the homeless will be able to tell stories of rough sleepers being attacked by someone looking for a fight who believed that they could attack this person without consequence because they were sleeping rough. All attacks motivated by the victim being homeless makes the wider homeless community feel less safe. At the very least, rough sleepers, the most vulnerable homeless people, should be protected by the act.”

“Yes, 100%. Having slept rough a few times in my late teens and early twenties, I have been very afraid for my life. One time, a group of adults in their late twenties tried to set me alight while I was sleeping. I was woken by their laughter. It is my firm belief that they saw me as less than human - and that is very much what hate crime laws are designed to protect against. From the testimonies of other homeless people which can be found online and on YouTube, it's a common strand that they feel dehumanised, and they are at extreme risk. I mention at the start that I fall within multiple protected groups. My few nights on the streets were more vulnerable than my membership of those groups ever made me.”

“People experiencing homelessness are regularly victims of violent crime due to their homelessness and the recognition of the harm these crimes do is negligent given that people who are homeless are often invisible within mainstream society. Including people experiencing homelessness would provide further protection to people who are often desperate and experiencing trauma, mental health and addiction problems and might otherwise receive no protection or recognition in law. People who are homeless have a right to life free from violence and abuse, but in town centres on weekend evenings that right disappears.”

“I absolutely support 'people experiencing homelessness' to be recognised as a hate crime category. This is one of the most vulnerable groups in society and people are frequently stigmatised and targeted. Working with various police forces, I have encountered frequent problems with violence against and exploitation of people who are rough sleeping. One incident which emphasised the need for 'hate crime' to be considered was when a group of university students drank champagne in front of a person who was rough sleeping and poured part of the drink on to him and his bedding. Better protection is urgently needed for this group. It could also be an important tool against those organised criminals who exploit people experiencing homelessness in order to sell drugs.”

Arguments against recognition offered by organisations and professionals

7.180 The two key reasons provided against the recognition of homelessness by organisational stakeholders were:

7.181 For example, in relation to identity, Professor Mark Walters stated:

As with other characteristics outlined in the paper, I am uncertain that homelessness is a group characteristic that is central to someone's identity.

7.182 Walters linked this to his wider concern that hate crime recognition was not necessarily the correct policy response for this group:

Homeless people are one of the most vulnerable groups in society to experience violence and abuse. Abuse against homeless people is particularly egregious conduct. The government must do much more to protect homeless people from violence, and to reduce the number of individuals who sleep on our streets. I do not believe that inclusion of homelessness in hate crime legislation will achieve this.

7.183 Dr Abenaa Owusu-Bempah echoed this concern:

I do not have a strong view on whether homelessness should be recognised as a hate crime category. However, the fact that homelessness is situational, along with concerns that including homelessness could affirm its position as a permanent feature of society, weigh against inclusion.

Arguments against recognition offered by individuals

7.184 Many personal responses also emphasised the need to tackle the root causes of homelessness:

“Rather than looking for more laws, something should be done about finding them homes. Nobody should be homeless in this country!”

“Homelessness is a social situation which should be addressed by politics. Mental health services, social services, child protection etc are the ways to solve this problem.”

“No. They should not be included as a category. Housing policies and reform is the way to deal with homelessness in the UK. This type of proposal risks becoming a distraction whereby homelessness is accepted as a fixed status in the UK.”

7.185 Another response raised the prospect of homeless people themselves being drawn into criminalisation:

“I'm concerned this could be used against homeless people who commit crimes against other homeless people.”

7.186 The wider criminal context (whereby rough sleeping is criminalised) was also raised:

“Homeless populations and the poor more generally experience crime and harm by virtue of their occupation of public space. I think we should eliminate housing discrimination. Here again, expanding who is included under hate crimes may make the category ineffectual. More research is needed among homeless people to capture their views on this. Will such legislation prevent harassment by police and the public? How will this interact with fines and other enforcement that displace homeless people from 'commercial' public spaces?”

7.187 There were three negative responses from people who had personal experience of homelessness. One elaborated their view as follows:

“No. I have been homeless and there is nothing to quantify homeless people as a group as even this shared 'characteristic' is hotly debated even among rough sleepers.”

7.188 Several responses also rejected the existence and expansion of hate crime laws in a general sense and raised freedom of speech concerns.

Conclusion following consultation

7.189 As we have noted, recognition of “homelessness” in hate crime laws enjoyed the greatest support amongst the groups and characteristics under consideration in this chapter.

7.200 In this regard and recognising the current need to address the disproportionate violence and abuse experienced by homeless people, one option that we believe should be seriously considered by the police is the implementation of police recording of hate crime directed at homeless persons. As with the “Merseyside approach” discussed earlier at paragraphs 7.23 to 7.25, this would optimally be accompanied by specific training for police in relation to homeless victims of hate crime, and enhanced community outreach. As we have emphasised, this would ultimately be a matter for the College of Policing and individual police forces to consider further in line with their broader responsibilities for crime prevention and community safety.

PHILOSOPHICAL BELIEFS

7.201 “Belief”, referred to here as “philosophical belief”, and also sometimes described as “non-religious belief” is the only group or characteristic discussed in this chapter that is already protected under civil equality law.

7.202 “Religion or belief” is a protected characteristic under the Equality Act 2010 and belief is defined as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”. 633The explanatory note to the 2010 Act further defines “philosophical belief”. It states that philosophical beliefs fall within the broader definition of Article 9 of the European Convention on Human Rights (“ECHR”), 634which protects “freedom of thought, conscience and religion” as follows:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

7.203 The explanatory notes to the Equality Act 2010 also expressly exclude “any cult involved in illegal activities” and also support of a football team.635

7.204 The employment law case of Grainger v Nicholson636 established a test for identifying a philosophical belief protected by the Equality Act 2010. It requires:

7.205 Grainger and subsequent cases have further defined “philosophical belief” for the purposes of the Equality Act 2010. The following categories have been recognised as protected philosophical beliefs:

Political beliefs

7.206 The Employment Appeal Tribunal (“EAT”) in Grainger provided guidance on whether political beliefs could be protected under philosophical beliefs. The EAT stated that membership of a political party or a political opinion does not itself amount to a philosophical belief. However, a belief in a “political philosophy or doctrine” may qualify where it satisfies the Grainger test. Examples of political philosophy provided were “Socialism, Marxism or free-market capitalism.”642

7.207 The Employment Tribunal (“ET”) and EAT have found that political beliefs in democratic socialism,643 Scottish independence, 644republicanism and antimonarchism, 645were protected under the Equality Act 2010. In contrast, political, or quasi-political beliefs not protected have included: a belief in wearing poppies on Remembrance Sunday; 646objection to same sex couples’ adoption of children; 647and a belief that public service is an improper waste of money.648

falling within any of those sections in their capacity as such.654

7.212 In October 2021 MP Sir David Amess was fatally stabbed while conducting a constituency surgery in Leigh-on-Sea, Essex.655 This followed the fatal shooting and stabbing of Jo Cox MP in 2016, which occurred outside a library in Birstall, West Yorkshire, where she was about to hold a constituency surgery.656 These incidents, together with the near fatal stabbing of Stephen Timms MP657 have heightened concerns about MP safety. The Home Office has asked all police forces to review MP safety measures.658

Demonstrable need

7.213 In our consultation paper we began by considering evidence of crimes targeted towards individuals on the basis of their philosophical beliefs. We noted that there is some evidence of crimes targeted towards individuals on this basis, and cited anecdotal evidence provided by British Naturism and Humanists UK. However, we acknowledged that this evidence is often sporadic and largely anecdotal, and that the frequency of criminal targeting is likely to vary considerably between different philosophical groups.659

7.214 We observed that a significant amount of abuse, particularly online, is directed towards people’s political beliefs. Increasing political divisiveness in recent years has led to the bullying and harassment of politicians, and we cited the large-scale abuse received mainly by women in politics, including Jess Phillips MP and Diane Abbott MP, as evidence of this. 660As noted at paragraph 7.212, there have also been some instances of serious violence and murder of MPs, which have shocked the country .

Are these crimes linked to prejudice and hostility towards membership of a philosophical belief group?

7.215 We then considered whether the criminal targeting is linked to hostility or prejudice towards the victim’s philosophical beliefs and concluded that there is some evidence of this.

The prevalence of crimes based on hostility or prejudice towards philosophical beliefs

7.216 We observed that the assessment of prevalence of criminal targeting of philosophical beliefs will vary between groups. We also noted that it is difficult to assess prevalence with accuracy because of the lack of recording of hate crime toward these groups.

Additional harm

7.217 In relation to the additional harm criterion, we considered evidence that criminal targeting based on hostility or prejudice towards philosophical beliefs causes additional harm to the victim, members of the targeted group, and society more widely.661

Additional harm to the primary victim

7.218 We noted that it can be argued that criminal targeting on the basis of one’s philosophical belief carries additional harm because it is a core aspect of one’s identity.

7.219 We observed that comparisons can be drawn between religion and philosophical beliefs in this regard. Both religious and philosophical beliefs can have a spiritual and/or moral component. 662For example, we cited Soifer, who has argued that ethical veganism is “a belief, a moral code, a guiding principle, and to some, a religion”.663

7.220 We also considered arguments about whether philosophical beliefs are as difficult to change as faith. For example, we cited Pinto, who has highlighted the unique, intrinsic link between religion and cultural identity and practice, such as in Judaism and Islam, and therefore the added difficulty with making the decision to leave a religion.664

7.221 We considered that the impact of philosophical beliefs on various aspects of a person’s life provides further evidence of their centrality to identity. We acknowledged that this reasoning may also extend to political beliefs, and cited Brown, who has argued that people are socialised into political beliefs, which then form a central part of their identity.665

Secondary harm to others who share the characteristic
Harm to society more widely

Suitability

Compatibility with the rights of others

only if the belief involves a very grave violation of the rights of others, tantamount to the destruction of those rights, would it be one that was not worthy of respect in a democratic society.667

Potentially harmful consequences
Workable in practice

Consultation responses

Consultation Question 20: We invite consultees’ views on whether “philosophical beliefs” should be recognised as a hate crime category.

Summary Consultation Question 4: Should any of the following groups be specifically protected by hate crime laws?:

o sex workers

o homeless people

o alternative subcultures (for example, goths, punks, metallers, emos)

o philosophical beliefs (for example, humanism)

7.234 A significant majority of personal responses, and a majority of responses overall, were against the recognition of philosophical beliefs as a hate crime category. Many expressed a fundamental objection to hate crime laws. Examples of these responses included:

that a person's 'philosophical beliefs' have any linkage with crimes against them. All that means is that humanists can prosecute Christians when they evangelise them. This is what the proposal is meant to stop.”

discussing philosophy? Show me one person who hates humanists!”

and political beliefs, should be subject to criticism and robust debate. Only if such debate becomes intimidatory or threatening should the law get involved and existing legislation is sufficient to deal with this.”

7.235 In addition to these clear overall rejections of the proposal, some consultees engaged more directly with the question of how philosophical belief accords with our selection criteria.

Demonstrable need

7.236 Protection Approaches noted that “people with certain philosophical beliefs face proportionately higher levels of discrimination, marginalisation, exclusion, and hatebased attacks”, and that “people with certain philosophical [beliefs] are likely to experience disproportionate levels of prejudice and discrimination when seeking recourse after identity-based attacks by those tasked with implementing hate crime laws, namely but not only the police, CPS, and the wider justice system”.

7.237 The Hate Crime Unit said that there is empirical evidence that indicates a need to protect philosophical beliefs under hate crime laws. They pointed to Pew Research which has “identified a rise in the harassment of religiously unaffiliated people in recent years.” They also highlighted research by The Times which they said has suggested that there have been “172 crimes associated with vegans in the past five years.”668

7.238 British Naturism said that: “Persecution of Naturists has grown over the last few years with larger Naturist gatherings now requiring a significant police presence, including Police Liaison Officers, to deal with attempts by hate groups to cause criminal damage and assault Naturists.”

7.239 However, some consultees were of the view that there is a lack of evidence of hostility targeted at people who hold philosophical beliefs. For example, Professor Kathleen Stock stated that she is “unaware of any convincing evidence that there is a significant pattern of hostility against such people; the exception seems to be those already covered under religious belief.”

Additional harm

7.240 A few consultees noted the comparisons that can be drawn between religion and philosophical beliefs, which we discussed under the “additional harm” criterion at paragraphs 7.218 to 7.221.

7.241 The Naturist Action Group focused on the fact that:

a philosophical belief is not far removed in practical application from a religious belief in that it regulates behaviour, and in so far as that behaviour is legal and not harmful to others it should be allowed and protected.

Naturism is a weighty belief that for many Naturists has a substantial influence over their behaviour, with individuals choosing to live their lives according to the Naturist philosophy to the extent that it defines their identity.

7.249 Humanists UK argued that under “section 3 of the HRA 1998 it is already the case that the existing law has to be read in a way as to protect non-religious worldviews that are analogous to religions, for example humanism.” Therefore, hate crime laws should be drafted in a way that explicitly includes such non-religious worldviews.

7.250 However, the Deputy Police and Crime Commissioner for Nottinghamshire was not supportive of the inclusion because they do not consider “philosophical beliefs to have the same cultural and societal nature as say religion.”

7.251 A personal response also shared this concern:

I think it should not. Stick to religion and the absence of religion, ie agnosticism and atheism.

I have sympathy to non- formal religious belief systems and philosophical beliefs but there are so many and constructing a definition that encompasses them would be unworkable if it were attempted.

7.252 Another personal response also suggested that religion was more akin to the existing, more immutable characteristics, whereas philosophical belief could be considered different:

People generally cannot help their race/sex/sexual orientation/religion, and in going peaceably about their daily lives, cannot help these "different" characteristics being obvious to others. Philosophical/political beliefs are a bit different in that other people only know you have them if you speak out about them, and if you have the courage to do that, do you need protection?

Concerns surrounding breadth of recognition

7.253 Index on Censorship noted the range of examples we cited in the consultation paper, such as veganism and naturism, and concluded that “this breadth leads us to be concerned about whether adding it to the list of protected characteristics and, crucially, enforcing it would be practical.”

7.254 The National Police Chiefs Council stated that “most chief officers felt that such a provision was not appropriate and some claimed it would be difficult to draw effective parameters to the provision.”

7.255 Legal Feminist described the category as too uncertain for hate crime laws, concluding that “broadening hate crime to such an extent would be undesirable.”

7.256 Similarly, Galop did not think philosophical beliefs was a suitable category for inclusion “due to its breadth, uncertainty over which groups would be included and lack of compelling evidence of hostility or prejudice toward groups within it.”

7.257 CARE also rejected the addition of “philosophical beliefs” as a protected characteristic because its “breadth risks the over-criminalisation of speech and introduces a lack of legal certainty as it is likely that the effective meaning of philosophical belief will continue to expand.”

We understand that there is a desire to prevent this legislation becoming amorphous and offering legal protection to a wide range of beliefs, such as has been seen in some UK employment tribunal decisions based on the Equality Act 2010 (where for example opposition to foxhunting and support for public service broadcasting have come under protection), as this could undermine the symbolic and normative power of hate crime legislation. However, inclusion of just non-religious worldviews that are analogous to religions would be limited almost exclusively to humanism. As far as we know, the only other examples of analogous beliefs found in case law are atheism and agnosticism - both of which are only narrow views on the existence of a god or gods, and as such are already unambiguously covered through the provision related to a lack of religious belief.

We are concerned about the risk this would create of protection being provided to groups with potentially very harmful views and from a practical perspective, this may be too broad to implement and communicate.

it would be important for courts to be given clear guidance so they can use their discretion appropriately to ensure harmful philosophical beliefs are not protected.

Freedom of speech concerns

in a democratic society robust debate about ideas and beliefs is essential. A stirring up hatred offence on this ground would jeopardise this free exchange of views and risk infringing expression rights, as it has done in relation to religious discussion already.

adopting this new category would also introduce uncertainty in the law. The public would not be easily able to discern what viewpoints amount to protected beliefs and what do not. As with other hate crime laws, it would lead to a hierarchy where some beliefs are favoured with protection and others are not. It would further politicise the law, the police and the judiciary to require them to adjudicate on whose philosophical beliefs deserve protection.

runs the risk of devaluing the symbolism of hate crimes. Hate crime laws serve a critical symbolic function in combatting and outing bigotry and a significant part of what makes hate crime laws effective is the visceral, societal reaction against those who break them. By extending the same protection to characteristics such as veganism and nudism, the law runs the risk of undermining the historical gravity of hate crime and, crucially, diminishing the reaction against it. This is particularly true of a political climate in which a significant number of the population may dismiss and deride such an expansion of protections as evidence of 'political correctness' and 'cancel culture'. This could have serious, negative effects on those members of society that are currently protected by the hate crime laws.

Conclusion following consultation

Chapter 8: Aggravated offences and enhanced sentencing

INTRODUCTION

... the current range of specific offences and aggravating factors in sentencing, and [to] mak[e] 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.

CURRENT LAW

Aggravated offences

Enhanced sentencing

This is subject to subsection (3).

membership of that group,

Key differences between aggravated offences and enhanced sentencing

the Police National Computer and therefore appears on the offender’s criminal record. This includes details of the characteristic(s) to which the court’s hostility finding relates.

RETENTION OF THE DUAL MODEL

Consultation paper proposals

with at the sentencing stage;

Consultation responses

Consultation question 24: We provisionally propose that the model of aggravated offences with higher maximum penalties be retained as part of future hate crime laws. Do you agree?

Summary consultation question 7: We provisionally propose that both specified aggravated offences and statutory enhanced sentencing should be retained in the law of England and Wales. Do you agree?

Consultation question 35: We invite consultees’ views on whether they consider the Sussex Report’s proposed “hybrid” approach to hate crime laws to be a preferable approach to the model that we have proposed.

Consultation question 36: We provisionally propose that the enhanced sentencing model remain a component of hate crime laws, as a complement to an expanded role for aggravated offences. Do consultees agree?

they grant legal privileges to one group and not to another.”

Crime laws and identity politics.”

Hate crime laws should be scrapped, not expanded. Anyone arguing in favour of these laws wants to create a less free, less liberal society, which goes against the culture and history of this country.”

enforcement and freedom of speech and expression is required in a free society.”

The existence of specific aggravated offences with higher maximum penalties sends out a powerful message to victimised communities and to wider society that hate crime offences are of a higher level of seriousness and will be treated more severely by the criminal justice system. A conviction for a specific aggravated offence is also a highly effective way of labelling an offender as a hate crime perpetrator, with corresponding benefits in respect of deterrence and monitoring. We therefore agree that the model of aggravated offences with higher maximum penalties should be retained.

We note the benefits to the current model of aggravated offences, and agree that the higher maximum penalties can have a positive impact on perceptions of how seriously these offences are treated. We also note the importance of moving certain summary only offences to either-way offences, which allows elevated sentences.

Although we agree with some of the points noted in the consultation paper which illustrate moving a case from magistrates' court to Crown Court can have negative impacts, especially in relation to delays, we would note that if magistrates' court were to have increased jurisdiction, so they could deal with cases that engage a custodial sentence of up to 12 months, this would help resolve this problem.

The consultation paper puts forward a strong case to retain the model of aggravated offences with higher maximum penalties, while acknowledging in doing so it also retains the complexity of a dual system of hate crime laws, comprising both aggravated offences and enhanced sentencing. It is significant that consultees saw this mechanism as a core component of hate crime laws, and telling that stakeholder groups not already protected by aggravated offences wanted these mechanisms to cover their characteristics.

The APCC believes that the Sussex Report’s proposed “hybrid” approach could be considered in further detail. Provisionally, we would support a move towards providing greater simplicity and coherence in the law through having one single mechanism with regard to aggravated offences.

However, we would be concerned about the requirement that the aggravation be proven before a jury in all cases; in particular, the impact that this could have on victims, and delays that this could cause in the Crown Court.

There would only need to be one new offence - “section 1 of the Hate Crime Act 2021”. This could be bolted on to any base offence for which it was appropriate. The maximum for this offence could be set at, say, 4 years’ imprisonment for indictable base offences and 2 years’ imprisonment for summary-only base offences, which would broadly mirror the current level of aggravation. Any concern that the uplift resulting from a conviction for the aggravated offence could disproportionately exceed the sentence for the base offence, could be addressed in the legislation or by Sentencing Guidelines. There would be an expectation that upon conviction there would be consecutive sentences - one for the base offence and the second for the bolt-on. Fair labelling would be ensured. It would result in criminal records unambiguously reflecting the aggravation of the targeting of a protected characteristic. And the jury would not be diverted from the task of focusing on the base offence, for which they would first have to convict before considering the aggravated form. No-one could be convicted of the aggravated form without being convicted of the base offence - it would be a parasitic offence. So it cannot properly be criticised on the basis that it creates a new category of “thought crime” where there is no underlying criminality.

The dual system of aggravated offences for some crimes and enhanced sentencing provisions for others is overly complex and causes unnecessary confusion for both the public and legal professionals. As recognised at para 9.17 of the consultation paper (and elaborated on from para 9.28), the “two separate, at times overlapping, mechanisms for increasing the applicable sentence for hate crimes” is a main criticism of the current law.

The "hybrid" approach proposed in Walters, Wiedlitzka, Owusu-Bempah and Goodall, “Hate Crime and Legal Process: Options for Law Reform”, is, therefore, the preferred approach. Abolishing the enhanced sentencing provisions and allowing for any offence to be prosecuted as an aggravated offence ensures that all offences can be sentenced on the basis of being aggravated, while eliminating much of the complexity and uncertainty within the current law. As long as each offence does not come with a higher maximum sentence (and subject to specific concerns that might arise from the inclusion of new characteristics - eg gender), this is a workable solution which does not reduce or remove existing protections.

It is rare that increased maximum sentences are required for aggravated offences. Indeed, there are several reasons why increased maximum sentences are undesirable, as identified in the consultation paper. In particular, “harsher” sentences do not adequately address the root causes of hate crime and are often not desired by victims of hate crime. Also, absent higher maximum sentences, aggravated offences are still capable of expressing denunciation and messages of support to targeted communities, while the “hate crime” label further stigmatises offenders, with the offence being recorded on the offender’s record as an aggravated offence. Thus, in place of higher maximum sentences for every criminal offence, it would be sufficient that the offender has been convicted of an “aggravated offence”, and the sentencing judge must treat the hostility element of the offence as a specific and important aggravating factor.

The consultation paper expresses concern about “rolling back the additional maximum penalties that currently apply in respect of various forms of racially and religiously aggravated hate crime” and that “this is likely to send the wrong message to these and other communities, and undermine the overall deterrent effect of hate crime laws”. Yet, the consultation paper acknowledges the lack of evidence as to the deterrent effect of hate crime laws, and that many victims do not see the value in harsh sentences. Moreover, where the aggravated element constitutes an aspect of the offence, it is more likely that the offence will be flagged as a hate crime and evidence of hostility will be gathered at an early stage. The hate crime “label” may be applied more often, thus expressing a stronger commitment to protecting targeted communities.

For the reasons stated in the consultation paper, and elaborated on in Walters, Wiedlitzka, Owusu-Bempah and Goodall, “Hate Crime and Legal Process: Options for Law Reform” (University of Sussex, 2017), I am in favour of the “hybrid” approach.

It should be noted that, while some jurors may too readily dismiss the prosecution case in respect of racial or religious hostility, empirical research revealed concern that some judges too readily accept the prosecution version of events. Walters’ proposed “refined demonstration of hostility test” (set out in response to question 22) could help juries to understand that the purpose of the “demonstration of hostility” test is not to find guilt of racist or anti-religious beliefs (ie, beliefs that underpin motive), but to find criminal fault for an expression of hostility that is connected to a basic offence.

As argued throughout this response, higher maximum sentences are not necessary for punitive or symbolic reasons. I share concerns that removing the current increased sentences would not be received well by some. A compromise could be to retain the higher maximum for the offences currently included in the Crime and Disorder Act 1998, so as not to send the wrong message, but not to introduce new maximum sentences for other offences. Alternatively, it could be communicated clearly to the public that increased maximum sentences have proven unnecessary (and, at least to some extent, undesirable), and that sentences will continue to reflect the aggravated element in the usual way.

Conclusions following consultation responses on the “dual approach”

In England and Wales the matter is complicated by the fact they that have been operating both models side-by-side for different purposes and for different protected characteristics for many years. This historical context makes it difficult or more difficult to consider abandoning one model in favour of the other.683

Recommendation 11.

PARITY OF CHARACTERISTIC PROTECTION FOR AGGRAVATED OFFENCES

The public should be able to have confidence that hate crime will be taken equally seriously and investigated and prosecuted equally robustly, whichever of the five characteristics is the object of hostility. It is undesirable for the current law to give the impression of a “hierarchy” of victims ...

Unless there is some good reason (as to the nature of the offending, its seriousness, its prevalence or otherwise) for the law to provide the further protection that may derive from the “aggravated” label, in relation to racial and religious hostility only, it is unacceptable for the same system not to apply to all five characteristics.

Consultation

Consultation Question 25

We provisionally propose that the characteristics protected by aggravated offences should be extended to include: sexual orientation; transgender, non-binary and intersex identity; disability, and any other characteristics that are added to hate crime laws (in addition to the current characteristics of race and religion).

Do consultees agree?

Summary Consultation Question 8

We provisionally propose that aggravated offences should apply to all five of the current characteristics equally, and any further characteristics that are added.

Do you agree?

Yes. There would not appear to be any good reason to withhold parity of protection across the range of protected characteristics.

Yes, we agree. We firmly believe that all characteristics protected by aggravated offences should be extended to include sexual orientation, transgender, non-binary and intersex identity, disability, and any other characteristics that are added to hate crime laws. This would make the law more clear, accessible and fair for people with all protected characteristics.

[T]his has been a long-standing criticism by victims, that there is a clear lack of parity across the protected characteristics within existing hate crime laws. It makes a lot of sense that aggravated offences should apply to all current characteristics equally, and to any further characteristics that are added in the future. This would prevent the victims of hate crimes receiving a different response / outcome due to the characteristic that was recorded.

this even more would be irresponsible and reckless.”

Conclusion following consultation

Recommendation 12.

CHOICE OF AGGRAVATED OFFENCES

proportion of the offence;

across the criminal law;

offence requiring proof before a jury may prove particularly burdensome.

o grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 (“OAPA 1861”); and

o arson with intent to endanger life or reckless as to whether life is endangered contrary to sections 1(2) and 1(3) of the Criminal Damage Act 1971.

Consultation responses

Creation of aggravated communications offences

We provisionally propose that aggravated versions of communications offences with an increased maximum penalty be introduced in reformed hate crime laws.

Do consultees agree?

We are unhappy about this. If a communications offence is particularly serious, it should in our view be prosecuted as a stirring-up offence

the driving factor.”

differ from our own. Increasing maximum penalties speak of hatred and inability to accept contrary views. Hatred may be in the heart of the beholder, while far from the intention of the communicator.”

The criteria set out in question 26 above appear to be met. In addition, we take the view that fair labelling further justifies communication offences to be included as ... aggravated offences.

As society has moved online, online antisemitism has increased. CST records online antisemitic incidents that have been actively reported to CST, and where the offender and victim (or both) are based in the UK. Within these limited parameters, which pick up a fraction of antisemitic posts and content online, antisemitic incidents recorded by CST have steadily increased to a significant proportion of all antisemitic incidents recorded by CST in the UK.

We tentatively agree with proposals that aggravated versions of communications offences with an increased maximum penalty be introduced in reformed hate crime laws. The EHRC notes the concerns raised by UN [Convention on the Elimination of Racial Discrimination] in relation to online hate speech and its concluding observation that the UK Government should “adopt comprehensive measures to combat racist hate speech and xenophobic political discourse, including on the Internet, particularly with regard to the application of appropriate sanctions”.

In light of that recommendation, but also taking into consideration the importance of safeguarding freedom of expression in private as well as public discourse, we recommend any changes are informed by the outcome of the Law Commission’s current review of the provisions of section 127 of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988 as these pre-date, in great part the advent of social media as a mainstream medium for general communication.

Any consideration of the need for aggravated versions of further offences should be informed by the criteria proposed in the consultation paper.

Conclusions following consultation

Recommendation 13.

Creation of aggravated versions of other offences
Section 18 of the OAPA 1861 and arson with intent or reckless as to whether life is endangered contrary to sections 1(2) and 1(3) of the Criminal Damage Act 1971

8.100 Consultation Question 28 was as follows:

We provisionally propose that aggravated versions of the following offences should be created, notwithstanding that they have life maximum penalties:

o Grievous bodily harm with intent contrary to section 18 of the OAPA 1861; and

o Arson with intent or reckless as to whether life is endangered contrary to sections 1(2) and 1(3) of the Criminal Damage Act 1971

We do not propose that aggravated versions be created in respect of any other offences with a life maximum penalty.

Do consultees agree?

8.101 Following helpful representations from legal and prosecution bodies, we have reconsidered our provisional proposal to create aggravated versions of the offences of causing grievous bodily harm with intent contrary to section 18 of the OAPA 1861 and arson with intent to endanger life or reckless as to whether life is endangered contrary to sections 1(2) and 1(3) of the Criminal Damage Act 1971.

8.102 The CPS responded:

No. The essence of an aggravated offence is that it has a higher maximum penalty than that for the “basic” offence. Section18 GBH with intent and arson endangering life already carry a maximum sentence of life imprisonment and therefore the element of hate crime aggravation can only be reflected within enhanced sentencing. This proposal would create a third “hybrid” hate crime offence: ie a specific aggravated offence with enhanced sentencing requirements. This would create unnecessary and undesirable complexity and make the offences harder for the prosecution to prove.

8.103 Mishcon de Reya also argued that it would not benefit the state of the law:

The proposal will not necessarily improve the position in terms of jury directions. For example, a single count of the proposed racially aggravated section 18 offence could lead to a complex range of alternatives, including (but not limited to):

o the indicted offence;

o section 18, with intent, but without the hate crime element;

o an aggravated section 20 offence; or

o a simple section 20 offence.

Other violent offences

8.104 Consultation Question 29 was as follows:

We provisionally propose that aggravated versions of the following offences against the person should not be introduced in reformed hate crime laws:

o Maliciously administering poison so as to endanger life or inflict grievous bodily harm (section 23 OAPA 1861);

o Maliciously administering poison with intent to injure, aggrieve or annoy any other person (section 24 OAPA 1861);

o Threats to kill (section 16 OAPA 1861); and

o Threatening with an offensive weapon or article with a blade/point (section 1A Prevention of Crime Act 1953/ section 139AA(1) Criminal Justice Act 1988).

Do consultees agree?

If specific aggravated offences are to be retained within a new hate crime legal framework, we see merit in threats to kill (section 16 OAPA 1861) and threatening with an offensive weapon/bladed article being included in that list. Both of these offences may be encountered in a hate crime context and it would be logical and consistent for them to exist in aggravated form (with higher maximum penalties) alongside other aggravated public order offences and offences of violence. Section 23 and section 24 OAPA 1861 are so rarely used in a hate crime (or any other context) that we see no merit (apart from consistency) in including them in the list of aggravated offences.

... in respect of (d) (threatening with an offensive weapon/bladed article) the relatively low maximum, combined with the circumstances in which this offence is likely to be committed, and the relatively straightforward mental element, all suggest to us that the offence might properly be included in the list of aggravated offences.

be created.”

fewer hate crime laws, not more.”

should be, is there a threat of violence? If so, then this is covered by existing laws.”

Property or fraud offences

8.111 Consultation Question 30 was as follows:

We invite consultees’ views on whether any property or fraud offences should be included within the specified aggravated offences.

We also recommend that the range of aggravated offences that can be charged in relation to a crime against a disabled person include offences that are particularly prevalent. In particular, property and fraud offences and the criminalisation of coercive behaviour or exploitation involving a person who has a learning disability and/or autism. This may enable a better response to the specific issue of so-called ‘mate crime’, 695which is one of the most prevalent and sinister modes in which people who have a learning disability and autism are targeted for crime and abuse.

8.114 Stand Against Racism & Inequality (SARI) echoed this view:

Yes - this is Mate Crime very often and needs proper recognition in hate crime legislation.

8.115 Dr Seamus Taylor, an academic expert in disability hate crime commented:

I consider that some property and fraud offences should be included within the specified aggravated offences as they are disproportionately represented in hate crimes which target disabled people

8.116 The CPS indicated that their view was that addition would achieve little if it was not accompanied by reform to the legal test (an issue we consider in Chapter 9):

If the existing two limb ‘demonstration of hostility/motivated by hostility’ definition of hate crime offences is to be retained within a new legal framework, then only rarely will property offences involving dishonesty or fraud fall within that definition (although they may be linked to other offences which clearly do fall within the definition). However, if the definition is amended or broadened so as to encompass, for example, the targeting of disabled people (or elderly people, if age is added as a protected characteristic) then we consider that such offending should be included in the list of specific aggravated offences.

8.117 A significant proportion of those who responded negatively simply stated “no” without further explanation.

8.118 Many individuals also repeated their general opposition to hate crime laws in their answer, for example:

Absolutely not. What would possess you to imply, as this would, that you consider some people's right to property to be more important, more sacrosanct, than others?

8.119 A number of responses also indicated that they considered property offences were adequately dealt with within existing laws, without necessarily opposing hate crime laws more generally:

No, hate crimes are concerning individuals rather than their assets

8.120 Some indicated their view that hate or hostility are typically not present in these contexts:

in a “hateful” way as regards their victims. Victims are most likely to be targeted based on either their vulnerability, gullibility, stupidity or all three.”

advantage of vulnerability this does not constitute hate.”

8.121 Given a lack of clear support for inclusion, we do not consider that a sufficient case has been made for the creation of aggravated versions of fraud or property offences. In particular, while we accept that there are some cases of fraud and property offences that are motivated by hostility - particularly in the context of disability hate crime - the overall numbers of these offences are not sufficiently great so as to justify the creation of new aggravated offences. Where these do occur, existing enhanced sentencing provisions can be applied in recognition of the additional harm caused.

Sexual offences

8.122 Finally, we proposed that sexual offences were not appropriate candidates for aggravated offences given the already challenging nature of these prosecutions.

8.123 Consultation Question 31 was as follows:

We provisionally propose that aggravated versions of sexual offences should not be introduced (and hate crimes in these contexts should continue to be dealt with through enhanced sentencing).

Do consultees agree?

8.124 A number of stakeholders agreed with this suggestion.

8.125 The Association for Police and Crime Commissioners stated:

We agree with this point, and particularly that made at paragraph 16.104(4) [of the consultation paper]: requiring the prosecution to prove an additional aggravated element is likely to make successful prosecutions harder, when sexual offences are already amongst the most difficult offences to prosecute.

Requiring an extra element for the prosecution to prove could prolong the court experience and create even more distress for victims.

8.126 The CPS similarly agreed that already complicated prosecutions may become even more difficult:

Yes. We consider that it would be undesirable to add extra elements to prove in respect of sexual offences. We therefore agree that where a sexual offence falls within the definition of hate crime it would be better dealt with by means of enhanced sentencing.

8.127 The National Police Chiefs’ Council echoed this view:

We would agree recognising that such offences could be dealt with through enhanced sentencing.

Sexual offences are directed principally against people of the female sex. The prosecution rate is already very low for these offences while the conviction rate is abysmal. This shows the disregard with which women (females) are already treated by the justice system. This should be dealt with as a matter of urgency. Whether this should be dealt with through the hate crime legislation is not clear to us. There is little evidence that enhanced sentencing acts as a deterrent.

We see hate motivated sex offences - including rapes and this needs to have equal treatment by the criminal justice system. Hate motivated sexual offences such as rape or someone believing they have the right to sexually assault someone because of their protected characteristic is an extremely serious hate crime. We cannot understand why it cannot be made an aggravated offence.

recognise these crimes as being hate inspired and are treated leniently in court or are not prosecuted at all, hence rape prosecutions being miniscule compared with number of offences. Women don’t report due to victims being held responsible for perpetrators hatred and violence.”

8.132 The Magistrates Association did not agree that aggravated versions of sexual offences would make prosecution more difficult:

Although we note there is not clear evidence of prevalence, it is highly possible that sexual offences that are motivated by hostility to disabled and LGBT victims are not currently being recorded as hate crimes, which makes prevalence hard to prove. We acknowledge the challenges already faced in relation to prosecuting such offences, it is important to remember that the Crown Court can return an alternative verdict of guilty of the non-aggravated version of the offence. The additional point of concern about introducing a hierarchy of victims is pertinent, but it could be considered as relevant for all aggravated offences.

We therefore do not feel they are strong arguments against introducing aggravated versions of sexual offences when balanced with the need to protect victims targeted due to their protected characteristics.

8.133 Some personal responses supported any proposal that would create scope for sexual offences to be dealt with more severely:

aggravated level?”

8.134 While many of those in favour of aggravated versions of sexual offences believed this might result in sexual offences generally being taken more seriously, we are not convinced that this would necessarily follow. As For Women Scotland noted, this a distinct issue, for which hate crime laws are unlikely to prove the remedy. Given our concerns about the potential negative impact on sexual offence prosecution - which several key criminal justice stakeholders shared - we remain of the view that sexual offences are not appropriate candidates for aggravated offences.

Recommendation 14.

8.135 We recommend that no further aggravated versions of existing criminal offences should be created.

CHANGES TO MAXIMUM PENALTIES FOR AGGRAVATED OFFENCES

8.136 The table at paragraph 8.9 illustrates the increase in maximum sentences across the various aggravated offences. The intervals are consistent across the offences: 6-month maximums become 2 years, 5 year maximums become 7 years, and 10 year maximums become 14 years.

8.137 As we noted in the consultation paper,696 in the case of racially or religiously aggravated harassment, alarm or distress, 697the base offence (contrary to section 5 of the Public Order Act 1986) carries a maximum penalty of a £1,000 fine. The aggravated version carries a £2,500 penalty. While this is a significant jump in monetary terms, the CPS highlighted that there is a significant gap between this offence and the more serious public order offences under section 4 and 4A, the aggravated versions of which have maximum sentences of 2 years. In many cases, either a section 5 or section 4A (intentional harassment, alarm or distress) offence can be charged. Prosecutors have told us that there is lack of an appropriate “middle ground”, whereby the offending may warrant a penalty more serious than a fine, but a two-year maximum penalty, and the prospect of a Crown Court trial, is also disproportionate.

Consultation responses

8.138 In the consultation paper we asked the following general question in relation to maximum penalties:

Are the maximum sentences for the aggravated offences in the CDA 1998 appropriate?

8.139 There were only 480 responses to this question, which was low compared to many others.

The Antisemitism Policy Trust believes that the current maximum sentences for aggravated offences, namely racial and religious offences, are sufficient in terms of length of time for a custodial sentence or the maximum fine which can be given, as prescribed by law. However, the actual sentences handed down to offenders, on average for 2018, were weak. Although the uplifted sentences are marginally more substantial than those handed down for the basic offence, they arguably do not deter offenders.

Racially or religiously aggravated section 5 POA 1986 is a summary only offence and the maximum sentence is a fine of £2500. However, racially or religiously aggravated section 4/4A POA 1986 is an either-way offence and the maximum penalty is two years imprisonment. This wide gap in sentencing power causes difficulties for prosecutors in selecting the appropriate charge because there is a clear overlap between the most serious aggravated section 5 offences and the less serious section 4/4A offences. There are a significant number of cases where aggravated section 5 would not give the court adequate sentencing power, whilst charging aggravated section 4/4A would be disproportionate and might result in the defendant electing to have the case tried in the Crown Court. Also, the fact that aggravated section 5 is currently non-imprisonable causes difficulties when the defendant is sentenced to imprisonment for other offences. In these cases, the court cannot impose a consecutive or concurrent sentence for the aggravated section 5 offence and a fine would not be appropriate due to the imposition of an immediate custodial sentence. The result is that the court has no alternative but to impose “no separate penalty.” All of these difficulties could be resolved by making aggravated section 5 POA 1986 an imprisonable offence.

One chief officer felt that it was important to consider changes in relation to increase in the available sentence for aggravated section 5 of the Public Order Act 1986.

The view the fact that it is only punishable by a fine, sends an incredibly negative message to victims. We believe that the option to impose a custodial sentence should be left open to the Court.

Conclusion following consultation

HOSTILITY TOWARDS MORE THAN ONE CHARACTERISTIC

Consultation in relation to aggravated offences involving “one or more” protected characteristics

Consultation Question 32

We invite consultees’ views on whether a provision requiring satisfaction of the legal test in respect of “one or more” protected characteristics would be a workable and fair approach to facilitate recognition of intersectionality in the context of aggravated offences.

individual. Everybody should be treated with respect, and there should not be a points scoring exercise for who is most oppressed and therefore offences against should attract a harsher punishment.”

crimes or intersectionality.”

and hatred than anything. Rid legal discourse of all such regressive nonsense.”

Yes. For the reasons set out in the consultation paper we agree that this would be a workable and fair way of dealing with the complexities of charging/indicting intersectional hate crime.

We believe the proposed approach would be workable. As noted in the consultation paper, sentencers will have discretion to respond to the circumstances of the case to decide how the sentence should be increased, if there is hostility relating to more than one characteristic.

This is a sensible idea, e.g. with race and religion or race and disability. We are seeing quite a number of such cases and would welcome recognition that people can be target[ted] for more than one characteristic.

We support this. A significant percentage of all forms of hate crime are intersectional.

We agree as a matter of law that it is likely that the aggravated offences as currently drafted do not permit both characteristics to be included in one count/charge. ...

Opinion amongst those who have contributed to this response on behalf of the Bar Council is divided as to whether the determination of which protected characteristic had been proved should be made by the jury, by way of separate counts for each characteristic, or by the judge, by way of interpreting the verdict on a single “rolled up” count..

Where the aggravation can significantly impact upon the available maximum penalty, this is a decision that the accused is entitled to require be determined by a jury in the same way as he is entitled to require the jury to return a verdict on the underlying conduct. And written routes to verdict - which are nowadays very much the rule rather than the exception - help to allay any concern that indictments may become unwieldly if individual protected characteristics are required to be pleaded separately.

There is strong evidence to suggest that seeking to incorporate the notion of intersectionality into a new statutory aggravation model would create challenges in attempting to reflect more than one protected characteristic in prosecuting aggravated offences. For example, in England and Wales, if the prosecution has to deal with a case involving racial and religious hostility, this can create real difficulties.

The Law Commission provisionally suggests a novel approach to this by the inclusion of a provision allowing for the recognition of hostility based on “one or more characteristics”. Thus, the characteristics could be specified in the charge or count on the indictment, but conviction would only require the jury to be satisfied that at least one had been met on the evidence given by the prosecution.

I agree with the approach of the Law Commission in England and Wales on this important issue.700

Conclusion following consultation responses

The defendant’s right to a fair trial

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.

The rule against duplicity

More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

Fair labelling
Conclusion

8.194 At present, it is essentially unworkable to seek to charge circumstances of both racially and religiously aggravated hostility connected to the same criminal act, which is unsatisfactory.

8.195 For the reasons outlined at paragraph 8.177, we consider the proposal to be consistent with the defendant’s right to a fair trial, and the rules of criminal procedure. We also consider that the requirements of fair labelling can be satisfied through the sentencer making a determination as to the nature of the hostility which motivated the offence or was demonstrated by the defendant, once the fact of an aggravated offence has been determined by the jury. We therefore recommend that it should be possible for a conviction for an aggravated offence to be based on proof that the offence was motivated by or the defendant demonstrated hostility towards “one or more” protected characteristics.

Recommendation 15.

8.196 We recommend that a conviction for an aggravated offence should be possible where the prosecution proves that the offence was motivated by or the defendant demonstrated hostility towards “one or more” protected characteristics.

8.197 However, the court should make a clear determination as to the characteristics that have formed the basis for sentencing, and these should be specified on the Police National Computer.

SHOULD THERE BE A MORE FLEXIBLE APPROACH TO CHARACTERISTIC PROTECTION FOR ENHANCED SENTENCING?

8.198 In Chapters 4 to 7 of this report we considered the challenging question of which characteristics should be specified in hate crime laws and how they should be defined.

8.199 An issue that we considered in Chapter 17 of our consultation paper was whether, beyond these defined characteristics, there may be scope for a more flexible approach to characteristic recognition in the context of enhanced sentencing. 719We suggested that this might be a way of recognising specific occurrence of characteristic targeting that did not fall within one of the currently defined groups, and for which there may not be such widespread evidence.

8.200 However, we also noted that there were potential problems with this suggestion:

laws in addressing the most serious, and socially damaging forms of hate; and

apply. This could create legal uncertainty, lead to undesirable outcomes, and could place sentencers in a difficult situation if they are forced to decide whether an individual characteristic should be recognised.

8.201 If a more flexible approach were to be considered, the options that we considered most viable were:

Consultation

8.203 We asked for consultees’ views at consultation question 38 and summary consultation question 11.

Consultation Question 38

We invite consultees’ views on whether a more flexible approach to characteristic protection would be appropriate for the purposes of enhanced sentencing.

Further, we invite consultees’ views on whether this might be best achieved by:

Summary Consultation Question 11

Do you think that a wider group of characteristics should be protected through the process of sentencing?

If yes, should this be achieved by:

We agree that a reformed law should have the flexibility suggested. This would help respond to the realities of hate crime and social developments over time, which to date have led to a confusing patchwork of protection.

We do not have specific views on the best way to achieve this, but it must ensure that the flexibility is exercised in a manner consistent with human rights standards and that sufficient guidance is available on the situations in which it is likely to become relevant and how it will be applied when it is.

It is submitted there should be more flexible approach to sentencing when examining the harm done to those with protected characteristics. A combination of the proposed approaches, especially a combination of proposal (a) and (b), would be best. The recognition of additional characteristics in sentencing guidelines is likely to be of least use out of those proposals, though they should still be considered to achieve an optimal amount of sentencing flexibility.

Whilst legal certainty may be more easily achieved through identifying individual characteristics in statute, we agree that a more flexible approach is justified. The desirability of certainty in sentencing practice and the consistent application of any enhanced regime leads us to reject the open-ended “residual category” in preference for a set of criteria by which a court could recognise the targeting of a characteristic as a hate crime. This would enable a sentencer to treat hostility towards a non-listed characteristic as an aggravating factor in the appropriate circumstances. Based on the available evidence, the sentencer is well placed to assess whether, in the case before them, additional harm was caused to the victim because of hostility towards a characteristic of the victim: whether the characteristic was core to the identity of the victim, and whether the characteristic group is one which faces systemic disadvantage in society. We understand the reluctance of the Sentencing Council to propose certain characteristics (not set out by Parliament) which would oblige a sentencer to impose an enhanced sentence.

[W]e believe that anyone experiencing a hate crime because of their visible difference, should be able to have this recognised, and protected through the introduction of a standalone characteristic. Alternatively, the definition of disability could be expanded to explicitly reference visible difference.

If visible differences aren’t protected as a standalone characteristic, or explicitly recognised via the definition of disability, then Changing Faces believes that a more flexible approach to characteristic protection through enhanced sentencing could allow some recognition for victims.

We believe a wider group of characteristics should be afforded the same equal treatment as the existing five hate crime characteristics through the process of sentencing. Providing any new characteristics pass the criteria test as stated above.

This should be achieved by way of sentencing guidelines rather than the residual category. This approach will prevent courts from recognising additional characteristics that haven’t passed the hate crime characteristic criteria test.

number of protected characteristics.”

characteristics. While age, sex, race etc are already established categories, we need robust general laws that safeguard citizens across a multiplicity of identities without having to list every possible identity individually.”

We are not persuaded that there should be a more flexible approach to characteristic protection for the purpose of enhanced sentencing, since this would tend to devalue the concept of hate crime. Additional circumstances can always be taken into account in the sentencing.

If characteristic protection is extended, we have no comment on how such characteristics should be selected or recognised. However, depending upon the nature of any additional characteristic, there may be practical difficulties in proving the hate crime element if the existing two-limbed hostility test is retained.

Furthermore, the greater the number of protected characteristics, the greater the risk of diluting the essence of hate crime which is the requirement for extra protection within the criminal law for historically victimised communities. The expansion of the number of protected characteristics risks further complicating the hate crime legal framework, and a ‘flexible approach’ to the list of protected characteristics is likely to lead to a lack of clarity and confusion about hate crime amongst practitioners and within wider society.

Stonewall recognises that there may be benefits to establishing a more flexible approach to characteristic protection, such as the ability to recognise new characteristics in hate crime legislation. Nevertheless, the Commission has stated that their priority in conducting this hate crime review is parity. We are concerned that proposals putting forward a flexible approach may have the unintended consequence of creating a new hierarchy in law: where new protected groups which emerge in relation to enhanced sentencing do not have access to the protection afforded to other protected characteristics under the aggravated offences model.

Conclusion following consultation

THE RELATIONSHIP BETWEEN AGGRAVATED OFFENCES, ENHANCED SENTENCING AND THE BASE OFFENCES TO WHICH THEY RELATE

Aggravated offences and alternative verdicts

Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

In summary cases there is no power for the court of trial to return an alternative verdict to a lesser or alternative offence. Therefore, in cases heard in the magistrates' court the “basic offence” should normally be included as an alternative charge. This will enable the court to convict the defendant of the “basic offence” when it finds those facts to be proved, but is not satisfied in relation to the element of racial and religious aggravation...

For cases tried in the Crown court, it is good practice to include the basic offence as an alternative count on the indictment, even though the jury has the power to return an alternative verdict. The inclusion of the alternative count clarifies the position at the outset and avoids reliance on the trial judge or prosecuting counsel in bringing the possibility of an alternative verdict to the jury's attention.722

Consultation Question 34

We invite consultees’ views on whether where only an aggravated offence is prosecuted, the Courts should always be empowered to find a defendant guilty of the base offence in the alternative.

Consultation responses

convict, the defendant is presumed innocent. you can’t just have a back up charge waiting in the background. That's not justice. Innocent people could be tried and tried again. That's inhumane.”

Defaulting to a base office if the aggravated office is not proven is unnecessarily punitive.”

crime legislation. I have no doubt that my views will in the main be ignored as they do not sit well in the current political climate however allowing a court to step down a charge will provide some protection to those who had no intent to commit a hate crime but were caught up in the heat of any prevailing circumstances.”

nature of hate crime legislation still stand.”

They certainly should be empowered to find a defendant guilty of the base offence should the aggravated element not be considered proven beyond reasonable doubt.

8.233 Organisations with expertise in criminal justice were generally supportive of our proposal suggestion. The CPS stated:

This would be a positive and helpful change, particularly in respect of cases in the magistrates’ courts where alternative verdicts are not available. It would also not preclude the prosecution from continuing to follow good practice by charging/indicting the aggravated offence and the alternative “basic” offence in all appropriate cases.

8.234 The Magistrates Association also agreed:

Yes. We think this power will provide greater flexibility to magistrates' courts. However, as noted in the consultation paper, it would be important for clear guidance to be provided to ensure the prosecution clearly sets out the alternative available to the court.

8.235 The Antisemitism Policy Trust supported the proposal “with caution”, but noted that:

One unintended consequence of this is charge bargaining, in which prosecutors might be willing to accept a guilty plea to the basic offence, provided that the aggravated charge is dropped....

Conclusion following consultation

8.236 Amongst the small number of responses that engaged with this question, there was more support than opposition. We consider it particularly significant that both the CPS and Magistrates Association supported the proposal.

8.237 Allowing for alternative verdicts would be a procedurally helpful change and cause no unfairness to the accused.

Recommendation 16.

8.238 We recommended that for all aggravated offences, both the Magistrates’ Court and the Crown Courts should always be empowered to find the defendant guilty of the base offence in the alternative.

Availability of enhanced sentencing where the aggravated version of the offence has not been pursued

8.239 In our consultation paper we considered the interaction between aggravated offences and enhanced sentencing.724 We noted that, particularly where an aggravated version of an offence existed, confusion could arise as to which offence should be charged and prosecuted. Galop advised us that this confusion was compounded in the context of LGBT+ hate crime, as police sometimes (wrongly) presumed that an aggravated version of the relevant offence existed (when in fact aggravated offences currently only exist in relation to the characteristics of race and religion). Parity of treatment across characteristics may reduce some of this confusion.

8.240 We also considered the circumstance of a prosecution with racially or religiously aggravated features, which could have been charged as an aggravated offence, but was not. Enhanced sentencing cannot be applied where an aggravated offence in respect of the relevant characteristic has been prosecuted and failed. However, following R v O’Leary, there are circumstances where a court can apply the enhanced sentencing provisions where an aggravated offence has not been prosecuted (but could have been). 725In the consultation paper we argued that this was somewhat unsatisfactory from the perspective of the defendant. To provide greater certainty and fairness to the defendant, we proposed that it should be clear that a judge may not impose an enhanced sentence where an aggravated offence could have been charged but was not pursued by the prosecution. We asked whether consultees agreed with this approach:

Consultation Question 39

We provisionally propose that, contrary to the more flexible approach set out in R v O’Leary, a court should not be permitted to apply an enhanced sentence to a base offence, where an aggravated version of that offence could have been pursued in respect of the specified characteristic.

Do consultees agree?

Consultation analysis

8.241 There were a low number of responses to this question, which perhaps reflects its technicality, and the fact that it dealt with a somewhat peripheral issue.

8.242 In purely numerical terms, responses were fairly evenly split between yes and no.

8.243 The CPS were in favour of the proposal:

Yes. This is a logical approach and removes any doubt as to whether the prosecution is able choose whether to charge an aggravated offence or (for the sake of expediency) charge a basic offence and seek an enhanced sentence.

8.244 This is significant, because it is not necessarily advantageous to the prosecution to have their options limited in this way.

8.245 The Bar Council said:

Yes. Otherwise prosecutors may simply choose not to charge an aggravated offence and “leave it to the judge”, on the basis that without the burden on the Crown to prove the hostility as an element of the offence, it could still be recognised at sentence. Where the aggravation is serious enough to justify the enactment of a bespoke offence, the conduct [at] issue should be subject to a separate count. That is consistent with the general approach to sentencing. In O’Leary the [Court of Appeal (Criminal Division)] concluded that in the particular circumstances of that case, ... the sentencing judge was justified in applying the enhanced sentencing provisions where an aggravated offence has not been prosecuted. However the Court observed:

“Our conclusion upon this issue should not be taken as any endorsement for the view that the prosecution are thereby relieved of their duty to consider the indictment with care. On the contrary, in the majority of cases where the evidence supports an aggravated form of assault, then it should be placed upon the indictment. However we can understand in the particular circumstances of the present case, where another set of alternative offences had already been placed on the indictment for the jury to consider, adding further alternatives under section 29 of the Crime and Disorder Act 1998 would have had the effect of overloading the indictment and overly complicating the jury’s task.”

The risk of overloading the indictment is ever present when addressing aggravated offences (see for example our response to question 32 above), but the fact that there may be rare cases where even the presence of one additional count would “overly complicate” the jury’s task and lead to a difficult charging decision, is not, on this issue, a justification in our view to abandon the principles of certainty and fairness to the defendant.

8.246 The Magistrates Association also agreed:

We agree that if there has been insufficient evidence to prove an aggravated version of an offence, it is unlikely that a sentence should be enhanced under hate crime provisions. Of course, sentencers have the discretion to aggravate a sentence using other factors, as appropriate.

8.247 However, there were also some personal responses that disagreed with this proposal:

I very much agree with the approach in R v O'Leary. It is exactly the approach needed to demonstrate a fair and just criminal justice system. I say this also in the context that I would dispense entirely with all aggravated offences.

8.248 The UKLFI Charitable Trust also disagreed: “We would support the approach in R v O’Leary.”

Conclusion following consultation

8.249 The fact that the key prosecution agency is in favour of a reform that largely favours the defendant strongly supports the conclusion that this is a worthwhile reform. This view was bolstered by the criminal justice expertise of the Bar Council and the Magistrates Association.

8.250 However, one further issue requires consideration: assaults on emergency workers726 that also involve hostility on the basis of a protected characteristic. For example, if an Asian paramedic were assaulted in the course of his or her duties, and the perpetrator of the assault also demonstrated hostility on the basis of the victim’s race. We did not cover this issue in our consultation paper.

8.251 Here there are two distinct aggravated offences that may apply: racially or religiously aggravated assault contrary to section 29(1)(c) of the Crime and Disorder Act 1998 or an assault on an emergency worker contrary to section 1 of the Assaults on Emergency Workers (Offences) Act 2018 (AEWA 2018). There are no aggravated versions of the latter offence.

8.252 Additionally, section 67 of the Sentencing Code contains a provision for a sentence uplift that requires the court to increase the sentence (within the available maximum) for a range of offences relating to assaults and threats against a person.727 This operates in a similar way to the enhanced sentencing regime.

8.253 Assaults on emergency workers that also target a protected characteristic -particularly race - are not uncommon. Indeed, the CPS has developed specific guidance on this issue:

Where an emergency worker is subject to a racially/religiously aggravated assault, section 29(1)(c) of the Crime and Disorder Act 1998 should be charged, as otherwise emergency workers would have less legal protection from racial/religious assaults than ordinary members of the public. A trial alternative under section 1(2) of the [AEWA 2018] should be laid to allow the court to convict the defendant if they are not satisfied that the element of racial or religious aggravation is proved. Further, a sentence uplift should be sought under section 2(6) of the 2018 Act to reflect the statutory aggravating factor of the victim being an emergency worker.728

8.254 However, the conclusion that the aggravated assault offence should be charged “otherwise emergency workers would have less legal protection from racial/religious assaults than ordinary members of the public” seems to be based on the fact that the section 1 AEWA 2018 offence currently has a 12 month maximum penalty, compared with the 2 year maximum for the racially aggravated assault offence. The government is proposing to increase the maximum penalty for the section 1 AEWA 2018 offence to two years imprisonment in section 1 of the Police, Crime, Sentencing and Courts Bill 2021 that is currently before Parliament. If this provision is passed, it would make the charging decision for prosecutors less obvious. Indeed, it is quite possible that there would be a scenario where an emergency worker was assaulted while clearly acting in the exercise of the functions of that role, but the allegation of a racial component is more contested. The CPS may wish to put the racial allegation before the court, but consider the best prospect of conviction would be for the section 1 AEWA 2018 assault offence, not the racially aggravated offence. In this scenario it would seem more reasonable for the prosecution to pursue the AEWA 2018 Act offence on the indictment, and then seek an enhanced sentence uplift in addition. Should the court fail to accept the section 1 AEWA 2018 aggravation had been proven, but find the defendant guilty of the base offence (assault), it would also seem reasonable for the prosecution to seek a sentence enhancement for the base offence on the basis of the hostility element, and for the court to apply it if satisfied to the criminal standard.

Recommendation 17.

Chapter 9: The legal test for aggravated offences and enhanced sentencing

INTRODUCTION

ineffective in the context of disability hate crime?

CURRENT LAW

1998 (“CDA 1998”) or the Sentencing Code (“SC”), and there is no standard legal definition. Crown Prosecution Service (“CPS”) guidance states that “consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, prejudice, unfriendliness, antagonism, resentment, and dislike.”732

The Crime and Disorder Act 1998

The Sentencing Code

“membership” in relation to a racial or religious group, includes association with members of that group;

by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character[.]743

THE HOSTILITY TEST AND OTHER LEGAL MODELS

SHOULD THE LEGAL TEST BE THE SAME FOR ENHANCED SENTENCING AND AGGRAVATED OFFENCES?

Consultation

Consultation Question 21

We provisionally propose that the legal test that applies in respect of enhanced sentencing should be identical to that which applies to aggravated offences.

Do consultees agree?

In my view Hate Crime laws have no place in a liberal society and the existing Hate crime laws should be scrapped, not expanded. Anyone arguing in favour of these laws wants to create a less free, less liberal society, which goes against the culture and history of this country.

The expression of someone's opinions should never be a matter for legal enforcement and freedom of speech and expression is required in a free society.

You cannot reasonably legislate against speech or expression on the basis of causing offense and this is arbitrary and purely subjective.

These laws should be repealed, not expanded.

crime was motivated by hatred. Yes we shouldn't ignore the hatred and we should analyse the cultural context of it, but why does it make someone need a more harsh sentence?”

therefore there should be no legal test applying in respect of enhanced sentencing.”

We agree that the legal test applying to both enhanced sentencing and aggravated offences should be identical. This would increase understanding and minimise confusion. There appears to be no convincing argument in favour of retaining distinctive tests for each.

Conclusion following consultation

Recommendation 18.

THE DEMONSTRATION LIMB

Ministers recognise that the creation of offences which required the prosecution to prove that the offence was motivated on racial grounds would create a difficult hurdle to be overcome by the prosecutors. The prosecution would need to distinguish a racial motive from other possible motives and would have to demonstrate the degree to which a person had been influenced by various motives. There may be a whole range of different circumstances and motives at work in such cases and this may put a conviction in doubt for all but the most overtly racist incidents.

The government intends that the new offences should cover cases where the prosecution is able to show racial motivation but it believes that for most racial incidents of violence and harassment a much more realistic test will be necessary.747

We do not favour the demonstration of hostility test. In many cases evidence of the demonstration of hostility immediately before, during or immediately after the offending conduct, for example, through speech, will be available to make good the motivation test. In other cases however that behaviour may be unrelated to the reason for the offence, and involve little more than spontaneous insult.748

The threshold of evincing malice and ill-will, or demonstrating hostility, may well catch words uttered “in the heat of the moment”. But that should be no excuse. This threshold does not require the court or jury to make a judgment about the accused's character generally; what is significant is the fact of what has been said (or otherwise evinced) and the potential impact that has on the victim and the wider group who share the relevant protected characteristic. It is worth remembering here that this is not just a question of a person demonstrating hostility or using bad language towards another. The underlying conduct must amount to an offence (for example, threatening or abusive behaviour, contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010). The significance of the demonstration of hostility is that it highlights the context of that offending behaviour. The impact of a particular remark or action has to be taken into account: it upsets people in a direct way and targets the core identity of the individual or group. It is vital to send a message that this will not be tolerated or shrugged off as “mere banter”. To do that risks undermining the principles of equality and respect.750

Consultation

Consultation Question 22 and Summary Consultation Question 5

We provisionally propose that the current legal position - where the commission of a hate crime can be satisfied through proof of “demonstration” of hostility towards a relevant characteristic of the victim - be maintained.

Do consultees agree?

Yes. The majority of hate crime cases involve the demonstration of hostility towards the victim immediately before, during or after the commission of the offence.

Whilst the demonstration test does not require any causal link between the demonstration and the perpetration of the offence, we agree with Goodall’s line of reasoning as described by the Commission in paragraph 15.32 [of the consultation paper]: the offender who turns to abusive slurs based on protected characteristics during the conduct of the offence is capable of understanding the purport of their words.

Additionally, we recognise the harmful “subjugating effect” the words will have on the victim, as described by Walters in paragraph 15.33 [of the consultation paper].

Maintaining the demonstration effect will enable the police and criminal justice agencies to continue recognising this harm.

Yes, we agree that this “demonstration of hostility” proof should be maintained. Hate crimes already receive unsatisfactory prosecution and removing this method of proof would further undermine this and the confidence of victims to pursue legal remedy. Whether the demonstration of hate at the commissioning of the crime aligns to the underlying motivating intent is immaterial to the impact of the crime on the victim and wider society.

Yes. “Hostility” is difficult to evaluate - our research indicates that individuals have very different thresholds for assessing whether someone has been motivated by prejudice, whether their actions should be considered aggressive/hostile and whether they should face any sort of prosecution or sanction. As such, it is likely that demonstration of hostility could be highly subjective, resulting in unevenness in how the law is applied. Trying to assess “objectively” what another individual has done is likely to result in conflicting perspectives; those who adopt a free-speech outlook are likely to view a (potentially) hateful act as non-hostile whereas those who adopt a critical race theory perspective may view it as definitely hostile and hateful. These differing positions are often irreconcilable.

A further concern is that this part of the law depends heavily on how the “demonstration” of hostility is evidenced. If the threshold for demonstrating hostility is not set at a sufficient level then actions which belie ignorance, or a lack of awareness, could erroneously be considered hateful. This might lead to overcriminalization. However, at the same time, unawareness is more often used as an excuse to counter accusations of prejudice than a genuine defence.

Overall, the demonstration of hostility, is an important part of the law given that otherwise it would solely rely on motivation of hostility, which is far harder to evidence. Thus, although there is a risk that the current two “limb” approach could be over-used we believe this is outweighed by the need to protect victims of hate.

All "Hate Crime" should be abolished. Providing additional protection for specific groups is unjust. Justice requires punishment be proportional to the harm inflicted, not if that harm had anything to do with “wrong think”.

"demonstration of hostility"? This just perception by the supposed victim, there is no subjective proof needed.

I have strong reservations about the consideration offered in the proposal in favour of retaining the current legal position, and summarised thus:

"Significant additional harm may still be caused to the victim and the wider community by such conduct, regardless of the offender’s motivations".

If a person acts in a way that was not intentionally hateful, or hatefully motivated, then it isn't hateful even if it also causes harm. This expands the brief of “hate crime" unacceptably beyond the original understanding of it, which is particularly dangerous when talking about aggravated sentencing. Moreover, conceptions of "harm" can be notoriously subjective and these days it seems too easy for a group to claim harm authoritatively for itself without independent evidence.

The offender who turns to racist language during the conduct of the offence is capable of understanding the purport of his words. He either intends to show racist antipathy for a reason associated with his attack - as Paul Iganski puts it, he makes a “quick calculation”- or he is callously indifferent to a meaning that at heart he knows his words have.755

Making a couple of comments on Twitter is very different to having an evidenced history of targeted hostility.

Conclusion following consultation

Recommendation 19.

THE MOTIVATION LIMB

It is generally less contentious than the demonstration limb, though some opponents of hate crime laws still object on the basis that it amounts to a “thought crime”, with the defendant being punished not only the basis of the physical act of the crime, but also on the basis of why they committed it. However, hate crime laws are not unique in this regard. Various different mental states may be applicable to different criminal offences. For example, proof of a mental state of “intention” is required for murder, while “recklessness” or “gross negligence” is required for involuntary manslaughter. Many offences also incorporate an additional requirement for a particular mental element. For instance, conviction for theft or fraud requires that the defendant was acting “dishonestly”.

The use of the word “hostile” is a major barrier to prosecuting learning disability hate crime.

There is a huge gulf between reports of disability hate crime and victimisation in the England and Wales Crime Survey (~70,000 reports in 2018/19), the number recorded by the police (8,256), and the number of completed disability hate crime prosecutions (752). Dimensions’ work with the National Office of Statistics found that people with learning disabilities and/or autism are four times more likely to be victims than people with other disabilities but are hidden in the data because of the way that hate crimes are recorded.

Some of the disparity between the experience of people with learning disability and the numbers recorded and prosecuted is due to police forces not being trained well enough to enforce the law as it currently stands, and there are challenges in identifying learning disability hate crime, but the law itself needs to be better at capturing victimisation of people with learning disabilities in hate crime legislation.

Crimes against people with learning disabilities are not always openly or conventionally “hostile” but do take advantage of their protected characteristic through manipulation or opportunism. These incidents can be belittling and dehumanising and cause significant mental distress, but the victims of these crimes do not receive the proper protection that ought to be due to them under the law; the law as it stands is failing them.

So far, there has been a systematic failure by public authorities to recognise the extent and impact of harassment and abuse of people with learning disabilities, to take preventative action, and to intervene effectively when it happens. This review of hate crime is an important opportunity to begin the process of change by addressing the shortcomings in the law itself.

Victims are “selected” because their “difference” means that they are deemed to be somehow less, and their worth as equal members of society is therefore diminished. We see evidence of this throughout the cases of so-called “mate crime”, where offenders purposefully manipulate their victims, treating them as playthings to be used and later abused. These types of incident cannot be explained away by saying that the victim was simply vulnerable to abuse. Their perceived vulnerability is based on a prejudice that the offender holds towards the victim. Hence, evidence that shows that an offender purposively selects a perceivably vulnerable victim by reason of their protected characteristics is evidence of identity-based prejudice. 761

A number of states in the United States have hate crime laws that adopt such an approach.762

Consultation

Consultation Question 23 and Summary Consultation Question 6

We invite consultees’ views as to whether the current motivation test should be amended so that it asks whether the crime was motivated by “hostility or prejudice” towards the protected characteristic.

We agree with the reasoning outlined in the consultation paper regarding adoption of a slightly widened “hostility or prejudice” test to try to better accord with crimes which may be experienced by disabled or older people, where hostility is currently hard to prove in a court. The widening of scope is not significant but may be enough to lead to a greater level of prosecutions without unjustifiably diluting the purpose of hate crime legislation.

Galop supports the Law Commission proposal to extend the legal test from “hostility” to “hostility or prejudice” as a means of making the test more relevant to the forms of abuse that deaf and disabled people face. In our view “prejudice” is an accurate description of the mental element driving hate crime offending and it is a concept that is generally well understood among the public, criminal justice professions, the judiciary and jurors.

As above, yes hostility should be extended to prejudice. And prejudice should have a broad understanding relevant to the context and patterns of the targeted behaviour received by each protected group.

The term “hostility” is most apt to apply to offences of violence or threats of violence (including criminal damage) as first enacted in s 28 of the Crime and Disorder Act 1998. Its application to sentencing for other offences such as theft, burglary by ss 145-146 of the Criminal Justice Act 2003 gives rise to the question how hostility is demonstrated in such crimes. There will be cases where hostility is apparent from evidence of words or gestures used at the time of the offence, or from material found on the accused’s electronic devices. As the Law Commission points out, individuals or sections of the community are targeted because of perceptions about their vulnerability or as acts of gratuitous malice (which is not necessarily a synonym for “hostility”).

Given the test for proof of hostility or prejudice, and the social need to protect the vulnerable, we agree with this recommendation.

At paragraphs 15.71-15.72 [of the consultation paper] the Law Commission poses without answering the question whether “hostility” should be replaced by a more extensive term, such as “exploitation” or “discrimination.” Like the Law Commission we consider that more evidence is required to justify the reduction of the current ingredients of an offence, which is rightly considered as marking condemnation as well as carrying a substantial sentence.

Amending the current “motivation” test to explicitly include “prejudice” would bring it in line with para 14.4c of the Code for Crown Prosecutors which states that, “It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victim’s actual or presumed... protected characteristic”. As such this change would be welcomed. However, it would be inconsistent for the “demonstration” limb to only refer to hostility if the “motivation” limb were to refer to both “hostility and prejudice”. Consistency may better be delivered through also amending the first limb to refer to a “demonstration of hostility or prejudice”. Furthermore, the addition of “prejudice” may be too subtle a shift to cover the crimes committed against disabled people because of their actual or perceived vulnerability or through opportunism or selection of an “easy target”. One way of addressing this gap in the law could be to add a third limb to the existing two-limb test: “The offender targeted the victim by reason of the victim’s protected characteristic”. Under this model, which would apply equally to all of the protected characteristics, the test for hate crime aggravation would be met if the prosecution could prove one or more limbs of the new three-limb test. This model could enable the effective prosecution of all types of hate crime, including crimes targeting disabled people which lack the element of “disablist hostility”.

The legal framework for prosecuting hate crimes should reflect the experience of people who have a learning disability and autism.

We support the introduction of a broader definition of hate crime to accommodate the reality of victims who have a learning disability and autism.

Above all, the legal framework should recognise that crimes against people who have a learning disability and autism often entail a disregard for the victim’s dignity and autonomy on account of them having a learning disability or autism. Introducing prejudice into the legal definition of hate crime is a proposal we welcome.

Additionally, we advocate for the introduction of contempt within the legal definition of hate crime.

On one hand, we can see how adopting the wording “hostility or prejudice” within the motivation test could particularly help to ensure that the law covers exploitative and prejudice-based criminal conduct, which may not meet the threshold of explicit hostility. This conduct is often targeted at disabled people.

However, we have heard concerns from one of our members that any changes in the legal tests - which have been used for past two decades - could create complexity in both theory and practice. This could lead to further delays in the criminal justice process and in turn negatively impact victims’ experience within the [criminal justice system].

motivation, whether obvious or not is irrelevant in a sensible grown up court of law where you are not waving symbolic flags around.”

differentiating between crimes in this manner abhorrent. If a violent act is carried out against someone for no reason, it does not mean that the protagonist is less guilty than if he carried out the same violent act because the person was a different race, sex or age. The violent act is what matters.”

not extended.”

“No. Prejudice is an unavoidable element of the human condition brought about as a result of our upbringing and experience. To that extent a person’s actions are always motivated by prejudice, whether knowingly or otherwise.

To widen the scope of motivation to include prejudice would risk criminalising people for their human nature.”

“Hostility should be the test. Prejudice is too wide. It should not [be] the role of the law to tell people what they should and should not be in favour of”.

“I think hostility is the right test, prejudice is harder to define and needs to be examined and discussed in the light of free-speech and questioning. Questioning something is not hostility nor prejudice.”

“It needs to just be hostility. Being prejudiced against someone is often taken to mean somebody thinks negatively about that someone, but that does not necessarily have to mean they are hostile to them as well, or that their views do not actually come from their own research or experience.”

“Hostility yes, prejudice no. By considering people’s opinions of a group is tantamount to "thought police". Only active hostility should be treated as a hate crime.”

“‘Prejudice’ is a vague word which means different things to different people. Including it in the motivation test could lead to ordinary, well-meaning people falling foul of the law, simply because they don't share another person's views.”

“I do not think the motivation test should be amended to include ‘prejudice’”

“The word “prejudice” should NOT be added to the motivation test. “Prejudice” and “discrimination” are too vague to be used here. Almost every interaction with another person is based on “prejudice” and “discrimination” to some extent. Offering an elderly person your seat on a bus is based on both prejudice and discrimination.”

Persons with disabilities are sometimes the targets of crime because they are seen as easy targets by perpetrators. The motivation behind these crimes remains clearly disablist. These victims are selected because they are 'inferior' to able-bodied persons, even if, in terms of animus, the perpetrator may be indifferent to persons with disability. Hostility or prejudice are inapposite concepts to capture this harm.

Conclusions following consultation

disability - race, religion, sexual orientation and transgender - hate crime offending is more typified by overt hostility, and we do not anticipate that the addition of prejudice will substantially expand the range of prosecutions in these contexts. Indeed, as we have noted, the term “prejudice” is commonly used in “motivation-only” jurisdictions -for example, Canada and the largest Australian States (Victoria and New South Wales) - and these jurisdictions are not notable for having a disproportionate number of hate crime prosecutions. However, for the more subtle forms of abuse and exploitation that characterise disability hate crime, the addition of “prejudice” to the motivation test may make a small but significant difference in recognising more of the types of conduct outlined at paragraph 9.65.

“contemptuous” motivation towards a characteristic that could not also be described as prejudicial or hostile. Parliamentary Counsel has also advised us that the addition of “contempt” may risk casting doubt on the generality of the reference to “prejudice”, which on its ordinary meaning should cover contempt. The addition of contempt could therefore lead to further confusion in the operation of the law, without any clear tangible benefit.

Recommendation 20.

Chapter 10: Offences of stirring up hatred

INTRODUCTION

In 2018/19, there were thirteen prosecutions for stirring up hatred, resulting in eleven convictions. The CPS identified this as a “spike” with several prosecutions attributable to attempts to stir up religious hatred in the aftermath of the Manchester bombing in March 2017 and the London Bridge/Borough Market attack in June 2017 (CPS Hate Crime Report, 2018-19, p 47). There were nine prosecutions in 2017/18, resulting in eight convictions; four prosecutions in 2016/17, all successful; one prosecution in 2015/16, successful; and one prosecution in 2014/15 resulting in a guilty plea.

In particular Communications Act 2003, s 127(1); Malicious Communications Act 1988, s 1; and Public Order Act 1986, sections 4, 4A and 5. Where aggravated by racial or religious hostility, the offences in the Public Order Act can be charged as aggravated offences under the Crime and Disorder Act 1998 s 31.

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 4.95.

Written evidence to the Joint Select Committee on Human Rights inquiry into Freedom of Expression, 27 January 2021.

Including Canada (R v Keegstra [1990] 3 SCR 697 777), South Australia (Racial Vilification Act 1996, s 4), Victoria (Racial and Religious Tolerance Act 2011, ss 7 and 8) and Australian Capital Territory (Criminal Code 2002, s 750).

Hate Crime: Should the Current Offences be Extended (2014) Law Com 348, paras 7.113 to 7.122. stereotyping of disabled people in films and television programmes or “misgendering” or “deadnaming” trans people.7

or otherwise, alarmed, or distressed, or perceive speech to be ‘hateful’.”

person locked up.”

The Charlie Hebdo cartoons should be 100% legal, but would likely become illegal should the proposal be acted upon.

No, Charlie Hebdo should not be outlawed.

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 18.221 to 18.222.

In September 2005 the Danish newspaper Jyllands-Posten published twelve cartoons, several of which portrayed Muhammad. French satirical magazine Charlie Hebdo republished the cartoons in 2006. In 2011 the Charlie Hebdo offices were firebombed and in January 2015 two terrorists attacked the Charlie Hebdo offices murdering eight of the newspaper’s staff, two police officers, a maintenance worker and a visitor. During negotiations to secure the attackers two days later, one of their accomplices attacked a Kosher supermarket in Paris, murdering four Jewish customers and taking fifteen other customers hostage.

The test for this offence is that the person sends an a letter, electronic communication or article of any description which conveys (i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known or believed to be false by the sender; or (b) any article or electronic

The criminalisation of grossly offensive speech is predicated on the notion that being offended is a harm that, when sufficiently serious, warrants the protection of the criminal law. This is a notion that the law should be slow to adopt. Ours is a society of many opinions; inescapably, then, there are as many avenues for causing offence - even serious offence. That someone is caused to be offended is no indication of the moral standing of the behaviour causing that offence. It is therefore not clear that offence - without more - is of the nature or level of harm sufficient to invite the interference of the criminal law.767

communication which is, in whole or part, of an indecent or grossly offensive nature with the purpose of causing distress or anxiety to the recipient or to any other person to whom he or she intends that it or its contents or nature should be communicated.

case directly attributing to the Law Commission a statement which we had never made.772

Stirring up offences and freedom of expression

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article [i.e. 10] from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention ... whether the text in question sought to stir up hatred, violence or intolerance, and whether by publishing it the applicant attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it. 780

the first category of the Court’s case-law on ‘hate speech’ is comprised of the gravest forms of ‘hate speech’, which the Court has considered to fall under Article 17 and thus excluded entirely from the protection of Article 10. The second category is comprised of ‘less grave’ forms of ‘hate speech’ which the Court has not considered to fall entirely outside the protection of Article 10, but which it has considered permissible for the Contracting States to restrict”.781

Stirring up offences and other rights

The limits of the criminal law

close down debate. That avoids having to look at the reasons advanced and debate with them; so much easier just to cry misogynistic, homophobic, transphobic, racist or (that favourite catch-all) fascist; then comes the call to the police or public shaming on social media or an email to HR department.”

the risk of being labeled transphobic or a terf, 795which will almost certainly result in abuse, both online and in real life.”

their gender rather than their arguments or actions.”

CURRENT LAW

Racial hatred

Hatred on grounds of religion or sexual orientation

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Should the existing stirring up offences be retained?

Your research and joining Twitter early in June 2017 exposed you to a great deal of extreme racist and anti-Islamic ideology. You were rapidly radicalised over the internet encountering and consuming material put out in this country and the USA from those determined to spread hatred of Muslims on the basis of their religion. The terrorist atrocities perpetrated by extremist Islamists fuelled your rage. Over the space of a month or so your mind-set became one of malevolent hatred. You allowed your mind to be poisoned by those who claim to be leaders...

You attempted to kill at least a dozen people and succeeded in taking the life of a peaceful man you knew nothing about and had never met. You acted alone. You had not been radicalised over a long period of time but your rapid decline into irrational hatred of all Muslims turned you a danger to the public.818

THE LEGAL TEST FOR THE STIRRING UP OFFENCES

Differing standards for race and other characteristics

Even though it was generally (although not unanimously) agreed that sexual orientation is, like race, an immutable characteristic, the inclusion of the [sexual orientation] hatred offences at the narrower threshold of the religious hatred offences was not questioned. Rather than any particular property of sexual orientation, the establishment of the [sexual orientation] hatred offences at the stricter threshold seems to reflect the extent to which homosexuality was viewed as a controversial and contestable topic.824

Insulting conduct

Intentional stirring up

Law enforcement, in particular national advisors for hate crime policing, have found that a higher threshold for committing stirring up hatred offences, particularly in relation to religion and sexual orientation, is limiting efforts in tackling hateful extremism and does not capture the ideological motivations of hate groups and extremist actors.832

Hateful extremist actions, behaviours, or content which are intended to stir up racial hatred but are not done in a threatening, abusive, or insulting manner (and religious hatred which is not done in a threatening manner, but nevertheless is intended by the perpetrator to incite religious hatred) would not contravene this legislation... We are currently seeing a large amount of extremist activity which is clearly intended to stir up various types of hatred, but is done in a non-threatening way so is ‘legal’ under the Public Order Act.833

Too often those within the criminal justice system are unable to discern the difference between robust theological arguments and carefully constructed campaigns of threats, hatred and intimidation by extremist actors... There is a lack of cultural and religious extremism expertise within community policing and the criminal justice system to recognise stirring up of hatred if religious or theological terminology is used and in an unfamiliar language.834

Our provisional proposal

Intentionally stirring up hatred

We provisionally propose that intentionally stirring up hatred be treated differently from the use of words or behaviour likely to stir up hatred. Specifically, where it can be shown that the speaker intended to stir up hatred, it should not be necessary to demonstrate that the words used were threatening, abusive, or insulting.

Do consultees agree?

if the language requirement was removed, you may be able to show that the speaker intended to stir up hatred by demonstrating the relevant material was generated by a group whose agenda is explicit about their goal to stir up hatred. To illustrate this point with a case example, in 2016, four individuals were successfully prosecuted for stirring up hatred offences for placing stickers around a university campus with National Action branding. The language in these stickers was less explicit than what is often seen in stirring up hatred cases and read variously ‘white zone’ and ‘Britain is ours, the rest must go’. The CPS built a case using evidence of the nature and goals of the group to demonstrate the intent of the suspects in placing the stickers around campus and to further demonstrate the likely impact of the stickers by adducing evidence of the groups’ parallel use of social media.

Proving intent is almost impossible.

What is the definition of 'intention', how is this proven, from whose perspective?

How can you show what somebody’s 'intentions' are? This is extremely subjective, and very concerning that no proof would be required.839

The “likely to” limb

Consultation Question 46

We provisionally propose that where intent to stir up hatred cannot be proven, it should be necessary for the prosecution to prove that:

the defendant’s words or behaviour were threatening or abusive;

the defendant’s words or behaviour were likely to stir up hatred;

the defendant knew or ought to have known that their words or behaviour were threatening or abusive; and

the defendant knew or ought to have known that their words or behaviour were likely to stir up hatred.

Do consultees agree?

We are persuaded that it would be safe to remove the word ‘insulting’ by the evidence advanced by Lord Bracadale.

Subject to the response to Question 44 above, we agree that these elements of the offence create a sufficiently nuanced balance between strict liability and mens rea and allow the defendant’s personal circumstances to be taken into account in relation to what the defendant knew or ought to have known.

We do not see any challenges that would arise in applying the proposed amendment to the law. The proposed language of ‘known or ought to have known’ is well understood and similar to that used in legislation for other offences, for example, harassment.

We believe in free speech and do not consider "insulting" behaviour to properly be liable to criminal sanctions. It is the price we pay to live in a democracy.

We are concerned that some may view such a change as opportunity to use language and behaviour with the deliberate intention of insulting those sharing protected characteristics, while remaining just below the threshold of being “threatening and abusive”.

The meaning of “likely to”

The words “likely to” are not easily susceptible to statutory definition and we are not aware of their standard use in criminal statutes as part of the actus reus of an offence. In terms of causation it would be preferable to use a more precise form of words in the proposed legislation such as “real and substantial possibility”.

There would be significant challenges in defining the meaning of ‘likely to’ in statute as any definition would need to encompass the range of varied circumstances that arise in individual cases. Determining the meaning of ‘likely to’ is ultimately the type of determination best left to the common sense of jury members who see this material in context. As such, they are best placed to make judgments based both on the standards and expectation of the community and the impact the material in question would have on the mix of society they represent. We are not aware of any anecdotal evidence that juries are struggling to apply this law or that there are a statistically higher number of hung juries or jury challenges in these cases.

I would prefer the meaning of ‘likely to’ is left to the courts to decide. They are used to the interpretation of plain words in statutes, and I see no benefit in attempting to clarify them here.

“Knew or ought to have known”

There is one category of case which is so close to actual knowledge that the law generally treats a person as having knowledge. It is the type of case where [a person] deliberately refrained from asking questions lest his suspicions should be confirmed. He wanted not to know (‘I will not ask, because I would rather not know’).

appreciated, nonetheless, that the material was threatening or abusive and that it was likely to stir up hatred, for instance because of the known views of the author or contributor.

Is the “likely to” limb necessary?

Section 6 of the Race Relations Act is merely an embarrassment to the police.

Hedged about with restrictions (proof of intent, requirement of the Attorney General’s consent) it is useless to a policeman on the street ... The section needs radical amendment to make it an effective sanction, particularly, I think, in relation to its formulation of the intent to be proved before an offence can be established.

Recommendation 21.

SHOULD THE STIRRING UP OFFENCES COVER ADDITIONAL CHARACTERISTICS?

Other characteristics currently protected by hate crime laws

applying to racial hatred or the “narrow” test applying to religion and sexual orientation.847 We noted that the stirring up offences “do not cover pure abuse” but equally do not cover “criticism in the course of a debate on public policy, however adverse to the interests of the groups in question”. We noted, for instance, that one case cited by Mencap - a local councillor advocating euthanasia of severely disabled children - had not been prosecuted under public order legislation, despite a much lower legal threshold for conviction than under the stirring up offences.

[t]he question before the court in any particular case will not be whether the conduct in question occurred on a large enough scale to justify the original introduction of the offence. Rather, the question is whether the conduct that occurred in the particular case is likely to cause social harm of a type and degree sufficient to justify restraining it by criminalisation. Accordingly, from the human rights point of view it is not an objection that the requirements for new stirring up offences are not likely to be met in many cases. It would be an objection if the requirements for the offences would be met in many cases, but if in most of those cases it was impossible to demonstrate a pressing social need. Given the high threshold for the existing offences of stirring up hatred, we find it difficult to envisage such cases.848

Consultation

Consultation Question 48

We provisionally propose that the offences of stirring up hatred be extended to cover hatred on the grounds of transgender identity and disability.

Do consultees agree?

Disability and transgender identity are two completely different issues, and it is wrong for this question to present them as a package requiring a yes/no answer.

Transgender ideology is controversial and hate speech laws covering this area would clamp down on a subject of major political debate...

a contested and debated area within societal, political and sexual politics circles (transgenderism) and one is not (disability).”

together.”

extraordinarily large umbrella and the debate on trans women's desire to be recognised as actual women is particularly contentious at the moment. Legislation around this could shut down discourse totally.”

We remain concerned that the Commission’s consideration of whether to make sex/gender a protected characteristic alongside extending hate crime laws to cover other areas including ageism, and hostility towards other groups such as homeless people, sex workers, alternative subcultures and people who hold non-religious philosophical beliefs such as humanists etc could work in practice to result in the loss of legitimate public discussion and debate around numerous issues. While no doubt designed to provide enhanced protections to individuals from discrimination, any new laws must be justified and strict criteria agreed before the addition of any further characteristics into hate crime laws.

Recommendation 22.

Sex or gender

‘Involuntary celibates’ (or ‘Incels’) are an overwhelmingly male online community, whose members understand society as a three-tiered hierarchy dictated by physical appearance. Incels place themselves at the bottom of the pile, meaning that they perceive themselves to be forced into involuntary celibacy. The Incel worldview has been described as “a virulent brand of nihilism”, with many Incels advocating violence against women.855

Consultation

Consultation Question 49

We provisionally propose that the stirring up offences be extended to cover sex or gender. Do consultees agree?

so would be unworkable.”

believe, then there is no reason whatsoever to use "gender".”

subjective.”

I prefer a man to be able to say sexist things. He should be allowed to express an opinion. He should be stopped when he acts on them by preventing us from having jobs, freedom, houses or services but he should have the right to offend me. He should also have the right to have religious beliefs that say I am lesser. I can disagree and he can have his beliefs. Being offended should not be a crime. Encouraging people to beat, rape or murder is wrong and should be criminal. Thinking differently to me, should not be a criminal matter.856

Refuge strongly supports the proposal to introduce a ‘stirring up’ offence for misogyny hate crime. As the Law Commission noted in the consultation document, the ‘incel’ movement has grown in prominence over the past few years, resulting in real-life mass homicides targeted against women, which in some cases have been charged as terror offences. The apparent growing popularity of the 'incel‘ movement and ’manosphere’ should be a cause for serious alarm and serve as a definitive argument for why stirring up offences for misogyny hate crime should be introduced, in line with the existing stirring up offences. Anything less would place misogyny hate crimes on a lower position on a hate crime hierarchy.

Notwithstanding [our] reservations, if offences of this kind are to remain (in some form) then we do support the inclusion of transgender identity and disability (Question 48) and sex and gender (Question 49) as protected characteristics for such offences. We agree that the harms suffered by these groups are real and pervasive.

We remain concerned that the Commission’s consideration of whether to make sex/gender a protected characteristic ... could work in practice to result in the loss of legitimate public discussion and debate around numerous issues. While no doubt designed to provide enhanced protections to individuals from discrimination, any new laws must be justified and strict criteria agreed before the addition of any further characteristics into hate crime laws. Alongside this, laws must not work in practice to unintentionally provide pressure groups with a platform to stifle or close down important discussions. With this in mind, it is essential that . safeguards are included in any new hate crime legislation to protect freedom of expression and legitimate debate. While the Society recognises the Commission’s proposals to change offences of “stirring up hatred” to focus on deliberate incitement of hatred and provide greater protection for freedom of speech where no intent to incite hatred can be proven, it is essential that any safeguards do also work in practice.

Race or religious hatred is a genuine social cancer, typically comporting a desire to have a minority group removed or marginalised; those guilty of it would, in most cases, be perfectly happy if the relevant group did not exist at all. Misogyny, even in the extended sense it is given today, is something very different. It means merely distaste for the society of women, disavowal of sexual equality or participation in a social system that denies it. It affects not a marginalised minority but half the human race. Misogynists (or misandrists) overwhelmingly do not call for, and would not want, the elimination of the sex in question; they merely dislike the prospect of associating with it on a basis of equality...

There is no social problem of sex hatred equivalent to that of racial or religious hatred. Men do not go around saying they hate women in the sense that they would be happy if there were none, nor yet women men (as demonstrated by the sheer kookiness of French author Pauline Harmange’s succes de scandale “Moi les hommes, je les deteste”). True, there is a problem of discrimination, and undoubtedly in many cases women still end up short-changed. But while this may amply justify anti-discrimination laws, it provides no argument whatever for any stirring-up offence... 858

in the absence of any genuine sex hatred which has to be suppressed in order to secure social peace or non-marginalisation of females (or males), the only thing any such offence could bite on would be statements against sex equality, or in favour of the subjection of one sex to another.859

Analysis

While instances of real-world violence perpetrated by Incels remain relatively rare, the Counter-Terrorism Division of the Crown Prosecution Service has encountered a rise in extreme misogynistic hate speech in the UK, mainly perpetrated by Incels. They noted that the “spread of Incel ideology [in the UK] has been linked to an increase in misogynistic murders and several mass killings in Northern America”. Evidence gathered by HOPE Not Hate on websites promoting an extreme misogynistic worldview found that, after the USA, the UK is one of the major sources of user traffic. UK traffic came second globally for three popular Incel sites and fourth globally for a fourth Incel site.

Terminology

Recommendation 23.

Stirring up hatred against more than one characteristic

Consultation Question 50

We invite consultees’ views on whether the definition of hatred for the purposes of the stirring up offences should include hatred on grounds of one or more protected characteristics.

In principle, we believe that the suggestion that the Commission outlines ... could work, in terms of introducing a single offence of “unlawfully stirring up hatred” with the definition listing not only the characteristics, but also specifying the criminality of “hatred against a group defined by a combination of more than one characteristic” .

If hatred towards more than one characteristic is expressed, it should be noted, but it should neither enhance the sentencing, nor should it be counted as two different hate incidences. It should be counted as the more prominent one if possible.

If you are charged with a crime you should have the right to know exactly the charge against you so that you can properly defend yourself.

Where a person is convicted of an offence [of stirring up hatred] under section 4, the court must—

THE SCOPE OF THE OFFENCES

The Dwelling Exception

Problems with the dwelling exception

In most cases, it is obvious whether or not a building is a dwelling. Houses and flats are generally built to be lived in, to be used as dwellings. The fact that no one is living in it at the time of a burglary does not necessarily render a building other than a dwelling... We can envisage a situation where, for example, a newly built house may not yet be a dwelling. It may well be possible for a building built and previously used as a dwelling to become derelict, or to become a building site ... Hotels are not generally built to be used as dwellings ... Where someone lives in a hotel long term and uses it as their home, the hotel or a part of it may be a dwelling. Some rooms may be provided within a hotel for staff to live in. Such rooms could be dwellings.

Much would depend on the configuration of the rooms and the particular arrangements in each case.

Consultation responses

We provisionally propose that the current exclusion of words or behaviour used in a dwelling from the stirring up offences should be removed. Do consultees agree?

10.256 We received 1,569 substantive responses, the overwhelming majority opposing this proposal. For example, the following personal responses:

there would be a danger of people pursuing unnecessary litigation and so prohibiting freedom of speech.”

we relax, we may express careless words, but we often correct one another.”

10.257 Some key legal stakeholders, including the Bar Council, the Magistrates Association and the Association of Police and Crime Commissioners, supported our proposal, echoing our reasons. The Alan Turing Institute noted “The ‘dwelling’ requirement is a real limit for prosecuting online behaviour which typically takes place in an individual’s home. Although this is a dwelling, it is still a public space.”

10.258 Organisations responding “no” included English PEN, National Secular Society, Civitas, the Free Speech Union, the Evangelical Alliance, Christian Concern, Families Need Fathers, and the Christian Institute.

thought & expression in private, the fact is that what occurs in a dwelling is frequently NOT private in actual effect. Visitors deserve protection from hate. But MOST importantly, LGBT+ people often face life-damaging levels of homophobic and transphobic hate within their own homes (or their parents' homes).”

that sometimes their dwelling is where the offences generally occur.”

I think you are right to remove the dwelling defence, but it does need to be replaced with something else. Clearly it needs to be removed as it does not make sense to have a dwelling defence where online communications are concerned. However, even beyond this, as the offence currently stands, it is too wide from a freedom of speech point of view as it can apply to public or private conversations. This is not compliant with general freedom of speech principles as criminalisation of speech should be limited to the public sphere. The dwelling defence does not offer sufficient protection. A distinction based on public/private will ultimately offer greater protection as it will protect private conversations wherever they are held.

We agree with the updating of the private dwelling exception, but not its entire removal. We would recommend that it is replaced with a ‘private conversation’ defence as used in Canada.

Public vs private places
Public vs private acts
Private conversation

it is reasonable to infer a subjective mens rea requirement regarding the type of conversation covered by s. 319(2), an inference supported by the definition of "private communication" contained in s. 183 of the Criminal Code.

The difference between the word conversation and the word communication is, in the context of this statutory provision, significant. A communication involves the passing of thoughts, ideas, words or information from one person to another. Conversation is a broader term and it would include, as all conversations do, an interchange of a series of separate communications. 882

Statements made "in private conversation" are not included in the criminalized expression. The provision thus does not prohibit views expressed with an intention to promote hatred if made privately, indicating Parliament's concern not to intrude upon the privacy of the individual. Indeed, that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation...

Consequently, a conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public.885

Conclusion on the dwelling exemption

the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher".

Recommendation 24.

Written material and images

Consultation

We provisionally propose that the stirring up offences relating to “written” material be extended to all material. Do consultees agree?

I don’t think we should be creating a secular equivalent of blasphemy.

One of our concerns regarding an extension of stirring up offences relates to cartoons or other media that some religious groups find ‘blasphemous’. A key example could be pictures of the Islamic prophet Muhammad. Regardless of their context of the intentions behind their display or distribution, pictures of Muhammad cause offence to many Muslims who believe depicting Muhammad is blasphemous. Depictions of Muhammad have motivated some Islamic extremists to murder those who create or display them... The vast majority of Muslims are peaceful and lawabiding citizens who would not contemplate such atrocities. However, many Muslims would nevertheless argue that drawing ‘blasphemous’ images is “likely” to stir up hatred and may seek prosecution under hate crime laws”.

Nonetheless, French courts held that the Charlie Hebdo Muhammad cartoons were not in breach of this law because they were not an attack on Muslims generally, but on religious fundamentalism. The earlier publication of the cartoons by Jyllands Posten was not prosecuted in Denmark. The prosecutor concluded that section 266b of the Criminal Code, which criminalises dissemination of statements or other information by which a group of people are threatened, insulted or degraded on account of their religion, extends to cartoons. However, the prosecutor concluded that the publication of the cartoons did not breach section 266b.896

We believe that an update of this language is understandable, given the widespread and new nature of material disseminated online. However, we would raise concerns as to whether “intent” could be proven so easily in relation to non-written material, and an expansion may lead to legislation covering memes and GIFs on social media, in ways which will be difficult to police or enforce.

Hate can be expressed in different ways; in an online context, we have evidence of hate being expressed through memes, videos, gifs, snaps and both short- and long-form text. In principle, all forms of communication should come under the law.

The rationale for standardising the ‘stirring up’ offences to apply to any kind of published material is sensible.

Analysis
The growth of emojis and memes

Some extremists use specific tactics to attract young people. This can include using a range of content and platforms to reach larger audiences, including younger people, and disguising the content through memes, videos, or diagrams to conceal its extremism... 904

We are worried that harmful materials, such as memes or GIFs, 905may not be caught under current legislation and may be distributed on a much wider scale before being picked up.906

Lack of legal certainty

the definition of “written material” already includes “sign or other visible representation” ... We find it difficult to see why, for example, the Charlie Hebdo Muhammed cartoons are not a sign or other visible representation.

The Law Commission says that the offence of “stirring up hatred” under the Public Order Act 1986 should be extended beyond written material, which would mean that people who publish “inflammatory images”, i.e. newspaper and magazine editors, could face up to seven years in jail.

If the law of England and Wales was changed [emphasis added] in this way - and publishing “offensive” cartoons became [emphasis added] a hate crime - that would represent an extraordinary victory for terrorism.

Conclusion on written material

10.324 It is not clear whether the references to “written material” in the stirring up offences include non-verbal visual content, but for the reasons outlined above, we conclude that the offences should extend to such content. To the extent that the existing law is ambiguous it should be redrafted to put the matter beyond doubt.

10.325 While we appreciate the concerns of some individual and organisational respondents, we think these reflect concerns about the scope of stirring-up offences generally rather than their application to images specifically. Concerns that people might seek to use the stirring up offences to prevent the circulation of offensive or blasphemous images are no different in substance to concerns that they might seek to suppress offensive or blasphemous text in this way. The answer is not to seek to exclude images but to define clearly the limits of the offences.

Recommendation 25.

10.326 We recommend that the wording of the stirring up offences make clear that the offences can apply to any writing, sign or visual representation.

DISSEMINATION AND POSSESSION OF INFLAMMATORY HATE MATERIAL

10.327 There are at present eight different offences relating to dissemination of material likely to or intended to stir up hatred, with two offences - one for racial hatred and one for hatred on grounds of religion or sexual orientation - for each of written material, plays, audio or visual recordings, and television or radio broadcasts.

10.328 The defences available for each of the eight offences are subtly different.

10.329 There are, in addition, offences of possession of racially inflammatory material and inflammatory material. These use the same tests as the other offences - the material must be threatening, or in the case of race, abusive or insulting, and must be possessed with a view to its display, publication, distribution, showing, playing or inclusion in a programme service, with intent to stir up hatred (or in the case of racial hatred whereby hatred is likely to be stirred up). Thus ‘inflammatory’ is used synonymously with the categories of material covered by the existing stirring up offences.

10.330 In the consultation paper we provisionally proposed to replace the dissemination offences with a single offence of disseminating inflammatory material.

Consultation

10.331 We asked consultees the following question:

Consultation Question 41

We provisionally propose to replace sections 19 to 22 and 29C to 29F of the Public Order Act 1986 with a single offence of disseminating inflammatory material. Do consultees agree?

We would not be averse to the creation of a single offence of dissemination, provided it were narrowly drawn. It should in our view be a good deal more strictly confined than the various subsisting offences are at present. We would prefer it to be limited to distributing material or making it available to the public or a section of the public. The expression or dissemination of opinion within a household, or within an organisation only to the members of that organisation, should not be the subject of the criminal law, any more than the lending of a book in a pub.

The current offences, although lengthy, are not exhaustive and could provide opportunities for other material which is inflammatory to slip through the legal gaps. At a time of fast-paced technology and new modes of communication, additional materials may become available which are not currently included in legislation.

The current legislation has, over time, created substantial and troubling inconsistencies and the Bar Council welcomes the simplicity and clarity of the proposal.

Plays

We agree, in principle, with the proposal to replace sections 19 to 22 and 29C to 29F of the Public Order Act 1986 with a single offence for the reasons stated in the consultation document but subject to the comments below.

We consider it to be important that, as referred to in the consultation document, this single offence is supplemented with separate provisions specifying how the modespecific clauses apply. In particular, we believe that it is essential that there is a separate clause dealing specifically with how the offence applies to plays and other public performances.

The current provisions in section 20 of the Public Order Act 1986 on the public performance of a play contain wording which is of specific application to plays and which we, therefore, believe it is crucial to retain in the mode-specific clause referred to above. In particular, we strongly believe that the wording in the second limb of the offence in section 20, which states “...having regard to all the circumstances (and, in particular, taking the performance as a whole) racial hatred is likely to be stirred up thereby”, should be retained in relation to plays and other staged public performances.

We would want to avoid any rationalisation of provisions and defences inadvertently adversely affecting the position of those who present plays and other staged public performances.

The problem with consolidating the four offences into one is that some of the specific detail and defences which are an important part of the existing separate offences have been lost... The existing offence, under section 20 of the 1986 Act, criminalises people who present or direct a performance and either intend to stir up racial hatred or where racial hatred is likely to be stirred up. Sub-section 20(4)(a) specifically excludes from the offence person whose only involvement was as a performer.

Actors are not, as yet, criminalised by speaking words in a script that are likely to stir up racial hatred, but directors, producers and theatre owners can be.918

10.354 Equity was also concerned about this change urging that “employment relationship context should be considered in any assessment of their liability and accountability over performance content and intent”.

10.355 Removal of the defence for mere “performers” in the reformed Scottish legislation was not accidental. The liability for producers and directors of plays under section 4 of the Bill was contingent upon commission of the core offence by a performer. Had the exemption for performers been retained, the provisions relating to culpability of producers and directors would have been completely ineffective.

10.356 Ultimately, however, the Scottish Government decided that the provisions in clause 4 of the Bill could be safely withdrawn.

10.357 To the extent that it may be necessary to hold a producer or director responsible for a performance that stirs up hatred (and we are not aware of these offences ever having been prosecuted), we have concluded, as the Scottish Government did, that the criminal law of accessory liability is sufficient. A producer or director could be held criminally liable where he, she or it (the producer may well be a corporation) had encouraged, assisted, or procured919 the conduct. To be liable as an accessory, the producer or director would have to have acted with the same intent as required for a principal - that is, with intent to stir up hatred or knowing (or having ought to have known) that the material was threatening or abusive and likely to stir up hatred. The burdens of proving these matters would lay on the prosecution rather than being, as at present, on the producer or director to disprove.

Broadcasts and other performances

10.358 While the provisions relating to plays are wide in that they cover a variety of artforms, they only apply to staged performances. They do not apply to other performances, including those which are recorded for inclusion in broadcast or dissemination by other means. It is particularly relevant that increasingly performances may be recorded before it is clear whether they will be broadcast or distributed over the Internet.

10.359 The broadcasting offence was originally created with cable broadcasters in mind. It was extended to terrestrial transmission in the 1986 Act, but broadcasts by the BBC and the old Independent Broadcasting Authority (which covered Channel 4, the ITV franchises and independent local radio) were initially exempt. This was premised on the notion that the nascent cable broadcasting industry was to be subject to a less regulated regime than terrestrial broadcasting.

10.360 The Broadcasting Act 1990 reversed this position, extending both the regulatory regime and the stirring up offences to all programme services, including radio broadcasts. From 1991 the Independent Television Commission and the Radio Authority, and subsequently Ofcom, regulated all terrestrial, satellite and cable broadcasts (other than, initially, those by the BBC). So, while from 1984 to 1990 regulation and criminal law were treated largely as alternatives, after 1990 they became complementary.

10.361 Although we are not aware of any prosecutions, there have certainly been cases where, because of failures of due diligence, material has been included in programme services (often by non-English language or religious broadcasters) that amounted to stirring up racial or religious hatred or hatred on grounds of sexual orientation. These include:

10.362 These cases have been dealt with as regulatory failures. We agree this will usually be the correct approach. That being so, we question whether the distinct provisions applying to broadcasters are necessary. It is worth noting that in Canada926 and New Zealand, 927inciting hatred in a broadcast is explicitly included in the core stirring up offence. Ireland, by contrast, has a separate offence, closely modelled on the British offence.928

10.363 In some respects, the broadcasting offences are more generous than the other dissemination offences. For instance, there is a defence for those who did not know and had no reason to suspect that the broadcast would be in circumstances in which hatred was likely to be stirred up; this is not available for other disseminators of material. However, were our proposed reformed test to be adopted there would in all cases be a burden on the prosecution to prove that the defendant knew or ought to have known that hatred was likely to be stirred up. The distinct protection offered to broadcasters under the existing legislation would no longer be needed.

10.364 Conversely, some of the defences that are available in respect of staged performances do not apply to broadcasts. In particular, the defence for “performers” and the requirement to consider the performance “as a whole” only apply to stage performances.

10.365 We do not see a logical basis for this. A performer in a television programme - or even a YouTube video - cannot necessarily be expected to know the context in which their performance will be used, any more than a theatre performer would (and arguably less, since recorded material may be used much later and in different circumstances to those envisaged when recorded). They may well be aware that the words they are using are threatening and abusive, if the part they are performing requires this. In general, a performer is entitled to rely on the director and producer(s) to ensure that the production is lawful.

10.366 Accordingly, we have concluded that while separate offences relating to performances and broadcasts are not necessary, the provisions in section 20(4) relating to the liability of performers (and excluding performers from general accessory liability) should be retained and applied to both reformed stirring up offences. We also consider that the requirement to consider the play “as a whole” when considering whether racial hatred929 is likely to be stirred up by a performance, should apply to any work.

10.367 There is one aspect of the specific offences we do not think should be retained. The core stirring up offences relate to words, conduct and material which is threatening, abusive or insulting; the offences relating to plays and broadcasts refer to a programme “involving” threatening (abusive or insulting) words, behaviour, images or sounds. On the face of it, this means that material might be considered threatening or abusive even though very little of the performance involved the use of threatening or abusive words or behaviour.

10.368 One can certainly imagine situations in which material was threatening overall, even though the threat was only a small part of the material. A threat at the conclusion of otherwise innocuous text can colour the whole of what has gone before. Conversely, there will often be circumstances in which, despite some representations of threats or abuse, the material taken as a whole is not at all threatening or abusive.

10.369 If our proposals to abolish the specific offences relating to plays and broadcasts were implemented, the “involving” test would no longer apply; the test would be whether the words, material or conduct (taken as a whole) were threatening or abusive. The offence would therefore be narrower than at present.

Recommendation 26.

10.370 We recommend that the separate stirring up offences relating to plays and broadcasts should be repealed.

10.371 We recommend that provision should be made in the reformed stirring up offences to ensure that performers are not treated as either accessories or principals to the reformed stirring up offences only by reason of taking part as a performer.

10.372 We recommend that the provisions relating to the liability of producers and directors of plays and programmes are repealed. Ordinary principles of primary and accessory liability should apply to those who stage plays containing material intended or likely to stir up hatred.

10.373 We recommend that the current provision that requires a play to be considered “as a whole” should be incorporated into the reformed stirring up offences and apply to words, material or behaviour included in any dramatic, literary, artistic or journalistic work, whether a play, article, or broadcast programme. This would apply both to consideration of whether a work was likely to stir up hatred and whether it was threatening or abusive.

Films and videos

10.374 In the consultation paper we noted that the existing offence of showing or distributing a recording in the Public Order Act 1986 can potentially be committed by distribution of material which has been certified for showing in cinemas or video distribution. We contrasted this with the explicit protection in the Criminal Justice and Immigration Act 2008 offences relating to “extreme pornography” which explicitly exclude words certified by the British Board of Film Classification. We provisionally proposed that unless intention to stir up hatred could be shown, no offence should be committed by distribution or showing of a film or video which had been certified by the BBFC or licensed for exhibition by a local authority.

10.375 A few respondents commented on this provisional proposal. One respondent suggested that “specific reliance on the BBFC disadvantages smaller or alternative film makers”. Other members of the public were concerned that this would give the BBFC too much of a role in deciding what is - and perhaps more significantly, what is not - acceptable:

I don't think work needs to specifically be classified by the BBFC as a defence.

The BBFC is not an approved or legitimate arbiter of truth and what is or is not offensive.

This puts the BBFC in too powerful of a position in that it becomes the complete arbiter of what is offensive and what is not - in effect it acts like a ministry of truth.

Video games

could make the law easier to understand for the public, police, and the judiciary. It could also ensure that minoritized groups are protected from forms of media that could encourage hatred against them, but do not clearly fall within the ambit of existing legislation (e.g., video games, as covered at paragraph 18.92).

10.381 The Hate Crime and Public Order (Scotland) Act 2021 refers to material as “anything that is capable of being looked at, read, watched or listened to, either directly or after conversion from data stored in another form”. Although broader, it is still possible that this definition would not encompass video games. The difficulty seems to be that those who create and distribute video games do not disseminate “material” that is capable of being looked at, read, watched or listened to; they create and distribute something which is capable of creating such material (and not merely converting it from one form into another).

10.382 It is important to be clear about the sort of material we have in mind. There are many video games which might include the generation of content portraying, say, racist or homophobic behaviour, including violence - just as films, television programmes or plays might include representations of such conduct. For instance, a video game set in Reconstruction-era southern states of the USA might include characters that engage in racist behaviour. Depending on how the game is played, these characters may have a more or less prominent role. Alternatively, players might well exhibit racist behaviour in an online game by - say - targeting black characters. The mere fact that a game is capable of generating racist (say) imagery or behaviour does not mean that the game itself is racist material.930

10.383 It is clear, however, that some hate groups have created and circulate video games glorifying racial or homophobic violence with a clear intention to stir up hatred. 931That is, racist or homophobic footage is not just one of several possible outcomes, it is the purpose of the game.

10.384 Because these generate new imagery, it is unlikely that they could constitute a “record from which visual images or sounds may ... be reproduced” under the existing law.

10.385 We have concluded that the offence of disseminating inflammatory hate material should extend to software which has as one of its purposes, the generation of inflammatory hate material where this is intended or likely to stir up hatred. The fact that it may be possible, within gameplay, to exhibit, for instance, racist or homophobic, behaviour would not be enough, but where this is the sole or dominant purpose of the software, this would be covered.

10.386 We have recommended elsewhere that films and video recordings that have been classified by the BBFC should be outside the offence. By extension, this should also apply to video games that have been classified by the Video Standards Council.

Dissemination via the internet

10.387 The stirring up offences do not explicitly cover those who post inflammatory material on the internet. In practice, however, the existing categories have proved flexible enough to accommodate material posted online. In R v Sheppard the Court of Appeal held that the expression “written material” includes articles in electronic form. We are satisfied the same would apply to the distribution of sound and video recordings online. However, in the consultation paper, we noted that a video clip streamed live would not be covered (although it would probably be covered by the “use of words or behaviour” offence). A consolidated offence of disseminating inflammatory hate material should encompass such material.

Platform liability

10.388 The current laws apply to those who make material available by hosting it on the Internet - this includes not only those who actually put the material online, but hosts such as webhosting services and social media companies.

10.389 The liability of platforms which host and transmit inflammatory hate material is currently governed by retained EU law, specifically the Electronic Commerce (EC Directive) Regulations 2002 and the Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010, which give effect to the E-Commerce Directive. The Directive encompasses two key principles. First, the "point of origin" principle, that the liability of “information society service providers” for online material is generally subject to the law where the provider is based, unless it is necessary and proportionate for some public interest objective, for a provider in another Member State to be subject to domestic law. Government policy is to remove the point of origin principle from UK legislation so that EEA online service providers would be liable under domestic laws to the same extent as a provider based in the UK or outside the EEA. Accordingly, the Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021 recently removed the point of origin principle from the stirring up offences relating to religious hatred and hatred on grounds of sexual orientation.932

10.390 The second principle of the E-Commerce Directive relates to intermediary liability, which regulates treatment of three classes of service provider: “mere conduits”, “caches” and “hosts”. A “mere conduit”, such as an internet service provider (ISP), is exempt if it does not initiate the transmission, select the recipient or select or modify the information contained. An example would be a broadband provider. A “cache” is exempt if it does not modify the information, complies with any conditions attached to having access to the information, and - upon having actual knowledge that the information at the initial source of the transmission has been removed or had access to it disabled, or that a court or administrative authority has ordered its removal or for access to be disabled - either removes it or disables access. We do not think that the activities of either mere conduits or caches should give rise to any criminal liability for stirring up hatred.

10.391 It is the third group, “hosts”, which is more problematic. Hosts include social media companies and website hosting services. Under the existing stirring up hatred offences, a “host” only incurs criminal liability if it knew when the material was provided that the material was threatening (or, for racial hatred, abusive or insulting) and intended (or in the case of racial hatred, likely) to stir up hatred; or upon obtaining “actual knowledge” of this, did not expeditiously remove the information or disable access. In principle, therefore, a social media company or website hosting company which fails to remove inflammatory hate material once it becomes aware of such material is committing an offence.

10.392 When we published our consultation paper, it was unclear whether provisions like those in the E-Commerce Directive would form part of any agreement on the future trade relationship between the UK and the EU. In the event, they did not. However, the Government has indicated that it is committed to upholding equivalent liability protections following Brexit.933

10.393 We asked a specific question about the liability of platforms. We asked

Consultation Question 43

Under what circumstances, if any, should online platforms such as social media companies be criminally liable for dissemination of unlawful material that they host?

If “actual knowledge” is retained as a requirement for platform liability, should this be the standard applied in other cases of dissemination of inflammatory material where no intention to stir up hatred can be shown?

10.394 Unlike most other questions on stirring up offences, opinion among individual respondents was fairly evenly divided on whether platforms should be liable. In general, those who supported platform liability favoured holding companies liable only when they had been notified and failed to take action in respect of unlawful material. Some favoured a more proactive requirement. Some members of the public expressed fears that platform liability would lead to platforms censoring lawful material out of an abundance of caution:

appropriate scrutiny.”

they should be treated in the same way as any other publisher. If they merely provide an open forum for opinion and debate, then no - they should not be liable.”

material unless they could not reasonably be expected to have detected such material.”

presuming that material is unlawful (where they are uncertain or don't fully understand the law), which would have a chilling effect on free speech.”

where they are anxious that it contravenes certain hate speech.”

10.395 Most organisational stakeholders did not provide a substantive response. Some felt platform liability needed consideration outside the hate crime review; others favoured a single standard for all dissemination. The Free Speech Union favoured intention as the test for all hate speech offences, so the issue of platform liability would rarely arise, and felt that "actual knowledge would be very much a second-best solution, but if it were adopted it clearly should be adopted across the board".

10.396 The Bar Council felt that consistency between online and offline dissemination was desirable and if this meant applying "actual knowledge" offline, this was acceptable.

10.397 Legal Feminist expressed concern that “shifting liability to the platform would force it to implement draconian procedures (we predict via algorithms due to volume of traffic) which would create censorship due to corporate self-preservation. Free speech would come second to business interests”.

10.398 The CPS made an important point:

Liability effectively creates a requirement that companies remove data in relation to which a complaint has been made and upheld. There is obvious benefit to this in reducing the dissemination of this type of material, but it may have an unintended consequence of making it harder to prosecute the original author of the material. Prosecutions under the legislation generally rely upon open source captures of the offending content and surrounding material. These captures are often obtained by the police weeks or months after the material is posted. If material is immediately removed, then content can often only be obtained via mutual legal assistance.934 As many of the biggest social media companies are based in the US, an application is often impossible in this type of case. Content which constitutes stirring up racial hatred will often be considered lawful speech in the US and subject to first amendment protections preventing applications being made in US courts for the required warrants.

10.399 They expressed the view that the position of social media hosts was very different from broadcasters, who choose and plan what material to put out.

10.400 Since we published our consultation paper, the Government has published its response to its Online Harms White Paper of April 2019, accompanied by a new White Paper in December 2020. A draft Online Safety Bill was published in May 2021. The proposed legislation covers internet services which allow users to upload and share content (“user-to-user services”) and search engines. The draft Bill would create a regulatory regime for these services under Ofcom. Companies would have a duty of care to understand the risk of harm to users of their services and to put in place appropriate measures to improve user safety. For most providers this would be to address illegal content and activity and to protect children. The largest providers

(“category 1 services”) would also be required to take action in respect of “legal but harmful” content. All companies would be required to have mechanisms in place to report content and to appeal takedown of content. Content published by a news publisher (such as a broadcaster or newspaper) on its website would be exempt.

10.401 The draft Bill distinguishes between priority illegal content and other illegal content. Priority illegal content would be (i) terrorism material, (ii) child sexual exploitation and abuse material, and (iii) other priority illegal material. The first two are defined in statute, the third would be governed by regulations. The government has indicated that “hate crime” would be included in its definition of priority illegal material.935

10.402 “User-to-user” providers would be under a duty to minimise the presence and dissemination of priority illegal content, and to take down other illegal content swiftly upon becoming aware of it. Search engines would be under a duty to operate services using systems and processes to minimise the risk of individuals encountering priority illegal content; and other illegal content “that the provider knows about”. Providers would therefore have a proactive duty in respect of priority illegal content, including unlawful hate material.

10.403 User-to-user and search services would have a duty to protect users’ right to freedom of expression within the law when deciding on, and implementing, safety policies and procedures. Category 1 user-to-user services would have additional duties in respect of “content of democratic importance” which would include content specifically intended to contribute to democratic political debate in the United Kingdom.

10.404 The Online Safety Bill thus envisages that the responsibility of user-to-user services as hosts of material would primarily be a matter of regulation. If the Online Safety Bill is enacted, we recommend that inflammatory hate material (see paragraph 10.335) should be classed as “priority illegal content” for the purposes of the Act.

10.405 However, the Online Safety Bill would not alter the existing criminal liability of providers where the current law potentially makes them liable. There are various statutes for which, in effect, the criminal law - coupled with the Electronic Commerce Regulations 2002 - operates on a “take down upon notice” basis. For instance, if material is uploaded to a hosting site - whether a webhosting service or a user-to-user service - which contains indecent images of children, the host is potentially criminally liable once it has “actual knowledge” of the material.936 A hosting service which receives a police notice under the Terrorism Act 2006 that material constitutes conduct falling within 2(2) of that Act is to be regarded as “endorsing” that material if it has not been blocked, removed or edited within two working days. 937The stirring up offences effectively create a “take down upon notice” regime for inflammatory hate material, because once a provider is aware that material it is hosting is unlawful, continued dissemination of that material by the provider can be an offence.

10.406 We do not think it is ideal to address the stirring up offences in isolation. The criminal liability of hosts for material which they make available on an ongoing basis would be better dealt with in the round. As we indicated in the consultation paper, there are arguments both for extending liability (for instance, to encourage proactive monitoring and because AI technology makes it possible to engage in proactive monitoring at a scale which human moderation could not); and arguments for restricting liability (for instance, because risk-averse providers might err on the side of caution with the result that lawful material would be removed; and because AI technology is far from perfect and may wrongly flag content). 938

10.407 However, we do have to assess whether the existing basis of liability would be satisfactory were our recommendations enacted. In practice, providers are only likely to be liable for racially inflammatory material at present, 939because of the requirement for intent in cases relating to religion and sexual orientation: even if a provider becomes aware of material that is likely to stir up religious hatred or hatred on grounds of sexual orientation, the fact that it continues to provide access is not proof of an intention on the part of the provider to stir up hatred.

10.408 If our proposals are implemented, social media companies could potentially be liable in respect of more material, since the “likely to” limb would extend - albeit with new protections - to a broader range of characteristics. Moreover, once a provider was seized with knowledge of the allegedly unlawful material, it would be hard for it to argue that it did not know and ought not to have known that the material was threatening or abusive and likely to stir up hatred.

10.409 In these circumstances, the risk of criminal sanctions creates a danger that platforms will be over-cautious in removing material once a complaint is made that material they are hosting amounts to inflammatory hate material.

10.410 That being so, we have concluded that if there is an adequate and appropriate regulatory scheme to address hosting of illegal content that includes inflammatory hate material, the negatives of such material attracting additional criminal liability outweigh the advantages. We are particularly conscious of concerns expressed by respondents that the risk of criminal penalties for distribution of third-party material could lead platforms to take an overly cautious approach in a way which could undermine freedom of expression.

10.411 Accordingly, we recommend that if the measures in the Online Safety Bill are enacted, the stirring up offences should not apply to social media companies and other platforms in respect of “user-to-user” content (except in the rare circumstances in which intent to stir up hatred on the part of the provider can be proved).

Other intermediaries
Knowledge and corporate liability

10.418 The legislation on stirring up offences explicitly envisages that they might be committed by non-natural persons.941 However, the statute does not say under what circumstances a company or other non-natural person will have the necessary fault. In the absence of such a provision, the courts will generally apply the “identification doctrine” that a company will only be criminally liable if one or more natural persons representing the company’s “directing mind and will” - usually a director or directors -had the requisite knowledge and/or intent.

10.419 Reliance on the identification doctrine could undermine the application of the stirring up offences to corporate bodies. For instance, in the event that a newspaper were to publish a column by a columnist which crossed the high threshold into stirring up hatred, we think it is right, in principle, that the publisher could be liable. It is unlikely, however, that anyone representing the publisher’s “directing mind and will” would have had the requisite knowledge, since the editor is ultimately responsible - and normally legally responsible 942- for what is published.

10.420 We think that in the absence of reform of corporate criminal liability generally, the legislation should make explicit provision for how the tests should apply to corporations.

10.421 This is something which rarely happens. A rare example is the Specialist Printing Equipment and Materials (Offences) Act 2015, which criminalises the supply of specialist printing equipment where the person knows it is to be used in criminal conduct. Section 3(1) of that Act states that “a body (whether corporate or not) is to be treated as knowing a fact about a supply of equipment if a person who has responsibility within the body for the supply knows of the fact”.

10.422 Where a charge relates to the supply of inflammatory hate material, we consider that this could be an appropriate basis on which to hold a supplier responsible for an act of dissemination. That is, a company would only be responsible if a person within it who was responsible for the supply of material, intended to stir up hatred thereby, or knew or ought to have known that the material was threatening or abusive and knew or ought to have known that it was likely to stir up hatred.

10.423 In respect of the publication of material, the draft Online Safety Bill refers to a “person who has editorial or equivalent responsibility for the material, including responsibility for how it is presented and the decision to publish it”. We think a similar definition could be a suitable basis on which to attribute responsibility to a publisher. For instance, in the example above, we think it should be possible to attribute liability to a publisher if the editor of the publication had the requisite fault.

Recommendation 27.

10.424 We recommend that the offences relating to dissemination of material intended or likely to stir up hatred should be consolidated in a single offence of disseminating inflammatory hate material.

10.425 Where intent to stir up hatred could not be proved, the prosecution would be required to show that the distributor had knowledge - actual or (in the case of a nonnatural person) imputed - of the contents of the material and knew, or ought to have known, that the material was threatening or abusive and likely to stir up hatred.

10.426 We recommend that no offence would be committed by the exhibition or distribution of a film or video recording which had been granted a certificate by the British Board of Film Classification (or the local authority in whose area the film was shown).

10.427 We recommend that the protection for performers in plays should be retained and apply to all performers.

10.428 We recommend that the requirement to consider a play “as a whole” should be retained and apply to all material.

10.429 We recommend that, if the draft Online Safety Bill becomes law, inflammatory hate material should be included as “priority illegal content”, and the stirring up offences should not apply to social media companies and other platforms in respect of “user-to-user” content unless intent to stir up hatred on the part of the provider can be proved.

Possession of inflammatory hate material

10.430 We also support the implied abolition of ‘possession’ offences currently provided for at s.23 and s.29G (and if the Commission did not intend to imply this at paragraphs 18.88 to 18.92, we would recommend this reform in any case). The conduct element should always entail actual dissemination to others, and should not capture mere ‘possession with intent to disseminate.’ This is because inflammatory material is similar to Responses to the consultation question relating to inflammatory material raised an important point of law which had not been considered in the consultation paper. This concerns the offences in sections 23 and 29G relating to the possession of inflammatory material.

10.431 Index on Censorship said:

defamatory material, in that the harm (whatever it may be) only occurs when the material is disseminated/published. Inflammatory material that is not disseminated is inert and does not cause harm. It should not, therefore, be criminalised.

Such a reform would also deliver a tangential but important protection to journalists and academics who research radicalisation and extremism, and who may come into possession of inflammatory material during the course of their work. If an ‘intent to disseminate’ offence is retained, then it must contain a clear exception for such possession for academic, journalistic and other public interest activities.

10.432 We considered whether the possession offence should be retained. While it is correct to say that the harm only crystallises at the point at which material is received, abolishing the offence would, we believe, hamper the ability of law enforcement agencies to take pre-emptive action against extremists. A police force, responding through the National Police Chiefs Council, said that the possession offences were something “we would not be happy to lose”.

10.433 The stirring up offences are in many ways comparable to an inchoate offence such as encouraging crime. Possession offences are a step further inchoate.

10.434 Ashworth and Horder suggest that “as with the fault element for attempt and conspiracy, the more remote [possession] offences should be confined to cases of proven intention that the substantive crime be committed”.943 We endorsed this “remoteness principle” in our consultation paper on conspiracy and attempts.944

10.435 In general, the criminal law prohibits attempts, but not preparation. To be convicted of attempting to commit an offence, a person must do something “more than merely preparatory” to the commission of the offence.945 (There are some possession offences, for instance in relation to possession of drugs with intent to supply, terrorist material or indecent images of children, which do seek thereby to discourage the commission of substantive offences, but these tend to be limited to the commission of very serious offences.)

10.436 Merely possessing material because a person intends to use it to stir up hatred is preparatory. In some cases, for instance where two people had agreed to print and distribute material, it would be possible to charge a conspiracy to commit the dissemination offence prior to distribution. However, in other circumstances this would not be possible - for instance where the person was acting alone.

10.437 We have concluded that it is right to retain the possession offence. To do otherwise would mean that where law enforcement authorities had prior knowledge of planned dissemination, they would be unable to take action until the material had been distributed.

Recommendation 28.

10.445 We recommend that the offences relating to possession of racially inflammatory and inflammatory material should be replaced with an offence of possession of inflammatory material with intent to stir up hatred. This would be restricted to material which was:

PROTECTIONS AND EXCLUSIONS

Freedom of Speech protections

10.446 In the consultation paper we discussed the ‘freedom of expression’ clauses in sections 29J and 29JA of the Public Order Act 1986. These were added to the legislation creating the offences of stirring up religious hatred and hatred on grounds of sexual orientation as it went through Parliament, against the wishes of the then Government. In the case of the clauses relating to sexual orientation, 946the Government subsequently sought to remove them in the Coroners and Justice Bill, but backed down in the face of continued resistance from the House of Lords.

Consultation

10.447 We asked consultees the following question:

Consultation Question 52

We provisionally propose that the current protections in sections 29J and 29JA apply to the new offence of stirring up hatred.

Do consultees agree?

We invite consultees’ views on whether similar protections should be given in respect of transgender identity, disability and sex or gender, and what these should cover.

10.448 Again, a statistical analysis of responses would be misleading. Almost all of those who responded “no” to the first question and explained their response demonstrated that it was not the protections they were rejecting, but hate crime laws generally or our proposed extension of them. Very few respondents who said “no” were actually expressing opposition to the freedom of expression clauses.

Are ‘freedom of expression’ clauses necessary?

10.449 Although the majority of respondents supported retention of the ‘freedom of expression’ clauses, a small number were opposed. These included Stonewall and the Gender Identity Research and Education Service (GIRES). Stonewall said:

These are avoidance of doubt clauses which do not substantively change the nature of legislation. Should these clauses not exist, this would not impact how the law would operate. Stonewall would strongly query whether such a clause is needed in hate crime legislation, particularly as the European Convention of Human Rights and Human Rights Act already require that freedom of expression be protected, and that any interpretation of national legislation should be compliant with these instruments...

The Commission argues that such provisions are necessary to prevent a ‘chilling effect’ on free speech in British society. However, we have seen just one successful prosecution of stirring up on the grounds of sexual orientation since the creation of this offence and accompanying ‘Waddington amendment’ [190] a decade ago, despite the high volumes of threatening anti-LGBT+ communications that are sent. This strongly suggests the existing legal framework may, conversely, not be operating in a way that affords effective protection against attempts to stir up hatred - something the Commission should consider carefully when deciding how it should be improved. It is also important to note that provisions under stirring up racial hatred have existed without a free speech clause for over a decade.

If the Commission decide that there should be a caveat in law, this should be a singular, unified general protection which applies equally to all characteristics, and does not set out a non-exhaustive list of behaviours that do not constitute a criminal offence. This will also help future-proof the law, by ensuring that in future the law is not a vestige of time and location-specific discussions that may have since moved on.

10.450 We note that in Northern Ireland, Judge Marrinan’s recent review of hate crime legislation concluded that similar provisions should not be included in his proposed replacement of Northern Ireland’s stirring up laws. Instead, he proposed

any new hate crime legislation should have clarity in the setting of the general purpose and intent behind the legislation . the right to freedom of expression should be explicitly recognised in amended legislation. Such a provision should state that any stirring up offences should be interpreted compatibly with ECHR rights. Such a provision should reflect the real concerns that some religious groups and organisations hold in that discussion of a wide range of issues associated with religious belief, including sexual matters, might fall foul of any reformed hate law.947

The absence of a uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions broadens the Contracting States' margin of appreciation when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or religion.

10.458 Nor would it be satisfactory to rely on prosecutorial discretion, even if the prosecution clearly laid out in advance how this would be exercised. As we said in our recent report Modernising Communications Offences:

As a way of restricting the scope of [an] offence, guidance and discretion are a “last resort”; in general, we should avoid criminalising conduct that does not warrant criminalisation rather than relying on guidance and discretion to exempt such conduct.951

10.459 Even if the application of the law in such circumstances were certain, we would be concerned about a chilling effect. There was extensive evidence in the responses to our consultation that people routinely overestimate what the law criminalises. In these circumstances we feel a clear statement on the face of the legislation as to what the law does not prohibit is of value. The then Scottish Justice Secretary said, in relation to the Hate Crime and Public Order Bill, “freedom of expression provisions are an important element of helping people understand the boundaries of the stirring up hatred offences within the Bill. Such provisions have a key role to play in providing clarity and reassurance as to what will continue to be behaviour that is not criminal once the offences in the legislation are in force”.952

10.460 Finally, were the existing freedom of expression clauses not retained in future stirring up legislation, there is a risk that courts would interpret their removal as signifying an intention by Parliament that the law should apply differently in future, and implicitly that there should be a reduced protection for freedom of expression.

The role of the free speech clauses

10.461 It is clear that some forms of expression - including the deliberate incitement of racial hatred - fall outside the protection of Article 10. However, there will be some forms of expression that come within the protection of Article 10, but where states may legitimately interfere with that freedom.

10.462 This informs our views of what the freedom of expression clauses ought to cover. Our proposed position is that the law should prohibit (i) deliberate incitement of hatred and (ii) the use of threatening or abusive words or behaviour likely to incite hatred. That is, in laying down what the limits of freedom of expression should lie, we are saying that it should be material intended to stir up hatred (which will likely fall outside Article 10), and, for material which does engage the right to freedom of speech, threatening or abusive material likely to stir up hatred.

10.463 There is nothing new in this. Indeed, it is strikingly similar to the task which Lord Reid, In Brutus v Cozens, argued Parliament had done in legislating the Public Order Act 1936:

Parliament had to solve the difficult question of how far freedom of speech or behaviour must be limited in the general public interest. It would have been going much too far to prohibit all speech or conduct likely to occasion a breach of the peace ... Therefore, vigorous and it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any one of three limits. It must not be threatening. It must not be abusive. It must not be insulting. Free speech is not impaired by ruling them out.

10.472 The existing freedom of expression clauses operate differently between the protection for free speech in respect of religion and free speech in respect of sexual orientation.

10.473 In relation to religion, section 29J provides that

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

10.474 On the face of it, therefore, any speech or material which falls within the protected category is not covered by the offence, even if it is threatening and intended to stir up hatred. It thus represents a ‘carve-out’ from the offence.

10.475 By contrast, section 29JA states that

In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.

In this Part, for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred.

10.476 Section 29JA is not, therefore a ‘carve-out’ but an ‘avoidance of doubt’ clause.

10.477 As a general principle, we consider ‘avoidance of doubt’ clauses to be undesirable: they do not add to the substantive law, and it will generally be preferable to draft legislation so as to avoid ambiguity. However, in this case we feel that there is justification for an ‘avoidance of doubt’ clause. The ambiguity does not arise from the legislation itself but from the perception that criticism of sexual conduct or practices, or criticism of same-sex marriage - which might be taken by some to be homophobic - is thereby threatening or intended to stir up hatred. We think there is an even greater risk of such material being taken to be abusive or likely to stir up hatred, and therefore the case for a clause would be even greater if our proposals on the test for stirring up hatred are accepted. On balance, our view is in this context ‘avoidance of doubt’ clauses are preferable to a ‘carve-out’. A carve out means that hate material can become legal if it can be shoehorned into the exception.

10.478 We note that when the religious hatred offence was brought into Scottish law by the Hate Crime and Public Order (Scotland) Act 2021, the freedom of expression provisions were drafted as ‘avoidance of doubt’ provisions. This included the protections in respect of religion which, in the former Scottish offence of threatening communications intended to stir up religion, had been drafted, as in England and Wales, as a carve-out.956

10.479 The Scottish legislation provides that material within the protected categories shall not of itself be taken to be threatening or abusive. The legislation in England and Wales goes further in that that material shall not of itself be taken to be threatening or intended to stir up hatred. In view of our position that the freedom of expression clauses are necessary because some classes of conduct or material might be wrongly assumed to be unlawful, we think that this is as likely to manifest in an assumption that criticism of, say, a religion or sexual orientation, amounts to stirring up hatred as an assumption that it is threatening or abusive. A person is unlikely to think that, say, criticising same-sex marriage in moderate terms, is thereby threatening or abusive. However, many individual members of the public expressed concern that certain viewpoints were being characterised as racist, homophobic, transphobic or misogynist, even when expressed in moderate terms, and strongly rejected the implication of hatred implicit in these descriptions.

"Homophobic" and "transphobic " are commonly used of anyone who questions the rightness/morality of such individuals - even when this is done in calm/rational/reasonable way that are made with no malice. ... they have come into common use and the very words themselves suggest hate on the part of the perceived offender.

Sexism has become too broadly used of a term, and non-sexist ideas and actions are wrongly being labelled as such.

10.480 This view was echoed by Professor Kathleen Stock:

Stonewall instructs member organisations of its Diversity Champions Scheme [.] that transphobia is defined as “The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it”. In other words, since I and other academics, as well as thousands of members of the general public, reject the importance of gender identity for determining womanhood or manhood, my views are counted as “transphobic” and so hateful.

10.481 We therefore conclude that the ‘avoidance of doubt’ protections we discuss below should also provide that the class of material in question should not of itself be taken to be intended or likely to stir up hatred.

The freedom of expression clauses for religion and sexual orientation

10.482 There was considerable support from members of the public for retaining the protections in section 29J and 29JA - especially the provision in relation to marriage in 29JA(2)

The free-speech protections in sections 29J and 29JA are essential. They should certainly be included in any new offence of stirring up hatred.

I believe there should be special clauses stating that it is NOT a hate crime to uphold traditional, Biblical marriage is between one man and one woman.957

They should remain. There is a big difference between public reasonable debate on controversial issues such as religion, gender etc. for which there are many differing viewpoints, and generating malicious action or derogatory language deliberately.

10.483 For the reasons discussed above, we have concluded that the existing classes of conduct covered by the current protection for freedom of expression in relation to religion should be retained, but they should be recast as an ‘avoidance of doubt’ provision rather than a carve-out.

10.484 The protection relating to religion in Scotland has removed “abuse” from the list in section 29. This is perhaps because of the superficial contradiction in extending the offence to cover “threatening or abusive” behaviour while exempting “expressions of antipathy, dislike, ridicule, insult or abuse”. However, the two are not actually in conflict. The free speech clause in 29J only covers abuse of “particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents”. It is perfectly coherent to extend the offence to cover abuse targeted at a group defined by religious beliefs, while holding that abuse of that religion or those beliefs is not sufficient for the purposes of the offence.

10.485 As long ago as 1985, in our report on offences against Religion and Public Worship, we noted that

Ridicule has for long been an acceptable means of focussing attention upon a particular aspect of religious practice or dogma ... and in that context use of abuse or insults may well be a legitimate means of expressing a point of view upon the matter at issue. The imposition of criminal penalties upon such abuse or insults becomes, in our view, peculiarly difficult to defend in the context of a “plural” or multi-racial, multi-religious society.958

10.486 Accordingly, we conclude that protection of discussion, criticism or expressions of antipathy, dislike, ridicule, insult and abuse targeted at particular religions (or, as in Scotland, at religion in general) and the beliefs and practices of their adherents, should continue to be protected. So should proselytising and urging adherents of a religion to cease practising it.

10.487 We are satisfied that the classes of conduct covered by the ‘avoidance of doubt’ provisions in relation to sexual orientation reflect those that the majority of respondents generally wished to see protected.

Freedom of expression: race, countries and governments

10.488 We asked whether there should be protection along the lines of section 29J to cover racial hatred. We suggested in the consultation paper that this might cover “the discussion or criticism of immigration, asylum or citizenship policy [and] criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular countries or their governments”.

10.489 Legal stakeholders, including the Magistrates Association, Association of Police and Crime Commissioners, National Police Chiefs Council and British Transport Police supported provision to cover the racial hatred offence.

10.490 Only a few personal responses from members of the public focused on this question.

No. Race is qualitatively different from religion and sexual orientation. Race is an inherited trait and whilst some argue that sexual orientation is given at birth, science is far from conclusive on this point.

Racial hatred laws don't need to change, but the police and judiciary need proper training to ensure they are applied properly.

10.491 National Secular Society drew attention to the current discrepancy which means that section 29J does not apply where the group in question is an ethnoreligious group and the charge is one of racial hatred:

This means that robust criticism of certain religious or cultural practices, including non-stun animal slaughter, infant male circumcision, and the wearing of swords in public, could potentially be charged under racial hatred offences despite being protected under section 29J of the POA. As the Law Commission points out, this potentially results in the absurdity of being able to criticise non-stun slaughter for halal meat, but not for kosher meat, without fear of prosecution.

10.492 The Evangelical Alliance opposed this suggestion:

While there are doctrinal debates involved on differences in religious belief, as well as on sexual orientation and gender identity, we know of no legitimate religious belief that justifies criticism or discrimination on the grounds of race. We believe that, as in wider equalities legislation, there should be far fewer exemptions permitting discrimination on grounds of race than other protected characteristics which are more contested fields in modern British society.

10.493 London Borough of Tower Hamlets responded “No, this will allow people to defend their racism as their freedom of speech.”

10.494 Index on Censorship was very supportive of new protections to cover the racial hatred offence, suggesting that

the failure to include similar protections in the racial hatred offence was not by design, since it was the first offence. Rather, legislators were [later] able to use their experience to foresee the consequences of future hate crime legislation better, and thus chose to include the free speech protections in both of the later offences.

Analysis

10.495 As originally legislated, the racial hatred offence referred to “hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins”. There could have been no possibility of the racial hatred offences being seen as liable to be committed by criticism - or for that matter ridicule, insult or abuse - of particular countries or their governments.

10.496 However, the words “in Great Britain” were removed by section 37 of the Antiterrorism, Crime and Security Act 2001, passed in the wake of the 9/11 attacks on the United States. With the removal of those words, the position is less clear. This is especially so given that in English, terms referring to a group defined by nationality -such as “the French” or “the Germans” - can be, and frequently are, used as a metonym for a country or its government.

10.497 The existing protection for freedom of expression in relation to religion in section 29J refers to “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions”. We consider that countries and their governments, like religions, can legitimately be expected to be the targets of ridicule, insult and abuse. In Karata§ v Turkey, the European Court of Human Rights held that “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician”.959

10.498 We are mindful that the International Holocaust Remembrance Alliance definition of antisemitism - which was adopted by the UK Government in December 2016 -provides that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic”. Moreover, criticism of Israel - even where it is a manifestation of underlying antisemitism - would not of itself amount to an offence of stirring up hatred against either Jews or Israelis as a group.

10.499 Section 29J applies to religious practices. There is no similar exception for cultural practices which do not have their roots in a religious or philosophical belief. As we noted in the consultation paper, one of the purposes of the free speech clauses is to make clear that the offences apply to hatred of people, not to criticism of behaviour and practices.

10.500 We think that criticism of particular countries and their governments, and criticism of cultural practices, are both areas which might result in an accusation of racism (whether or not in bad faith). Whether or not this would result in complaints of a criminal offence having been committed, there is a risk that people would interpret the stirring up racial hatred offence as potentially extending to such allegedly racist conduct and self-censor accordingly. We therefore conclude that the current protections applying to discussion and criticism of religious practices should be extended to cover cultural practices and an ‘avoidance of doubt’ provision should be introduced for discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of countries and their governments.

Freedom of expression: gender identity

10.501 Among responses on whether there should be freedom of expression protections to cover any additional characteristics covered by the stirring up offences, by far the majority related to gender identity. We have already noted how many people responded “sex, not gender” or similar. A large number drew on wording suggested by the Christian Institute to say that any offence covering transgender identity must explicitly protect using a person’s birth name and pronoun, saying that someone born a woman is not a man and vice versa and saying that there are only two sexes. However, similar sentiments were also reflected in many other responses which were not following the Christian Institute specimen responses.

10.502 We have already referred to the recent judgment in Forstater v CDG Europe. Forstater established that the claimant’s “gender critical” beliefs were “worthy of respect in democratic society”.960

10.503 Moreover, the Employment Appeal Tribunal held that the first tribunal had erred in

imposing a requirement on the Claimant to refer to a trans woman as a woman to avoid harassment. In the absence of any reference to specific circumstances in which harassment might arise, this is, in effect, a blanket restriction on the Claimant’s right to freedom of expression insofar as they relate to her beliefs...

Whilst the Claimant’s belief, and her expression of them by refusing to refer to a trans person by their preferred pronoun, or by refusing to accept that a person is of the acquired gender stated on a GRC, could [emphasis added] amount to unlawful harassment in some circumstances, it would not always have that effect. In our judgment, it is not open to the Tribunal to impose in effect a blanket restriction on a person not to express those views irrespective of those circumstances.

10.504 The court held that it was particularly relevant that the claim that sex is binary reflects the current law of England and Wales.961

10.505 We take from this that “gender critical” views clearly fall within the protection of the right to freedom of expression. This would extend to the use of language which expresses a person’s ‘gender critical’ views, such as their use of pronouns. While an interference with a right to express such views could be justified, for instance if it amounted to unlawful harassment, it would not be regardless of circumstance.

10.506 Applied by analogy to the stirring up offences, while the law may interfere with the right to express gender critical views where they amount to deliberate incitement of hatred, or are threatening or abusive and likely to stir up hatred - a blanket restriction on the expression of gender critical views would likely be in breach of Articles 9 and 10, because it would be an unnecessary and disproportionate interference with the rights to hold and express those protected beliefs. Moreover, where - as with discussions on reform of the Gender Recognition Act 2004 - the expression was a contribution on a matter of political debate - the scope for interference with the right would be limited.

10.507 Assuming, therefore, that the mere expression of gender critical views is lawful and protected under international human rights obligations, is there a need for separate provisions along the lines of section 29J? Stonewall 962and GIRES argue that it is not necessary. We disagree with Stonewall’s view that the freedom of expression clauses are unnecessary.

10.508 GIRES said:

We disagree with the suggestion that trans rights are up for debate, or that people who express insulting or hateful views about trans people should be protected from prosecution under hate crime legislation under sections 29J and 29JA. We disagree with Professor Stock’s comment that efforts to combat transphobia are intended to censor “different views, even when they are expressed by legitimate scholars whose views are not grounded in hatred, bigotry, prejudice or hostility, but are based on legitimately different value judgments, reasoning and analysis, and form part of mainstream academic research”. Many of the views she describes are not based on any legitimate empirical research and can only be based on a fear or ignorance about trans people. In other words, we hold that “different value judgements” here amounts to a disdain for the personhood and personal freedom of trans and gender diverse people. We think it would be irresponsible to afford legal protections to people disseminating such views, whatever qualifications they may hold... We think it would be harmful to afford legal protection to people who engage in ... “the discussion or criticism of gender reassignment; treatment for gender dysphoria; provision of and access to single-sex facilities and activities” because this criticism effectively vilifies and dehumanises transgender people and encourages the public to do the same.

10.509 We do not agree with GIRES that such discussion necessarily amounts to “vilification” or “dehumanises” trans people, still less that it encourages others to do so. Indeed, we think that characterising it as GIRES does demonstrates the risk that without explicit protection, such discourse - which has been recognised as protected speech - risks being perceived, reported, and potentially investigated as hate speech.

10.510 In a recent editorial, the Observer newspaper said:

The belief that the patriarchal oppression of women is grounded partly in their biological sex, not just the social expression of gender, and that women therefore have the right to certain single-sex spaces and to organise on the basis of biological sex if they so wish, represents a long-standing strand of feminist thinking. Other feminists disagree, believing that gender identity supersedes biological sex altogether.

Both are legitimate perspectives that deserve to be heard in a democratic society. Both can be expressed without resulting in the abuse, harassment and discrimination of trans people or women. Being able to talk about these alternative perspectives goes to the heart of resolving important questions about how we structure society. They include: whether it is right that the law permits the provision of single-sex spaces and services; whether official government data, such as the census, should record a person’s biological sex as well as gender identity; whether women have the right to request that intimate medical examinations or searches are undertaken by someone who is female; what are the appropriate safeguards in the medical treatment of children with gender dysphoria; and whether it is legitimate to exclude those who have been through male puberty from competing in women’s sport.

10.511 We agree that such issues are legitimate issues of debate. Moreover, they represent areas of political controversy where the European Court of Human Rights applies particularly strict scrutiny towards any interference with the right to freedom of expression. A measure which prima facie criminalised such discussions, even if it were applied in such a way as to avoid doing so, might be held to be in breach of the right to freedom of expression under Article 10.

10.512 Moreover, the rulings in Miller and Forstater have now made it clear that the expression of “gender critical” views is protected under human rights laws. The issue, therefore, is not whether such expression should be protected, it is whether the stirring up offences would require a provision to make clear it is protected.

10.513 We have concluded that it would. There have now been several cases in which legal authorities have wrongly applied the law in the context of the expression of gender critical views - including the first-tier Tribunal in Forstater, Humberside Police in Miller, the magistrates’ court in Scottow, 963and the CPS in Yardley. 964While the rulings in

Forstater and Miller may have provided some legal certainty, we conclude that were the stirring up offences to be extended to cover gender identity without an explicit freedom of expression clause, there is a very real risk of the law being misapplied.

10.514 In the consultation paper, we also drew attention to the findings of the court in Miller about the nature of the ongoing debate about trans rights. It is not hard to imagine that without such protection, activists would seek to test the limits of the extended offence.

10.515 Having concluded that an ‘avoidance of doubt’ provision is needed, the more difficult question is what this should cover. Stonewall urged that it should be at a level of generality. We agree that it would not be appropriate to provide a ‘shopping list’ of topics such as that in the Observer editorial. Apart from other considerations, such a list could quite quickly become out of date as new issues entered the political debate.

10.516 In the consultation paper, we suggested “the discussion or criticism of gender reassignment; treatment for gender dysphoria; provision of and access to single-sex facilities and activities”.

10.517 Respondents, however, generally highlighted two issues: the expression of gender critical views and concerns about “deadnaming” and “misgendering”, neither of which was in our suggested provision.

10.518 We think that “the view that sex is binary and immutable, and the use of language which expresses this” might be suitable for an avoidance of doubt provision - neither of these, of itself, necessarily amounts to threatening or abusive conduct, and nor is either, of itself, likely to stir up hatred.

10.519 Nonetheless, we would not want to give the impression that those with gender critical views can ‘misgender’ trans persons with impunity. As the appeal tribunal in Forstater noted, the indiscriminate use of a person’s birth name or pronouns could, in certain circumstances, amount to discrimination or harassment. Equally, there may be circumstances where the manner in which gender critical views were expressed, and the intention of the speaker, meant that the line was crossed into stirring up transphobic hatred.

Freedom of expression: disability

10.520 In the consultation paper, we tentatively suggested possible freedom of expression protections that might apply to sex/gender, gender identity, and race. We did not make a suggestion in relation to disability.

10.521 Since publication of the consultation paper, the Hate Crime and Public Order (Scotland) Act 2021 has been passed which provides that behaviour or material is not to be taken as threatening or abusive solely on the basis that it involves discussion or criticism of matters relating to disability. 965For the reasons discussed above, we are not convinced this provides sufficient clarity as to the scope of the offence. However, we have found it challenging to articulate those matters which should be included in a free speech protection clause in relation to disability.

10.522 In their response, Dimensions, a charity supporting people with learning difficulties, highlighted two areas where matters of legitimate debate risk being wrongly construed as reflecting, or amounting to incitement of, hatred, stating:

We recognise that there are some contentious topics around which speech will need to be protected, this includes fertility rights and discussions of state welfare provision.

10.523 We do not make recommendations about freedom of expression provisions in respect of disability, because of the low number of responses we received which considered the possible content of such provisions. The government may wish to consider the need for such provisions if stirring up offences are created for disability. Given the low number of responses we received which touched on this particular issue, we make no recommendation on the content of any ‘avoidance of doubt’ provision in respect of disability.

Freedom of expression: sex/gender

10.524 We have concluded that the stirring up offences should be extended to cover the stirring up of hatred on grounds of sex.

10.525 Although we asked in Consultation Question 53 for views on whether there should be new freedom of expression protections in respect of sex or gender, no responses specifically addressed this. A few responded in general terms expressing support for protections in respect of all characteristics covered.

10.526 As noted above, a large number of responses felt that the characteristic protected should be sex, but not gender.

10.527 The Free Speech Union drew our attention to the case of the book Moi les hommes, je les deteste (I Hate Men) by Pauline Harmange:

To take a recent French cause celebre, if sex should become a protected characteristic for hate speech purposes (which admittedly we would not support), it should not be automatically criminal in this country to write a book such as Pauline Harmange’s Moi Les Hommes, Je Les Deteste.

10.528 We considered whether Moi les hommes, Je les deteste could potentially be caught by an extended stirring up offence. When the book was published in France, a special adviser to the French Minister for Gender Equality reportedly wrote to the book’s publishers saying that the book was an incitement to hatred against a group on account of their gender, contrary to the law on freedom of the press, and that if it were not withdrawn from sale, he would be obliged to transmit the matter to the prosecutor for legal proceedings.966

Recommendation 29.

10.534 We recommend that ‘freedom of expression’ provisions should be retained in respect of religion and sexual orientation. We recommend that these and any new provisions should be in the form of ‘avoidance of doubt’ clauses, along the lines of section 29JA of the Public Order Act 1986, rather than the ‘carve out’ approach found in section 29J of the Act. These ‘avoidance of doubt’ clauses should reflect our proposed test for the stirring up offences. That is, material that falls within the particular categories should not, of itself, be taken to be threatening or abusive, or intended or likely to stir up hatred.

10.535 We recommend that the protection in respect of religion should continue to cover discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

10.536 We recommend that the protection in respect of sexual orientation should continue to cover the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct, and any discussion or criticism of marriage which concerns the sex of the parties to marriage.

10.537 We recommend that the existing protection for discussion and criticism of religious practices should be extended to cover cultural practices.

10.538 We recommend that a new protection should be introduced for discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of countries and their governments; and for discussion and criticism of policy relating to immigration, citizenship and asylum.

10.539 We recommend that in extending the stirring up offences to cover hatred towards trans or gender diverse people, a new protection should be introduced for view that sex is binary and immutable, and the use of language which expresses this.

Other Exclusions

10.540 Sections 26 and 29K of the Public Order Act 1986 exempt from the stirring up offences

a court or tribunal exercising judicial authority.

Consultation

10.541 We asked consultees the following question:

Consultation Question 55

We invite consultees’ views on whether the current exemptions for reports of Parliamentary and court proceedings should be maintained in a new offence. Further, we invite views as to whether there are any additional categories of publication which should enjoy full or partial exemption from the offence, such as fair and accurate reports of local government meetings or peer reviewed material in a scientific or academic journal.

10.542 A number of suggestions were made, some of which we discuss below after discussion of the existing exemptions for parliamentary and judicial proceedings. Several respondents suggested an exemption for reporting. Given that our conclusions on this suggestion have implications for whether and how other categories should be protected, we discuss this suggestion first.

Journalism and reporting

10.543 In October 2020, shortly after publication of our consultation paper, there was considerable public attention after it emerged that Darren Grimes, an activist and commentator, was being investigated by the Metropolitan Police over comments made by the historian David Starkey in an interview which Grimes had hosted, and put on his YouTube channel, in July 2020.

10.544 Although the interview was the subject of a great deal of controversy when it was broadcast in July 2020, it was not until October that it emerged that both Darren Grimes and David Starkey were being investigated following complaints that had been made.

10.545 The Free Speech Union drew attention to the investigation of Darren Grimes in their response to the consultation:

In October 2020 Darren Grimes, the YouTube commentator, was threatened with arrest and required to attend a police interview for not pulling, or editing, an interview he ran with Dr David Starkey when the latter made a now notorious comment about slavery.[212] It is our view that potentially criminalising a journalist not for what he or she says, but merely for passing on what others say to him or her in live interviews, is utterly disproportionate and a serious interference with the freedom of the Press.

The public are, in our view, quite capable of making up their own mind about the quality of Dr Starkey’s words, and should be allowed to do so without the law requiring them to be withheld from them.

We would add that the defence of innocent dissemination proposed in Paras.18.94 -18.100 would not cover the situations just outlined, since it is essentially limited to those who have no reason to know the nature of what they reproduce. The essence of the journalist’s defence which we would put forward is that it must go further: a bona fide journalist must be entitled to report on unsavoury speech despite knowing of its nature, and indeed because it is in the public interest that the public be informed of it in detail.

10.546 Several individual responses from members of the public also mentioned the Grimes case in responses to this and other questions in the consultation:

Would this [our provisional proposals on ‘innocent dissemination’] have meant that Darren Grimes would have continued to be investigated? It must not be used to harass a broadcaster or Youtuber whose guest makes inflammatory statements.

Look no further than the Darren Grimes case - Mr Grimes was investigated by Police for doing no more than asking a question in an interview

I do not trust the police or the CPS to act in a sensible or even-handed manner. The recent case involving David Starkey and Darren Grimes goes to show that when you give people power to police speech they feel compelled to exercise it and not for the benefit of the average person. Nor is it any comfort that, ultimately, no action was taken against these individuals. The fact they were questioned and in danger of being prosecuted was too much.

10.547 The Grimes case was also cited with concern by the Society of Editors in their response. In October 2020, they had expressed concern over the police’s action, saying:

the Society is deeply concerned by the threat such an investigation poses to free speech and the chilling effect it could have on the media’s ability to interview controversial figures. While it is right that journalists have a responsibility to robustly question comments that may be considered inaccurate or deeply offensive, it is wrong that the police should seek to hold a journalist accountable for the remarks of another.968

10.548 One police force urged clarification

of the role of broadcasters and journalists within any new offences, so that the law is clear and the police are not placed into a position of policing legitimate debate on the basis that populism does not support a particular view. The Darren Grimes / David Starkey investigation is a case in point. Such lack of clarity causes issues of impartiality for the police on matters of political discourse.

10.549 Concern was also expressed publicly at the time by a number of commentators including The Times969, a former Director of Public Prosecutions, 970and a former Home Secretary and a former Leader of the Liberal Democrats.971

10.550 Several personal responses proposed that reporting should be exempt from the stirring up offences:

Newspaper and other media reports which maintain an objective level of reporting and do not lend any support to views of hate which have an intent to cause harm should also be exempted.

Freedom of speech should allow for factual reporting, whether through mainstream media or social media, of all events of public interest

Yes, it's important to allow reasonable quotative references... So not just exempting reporting but fair and accurate discussion and explanation of hate-speech itself.

Full exemption for any accurate recording/reporting of facts such as reporting in a newspaper article an occurrence which involved inflammatory material.

ALL fair and accurate reporting of events, speeches and articles should be exempt -otherwise how else will the general public find out about them?

10.551 IMPRESS, a self-regulatory body for news publishers, said

We consider that broadcast and print media should not be subject to criminal liability for hate speech where they are already well-regulated in the public interest by legally recognised regulators such as IMPRESS and OFCOM.

10.552 In our consultation paper on Harmful Online Communications we noted

Given that a free and independent press is crucial in a democratic society, the burden of justification for imposing criminal liability (where none currently exists) is especially weighty. Even if there were not, in fact, any successful prosecutions of the press under the proposed offence, there is a risk that mere existence of the offence would have a chilling effect on the exercise of freedom of expression by the press and media outlets. Finally, the existing regulatory schemes within which these groups operate render the imposition of additional criminal liability superfluous.972

10.553 Domestic law recognises the importance of journalism. For instance, journalistic material is treated differently under legislation relating to police searches, 973and the

Draft Online Safety Bill contains measures to ensure that news organisations are not treated as publishers of user-to-user content.974

10.554 Case law on the European Convention on Human Rights has also stressed the importance of journalism to the public interest.

In cases concerning the press, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued.975

10.555 In Thoma v Luxembourg, 976the ECtHR held that

A general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas.

10.556 In Jersild, the ECtHR held - in the context of hate speech - that the press cannot, in general, be held liable merely for disseminating statements made by third parties:

The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.

10.557 Against this, it should be noted that in Jersild, six judges dissented, two holding that the conviction was justified since the journalist “made no real attempt to challenge the points of view he was presenting, which was necessary if their impact was to be counterbalanced, at least for the viewers”. Four others said, “Neither the written text of the interview nor the video film we have seen makes it clear that the remarks of the Greenjackets977 are intolerable ... it was absolutely necessary to add at least a clear statement of disapproval”. The majority, however, held that

Both the TV presenter’s introduction and the applicant’s conduct during the interviews clearly dissociated him from the persons interviewed, for example by describing them as members of "a group of extremist youths" who supported the Ku Klux Klan and by referring to the criminal records of some of them. The applicant also rebutted some of the racist statements for instance by recalling that there were black people who had important jobs. It should finally not be forgotten that, taken as a whole, the filmed portrait surely conveyed the meaning that the racist statements were part of a generally anti-social attitude of the Greenjackets.

Admittedly, the item did not explicitly recall the immorality, dangers and unlawfulness of the promotion of racial hatred and of ideas of superiority of one race. However, in view of the above-mentioned counterbalancing elements and the natural limitations on spelling out such elements in a short item within a longer programme as well as the journalist’s discretion as to the form of expression used, the Court does not consider the absence of such precautionary reminders to be relevant.

10.558 That is, the majority and the dissenters both seemed to accept that there was a duty to disassociate from the racist views of the “Greenjackets” but differed as to whether the journalist had done so.

10.559 At present, the racial hatred offence does not provide this protection. In a case like Jersild, where the journalist knew that his report included abusive content, they could be in breach of the law if the material was likely to stir up hatred, regardless of their intent.

10.560 Under our provisional proposal, the journalist would not be convicted unless they knew, or ought to have known, that the article was likely to stir up hatred, and knew, or ought to have known, that the material was threatening or abusive.

10.561 Even so, we do not consider that this gives sufficient protection to the journalist. There will be cases where a journalist will be aware that there is at least a substantial risk that material will stir up hatred in some of the audience, but that there is still a public interest in its broadcast.

10.562 Canadian hate speech legislation contains a defence for a person charged with public incitement or wilful promotion of hatred “if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada”.978

10.563 While this might provide a defence in a case such as Jersild, we feel it does not go far enough. The ability of journalists to report the comments of others should not rely on their willingness to publicly distance themselves from those words, or their purpose in reporting them.

10.564 In the case of Edwards v National Audubon Society, the US defamation case which developed the defence of “neutral reportage”, the federal appellate court held:

when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity... What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation.979

10.565 It went on

It is equally clear, however, that a publisher who in fact espouses or concurs in the charges made by others, or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage. In such instances he assumes responsibility for the underlying accusations.980

We can’t have police and the CPS deciding what standard of journalism is appropriate and for them to exercise judgment if you are being a good enough journalist in covering this issue... A more seasoned journalist might have jumped on David Starkey harder in that interview, but there are lots of junior reporters who wouldn’t because they haven’t got the confidence to do that.981

10.578 “News-related material” means news or information about current affairs, opinion about matters relating to the news or current affairs, or gossip about celebrities or other public figures in the news.

10.579 The purpose of excluding journalistic content from the draft Online Safety Bill is to ensure that news sites are not treated as social media companies hosting user-to-user material simply because they allow people to comment on their news content, and to ensure that social media companies act expeditiously and with due regard to freedom of expression when dealing with complaints relating material created by news organisations.

10.580 The reason we recommended the exclusion of news content from the recommended reformed communications offences was that the purpose of those offences is not to regulate media content but, primarily, person-to-person communications.

10.581 The stirring up offences, however, are intended to cover communications to the public at large. To exempt news providers as a group would drive a coach and horses through the legislation.

10.582 Equally, “journalism” as understood in a legal context is too broad a term. “Journalism” includes comment pieces, etc, which it is entirely proper that the laws on stirring up hatred should cover. It would be unsatisfactory if inflammatory hate material which would be unlawful if distributed on a flyer became lawful when included in a comment article in a newspaper.

10.583 The issue that respondents raised was essentially one of “reportage”. We have therefore concluded that the exception should be limited to “reportage”. That is, reporting by the media of comments made by another person should not be covered unless it is the reporter’s intent to stir up hatred.

10.584 “Neutral reportage” is a concept that domestic law has recently been adopting. At the time the Defamation Act 2013 was passed, the common law was developing a new defence of reportage. In Roberts v Gable (itself a case involving far-right extremists), Lord Justice Ward said

Reportage is a fancy word. The Concise Oxford Dictionary defines it as "the describing of events, esp. the reporting of news etc. for the press and for broadcasting." ... The doctrine first saw the light of day in Al Fagih. Simon Brown L.J. said in paragraph 6 that it was “a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.983

10.585 In Jameel, Lord Hoffman said

there are cases ("reportage") in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.984

It shall not be a breach of subsection (1) to publish in a newspaper, magazine, or periodical or broadcast by means of radio or television or other electronic communication a report relating to the publication or distribution of matter by any person or the broadcast or use of words by any person, if the report of the matter or words accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words.

Recommendation 30.

Parliamentary proceedings

The protection of Parliamentary proceedings clearly must be continued. To remove it would be to reopen the argument in the 1840 Stockdale v Hansard debacle.987

Court reporting

10.597 In our 2012 report on Contempt of Court: Court Reporting988 we said:

There is a clear public interest in the transparency of legal proceedings; it is for this reason that they are generally held in courts open to the public. That public interest also means that contemporary accurate court reporting is generally immune from being classified as a contempt of court.

10.598 Fair and accurate reports of court proceedings in any court in the United Kingdom are also exempt from defamation law, along with those of any court established by law outside the UK, and any international court established by the UN Security Council or by international agreement.

10.599 Given the need for the media to cover hate incidents that are prosecuted, it is entirely possible that court reports will need to include threatening or abusive material, notwithstanding that there is a danger that in doing so they risk inciting hatred in at least some part of their audience.

10.600 Some concern was expressed that media organisations may feel compelled to miss out important contextual detail when covering hate incidents. The Free Speech Union said:

It should not be the function of the criminal law to impose effective news and discussion blackouts on the details of events involving hateful speech, or to impose censorship on reports of such events requiring them to be expressed in general terms only.

10.601 We understand this concern. Indeed, we have expressed frustration above that the type of conduct that is caught by the stirring up offences is often misunderstood: vague references to “offensive comments” or “a racial slur” when reporting allegations or convictions may not fully convey the nature of the conduct or material for which people are prosecuted for stirring up hatred.

10.602 However, this is ultimately a matter for the media themselves, who have discretion as to how they report criminal trials. What is important is that they are not fettered by legal concerns. Accordingly, we recommend the retention of the existing exemption for fair and accurate reports of court proceedings.

Proceedings of local authorities and other bodies

10.603 Respondents were broadly supportive of extending the exemption to cover reports of proceedings of local authorities and other bodies.

10.604 It is likely that if our recommendation on reportage (see paragraphs 10.543 to 10.590) were accepted, reports of Parliamentary and court proceedings would be protected even if they were intended to stir up hatred. However, the protection afforded for reports of parliamentary and judicial proceedings is absolute - the report need only be “fair and accurate”. The law contemplates that material might be intended to stir up hatred yet still be “fair and accurate”.989 It follows that such a report is protected even if the intent in publication is to stir up hatred.

10.605 We are therefore circumspect about extending the absolute protection afforded to parliamentary and judicial proceedings to a much wider range of bodies. This would allow the deliberate incitement of hatred where this could be done by quoting proceedings in overseas legislatures or courts.

10.606 To give some examples, if the current protection afforded to fair and accurate reports of proceedings in parliament were extended to overseas legislatures, a neo-Nazi group could circulate verbatim copies of a speech calling for violence towards immigrants made by a far-right politician in a regional parliament in Eastern Europe; or an Islamist organisation might seek to circulate verbatim calls for violence against Jews made by an Iranian legislator.

10.607 We do not think the absolute protection afforded to reports of domestic parliamentary proceedings should be extended to cover such situations. We think that our exemption for neutral reportage (which only applies to the “likely to” limb) is preferable. Under our proposed exception for reportage, such reports would be protected if they were made with no intent to stir up hatred; but not if the distributor intended to stir up hatred.

10.608 However, we do see a case for extending the protection to proceedings of a local authority within England and Wales. There are two important differences between proceedings of local authorities and proceedings of overseas legislatures. First, there is an additional public interest in receiving information about the proceedings of local authorities, which is that it enables the public to hold those bodies democratically accountable. Second, unlike members of overseas legislatures, members of local authorities in England and Wales are not outside the scope of the domestic criminal law. Local authority proceedings do not attract the absolute privilege that attaches to parliamentary proceedings, and if a member of a local authority unlawfully stirred up hatred during proceedings, it would be possible to prosecute the member themselves.

Academic and scientific publications

10.609 A number of respondents supported our suggestion that there might be protection for peer-reviewed articles in academic and scientific journals.

10.610 English PEN:

We would also support protections for peer-reviewed journals... Section 6(6) [of the Defamation Act 2013] disapplies the privilege where the claimant can show malice; an analogous provision in a hypothetical Hate Crime Act would probably be required, to prevent the establishment of a peer-reviewed journal for the precise purpose of disseminating inflammatory material.

10.611 The Free Speech Union stated:

we would go further and say that all bona fide academic journal publications should be protected here in accordance with the high level of protection conferred on academic freedom of speech by the Strasbourg court. People should be entitled to express opinion in an academic context whatever the technical status of the journal they publish their views in.

Nothing should interfere with academics’ freedom to publish material in academic journals where the journal editors themselves (as advised by independent peer reviewers) are happy that the content is based on sound empirical or theoretical reasoning - the only exception being the threat or incitement to violence (which is extremely improbable).

Many scientific papers are often accused of "stirring up hatred" merely because they present findings that conflict with popular narratives.

Peer reviewed scientific papers or scientific research should not be subjected to hate crime legislation. This is likely to lead to the suppression of scientific opinion, or even the policing of essential research in areas that may be deemed contentious.

Exemption of “materials in scientific or academic publications, should be seriously considered to maximise protection for free speech - especially where the reporting of evidence-based facts is concerned.

We fear that these could be abused. A leading medical journal has repeatedly contained content likely to stir up hatred against Israelis.

We favour no exemptions for any publication that is in the public domain.

10.618 The Alan Turing Institute suggested a more nuanced approach:

Provided that they are given with an adequate warning, the production of hateful content and description of hateful events and activities in such publications is critical to free and open debate. However, we caution that all publications should take due care when reproducing any hateful content and that steps should be taken to minimize the risk of harm, such as by keeping any reproductions as short as possible. Publications should only be permissible if they are created in ‘good faith’ rather than as a way to circumvent any other legal restrictions.

10.619 Like journalism and political speech, academic freedom is considered to be an area where any interference with freedom of expression requires particularly weighty justification.990

10.620 A debate about freedom of expression in universities has become increasingly visible in recent years. In 2018, the Parliamentary Joint Committee on Human Rights chaired by Harriet Harman MP published a report on freedom of speech in universities. It “did not find the wholesale censorship of debate in universities which media coverage has suggested” but did acknowledge “disincentives for students to put on challenging events [which] could be having a wider ‘chilling effect’”.991

10.621 In Miller, the Court accepted the evidence of Kathleen Stock that there was a

‘hostile climate’ facing gender-critical academics working in UK universities. She says that any research which threatens to produce conclusions or outcomes that influential trans-advocacy organisations would judge to be politically inexpedient, faces significant obstacles. These, broadly, are impediments to the generation of research and to its publication.992

10.622 Most exploration of this issue has concentrated on events, in particular higher profile cases of no-platforming or disinviting speakers. As Adekoya, Kaufmann and Simpson say, however,

incidents of no-platforming are not the most important threat to academic freedom. Rather, what matters is that research and teaching should happen in a way such that people are free to explore ideas, without needing to fear the consequences of disagreeing with others.993

10.623 Section 43 of the Education (No. 2) Act 1986 places a duty on those concerned in the governance of universities to “take reasonably practicable steps to ensure that freedom of speech within the law is secured for their members, students and employees, and for visiting speakers”.

10.624 The Education Reform Act 1988 imposes a duty on universities to ensure

that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions.

10.625 In February 2021, the Government published a White Paper, pointing to “a growing body of evidence citing a ‘chilling effect’ on staff and students, domestic and international, who may feel unable to express their cultural, religious or political views without fear of repercussion”. 994The Higher Education (Freedom of Speech) Bill, currently before Parliament, would add a new “duty to promote” the importance of freedom of speech within the law and academic freedom for academic staff.

10.626 In articulating threats to academic freedom and freedom of expression in universities, a number of factors have been pointed to, including intolerant attitudes and “noplatforming”, unacceptable intimidatory behaviour by protestors, unnecessary bureaucracy, the Prevent duty, regulatory complexity, and unduly complicated and cautious Charity Commission guidance;995 cultural pressures to conform on ideological or political grounds, the marketisation of higher education, increased dependence on income from China, and the ‘impact agenda’ in the Research Excellence Framework.996

10.627 We have not seen evidence that research is being inhibited by laws against stirring up hatred. Rather, both Stock and Adekoya, Kaufmann and Simpson essentially identify pressures from students and academic colleagues - extra-legal considerations - as inhibiting academics from publishing research in particular areas or promulgating certain views or findings.

10.628 These pressures are very different from the direct legal risks under defamation law which was thought to be inhibiting scientific publication and which prompted the explicit protection for publications in scientific and academic journals in the Defamation Act 2013.997 In particular, there were several cases where legal action was employed or threatened with a view to stopping criticism by scientific researchers.998

10.629 Conversely, we are not aware of any cases where academics have been deterred or prevented from publishing research because of fears that this would amount to stirring up hatred. Moreover, our reforms to the test for stirring up hatred would require either a provable intent to stir up hatred or the culpable use of threatening or abusive words or behaviour, and require a publication to be considered “as a whole”. Consequently, it is very hard to contemplate situations in which the publication in good faith of scientific or academic material would fall within the scope of the offences.

10.630 Accordingly, we are wary of recommending an exemption for material in peer-reviewed academic journals in the absence of evidence that the criminal law - as opposed to other pressures within academia - is having an inhibiting effect on the publication of material.

Religious texts

10.631 Several respondents considered that religious texts should be exempt from the legislation. During passage of the Hate Crime and Public Order Bill in Scotland, it was suggested that the measures could lead to Bibles or other sacred texts being banned.999

10.632 The laws on stirring up religious hatred and hatred on grounds of sexual orientation in England and Wales have been in place for over a decade and there have been no prosecutions in respect of religious texts. We do not envisage that the minor change we propose to the threshold would alter this, still less the proposed extension of the laws to cover sex, disability and trans.

10.633 However, it appeared that some respondents wanted to go further and exempt quotations from scripture. One member of the public commented:

I believe there should be special clauses to say the Bible and religious texts cannot be cited as hate crime, if they are reproduced or quoted.

10.634 This issue is much more complicated as clearly scripture can be selectively quoted, and perhaps out of context, in a way which may be intended or likely to stir up hatred against an identifiable group. It would severely undermine the stirring up offences if all that a person had to do in order to incite hatred lawfully was to find a supportive quote in scripture.

10.635 We therefore do not recommend that there should be any exemption from the law for quotations from scripture.

10.636 However, this does not mean that this could lead to Bibles or other holy books being banned under stirring up legislation. First, we are recommending that the freedom of expression clause for religion should be retained, with amendment, in the reformed stirring up offences. Second, at present the freedom of expression protection for religion under section 29J is limited to offences of stirring up religious hatred or hatred on grounds of sexual orientation. It does not apply to offences of stirring up racial hatred. We have recommended that the protections should apply to all stirring up offences (meaning that the protection could be invoked against a charge of stirring up racial hatred where the object was the religious beliefs or practices of an ethnoreligious group such as Jews or Sikhs). Third, we are recommending that in considering whether hatred was likely to be stirred up, there should be an explicit requirement for the material to be considered as a whole (as is already the case for plays).

10.637 Taking these measures together, therefore, we are confident that there is no danger that the reformed offences would prevent the dissemination of any holy books of mainstream religions in England and Wales.

Satire and ridicule

10.638 We were urged by Index on Censorship to amend the free speech clauses to incorporate not only discussion and criticism but also “satire or comedic mockery”.

10.639 Article 10 of the Convention protects not only the substance of ideas and information expressed, but also the form in which they are conveyed.1000 The European Court of Human Rights has made clear that freedom of expression extends to satire:

satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with an artist's right to such expression must be examined with particular care.1001

10.640 Interpreting the offence in section 127(1) of the Communications Act 2003, the Lord Chief Justice commented

Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation.1002

10.641 In Miller v College of Policing, the High Court stated “The Claimant’s tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1).”1003

10.642 Accordingly, we have concluded that an explicit reference to satire is unnecessary, as “discussion and criticism” already includes satirical or mocking treatment of issues. We accept that what is intended as humorous or satirical may lose some of that context when analysed in court proceedings, but we anticipate that after Chambers1004 (the “Twitter joke trial”), courts in England and Wales are likely to be more sensitive to the context in which communications are made.

Arts

10.643 Several individual responses to this question from members of the public also suggested that artistic works should be protected:

must be protected to speak nuanced truth about issues without fear of retribution.”

whole.”

10.644 Similar considerations apply to forms of artistic expression as to journalism and academic freedom. Article 10 protects the manner in which material is conveyed as well as its substance.1005

10.645 The Obscene Publications Act 1959 and the Theatres Act 1968 provided a defence of “public good ... in the interests of drama, opera, ballet or any other art, or of literature or learning” and that “the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground”.

10.646 We considered whether there was value in such a provision. Ultimately, we concluded that such a provision was not necessary.

10.647 First, there is no evidence of the stirring up offences being prosecuted in respect of material which would generally be considered artwork. At a conference organised by Index on Censorship in 2013, participants generally agreed that “the boundaries in the arts are controlled to a far greater extent by non-judicial considerations including public opinion and prevailing (and changeable) morality, taste, sensitivity”.1006

10.648 A recent publication by Arts Professional surveyed 513 of its readers, two-thirds of whom were directly involved in creating or presenting artistic work. It concluded:

Sometimes people don’t speak out for sensitivity to a situation or fear of hurting someone’s feelings. That’s often understandable, sometimes laudable, but also potentially dangerous if it protects those wishing to censor debate or those incapable of dealing with honest feedback. This, however, is not the primary deterrent to free speech. It is fear of consequences that sits at the heart of self-censorship in the sector. We might expect the sector to be wary of sharing their opinions of those who have power over them, such as funders and others they rely on for their livelihoods. Also, we have learned by now - often from personal experience - that social media can silence even the bravest of those who are willing to stand up and be counted. But it is deeply disturbing to find that colleagues are the ones most likely to leave arts professionals fearful of speaking openly.1007

10.649 As in academia, the threats to freedom of expression in the arts seem more to come from self-censorship, intimidation, reliance on funders, and institutional risk-aversion than a realistic prospect of legal sanctions.

10.650 Second, as a matter of principle, it should be possible for a person to predict with reasonable certainty at the point of making a statement or disseminating material whether they will be committing an offence, all the more so when a fundamental right like freedom of expression is concerned. If a person’s culpability can be dependent on a post-hoc assessment by experts it is unlikely there could be reasonable certainty in advance.

10.651 Third, it is not clear that there would be any consensus among experts in the arts as to where the proper balance between freedom of expression and protection against incitement of hatred should lie.

10.652 Finally, proceedings for these offences can only be brought with the consent of, at present, the Attorney General; in the next section we recommend that personal consent of the Director of Public Prosecutions should be required instead. Any decision to consent to a prosecution would have to have due regard to the importance of freedom of expression, and the high level of protection afforded to artistic works.1008

10.653 We do not think that stirring up offences, reformed as we propose, would have a chilling effect on artistic freedom and accordingly do not see a need to provide particular protection for artistic works.

Consent to Prosecution

10.654 At present, prosecutions for stirring up offences require the consent of the Attorney General (or the Solicitor General). We provisionally proposed that they should instead require the personal consent of the Director of Public Prosecutions.

Consultation

10.655 We asked consultees the following question:

Consultation Question 54

We provisionally propose that prosecutions for stirring up hatred offences should require the personal consent of the Director of Public Prosecutions rather than the consent of the Attorney General. Do consultees agree?

10.656 The vast majority of individual responses opposed this provisional proposal. Although some explanations suggested that this reflected general opposition to hate crime laws, it was also clear that many who expressed this view were engaging with the specific question.

This appears to be a downgrading of the consent requirement from the Attorney General to the Director of Public Prosecutions which again sends the wrong message about the importance of free speech.

These laws have serious implications for human rights and the Attorney General should be involved as being answerable directly to Parliament.

10.657 Many personal responses used identical wording, based on a template provided by the Christian Institute:1009

Requiring the Attorney General’s consent is an important check on over-zealous prosecutions. It was included because stirring up hatred laws have the potential for serious infringements of human rights. A person could face up to seven years in prison for spoken words. This extremely serious penalty needs strong safeguards at the highest level. Downgrading the consent requirement from the Attorney General to the Director of Public Prosecutions sends the wrong signal about the importance of free speech.

Analysis

10.658 Given the degree of opposition in individual responses, we have given our provisional proposal careful reconsideration.

10.659 In our review of Consents to Prosecution, 1010we identified three categories of offence for which a consent provision was appropriate. These were

10.660 The rationale for the first of these was that under the Human Rights Act 1998 (which was then before Parliament) the CPS would have to take convention rights into account in any decision to prosecute. A private prosecutor would not be bound by the Convention. It would not be desirable if private prosecutions could be brought in a way which would violate the defendant’s convention rights. The rationale for requiring consent for prosecutions in the third group was that in such cases the harm could not be adequately addressed by a subsequent acquittal or dismissal of the prosecution.

10.661 We recommended that for the first and third categories consent should lie with the Director of Public Prosecutions (DPP), and for the second the Attorney General.1011 The reason for preferring the DPP for the first and third categories was that “the DPP is in a position to take a properly informed decision when applying the public interest test, and the office of the DPP has the advantage that it is less exposed to the risk of allegations of political bias than that of a Law Officer”.1012

10.662 Prosecutions for stirring up hatred would often fall into the first category. However, we also think they are a type of offence where there is a very real risk of vexatious prosecutions being brought. In our recent report on Misconduct in Public Office we said:

While this has not historically proved to be a cause of major concern with respect to the offence, the recent private prosecution of Boris Johnson MP (prior to his current role as Prime Minister1013) demonstrates the potential for private prosecutions to be at least open to the criticism of being vexatious and politically motivated.1014

10.663 Likewise, in our recent report on electoral law, we concluded that a consent requirement should apply to a reformed offence of undue influence because “inappropriate prosecutions could stigmatise communications that in fact are legitimate exercises of religious freedom or free speech, or be used to sabotage a political campaign”.1015

10.664 There have been at least two occasions in recent political history where legal complaints of stirring up racial hatred have been investigated in relation to political comments that were clearly not within the scope of the stirring up offences that could reasonably be regarded as vexatious. In the consultation paper we referred to the investigation of Amber Rudd (in relation to her speech to the Conservative Party conference). 1016Then Prime Minister Tony Blair was also investigated by North Wales Police in 2005 over allegations he had used the expression “the fucking Welsh” while watching disappointing results in elections to the Welsh Assembly. It is clear to us that the possibility of politically motivated and vexatious complaints being brought under the stirring up offences is real. If these are (rightly) rebuffed by police and/or prosecutors, there is a real danger that in the absence of a consent provision, private prosecutions might be brought.

10.665 In these circumstances, it is unattractive that the decision whether to allow or block a prosecution should lie with someone who may be either a political colleague or ally, or equally a political opponent, of the person subject to, or the person bringing, the complaint.

10.666 It was clear that most respondents thought only of the Attorney General as a check on prosecutions, and that requiring the consent of the Attorney General rather than the Director of Public Prosecutions would be a more effective check on prosecutions. Few considered whether an Attorney General may be subject to pressure to permit a prosecution that a DPP would block.

10.667 We believe that there is just as much danger of political pressure being applied, or being perceived to apply, to an Attorney General to consent to a prosecution. In such circumstances the politically safest option for an Attorney General might be to allow the prosecution on the basis that this would put the issue in the hands of the court.

10.668 Having reconsidered the issue, we are satisfied that consent to prosecution should be required and this should lie with the Director of Public Prosecutions rather than the Attorney General.

10.669 Ordinarily, the DPP’s consent to prosecute can be exercised by any Crown Prosecutor. This is different from the Attorney General’s consent, which is nondelegable (but can be exercised by the Solicitor General under the Law Officers Act 1997). However, under the Bribery Act 2010, consents for a prosecution for an offence under that Act must be personally exercised by the DPP or the Director of the Serious Fraud Office or, if the Director is unavailable, another person who has been personally authorised by the Director to act during his or her unavailability (who must themselves act personally). A similar provision has been included in the Criminal Finances Act 2017 for the offence of failure to prevent facilitation of foreign tax evasion. We believe that this provides a workable precedent. Given the low number of prosecutions for stirring up offences, such an arrangement would not prove onerous. It is already the case that the CPS provides advice to the Attorney General on the exercise of his or her consent and so transferring this responsibility to the DPP would not create an increased workload for the CPS.

10.670 Accordingly, we affirm our provisional proposal that prosecutions for stirring up hatred should require the personal consent of the Director of Public Prosecutions.

Recommendation 31.

10.671 We recommend that any prosecution for stirring up hatred should require the personal consent of the Director of Public Prosecutions.

Chapter 11: Racialist chanting at football matches

INTRODUCTION

If there is a specific offence of throwing missiles at a designated sports ground, a separate specific offence of chanting obscene or racialist abuse there and a third specific offence of going on the pitch without reasonable excuse there and, if full publicity is given to the legislation, hooligans will know precisely what is prohibited.5

Mr Justice Popplewell’s remit also included the death of a boy at a Birmingham City match on the same day as the Bradford disaster, and was extended to take account of the events at Heysel Stadium in May 1985.

Lord Justice Taylor, The Hillsborough Stadium Disaster (1990) Cm 962.

Mr Justice Popplewell, Committee of Inquiry into Crowd Safety and Control at Sports Grounds, (1985) Cmnd 9585, Recommendation 8.

Mr Justice Popplewell, Committee of Inquiry into Crowd Safety and Control at Sports Grounds (1986), Cmnd 9710, para 4.52.

Lord Justice Taylor, The Hillsborough Stadium Disaster (1990) Cm 962, para 299.

Martin Carthy, quoted in C. Irwin (2006) “Sing When You’re Winning: football fans, terrace songs and a search for the soul of soccer”, and Andrew Lawn (2014) “Who are ya? Who are ya? Who are we? Why do we chant at football and what do those chants tell us about who we are as individuals and as a society?”. the pitch, when they normally do not have the power to do so “ and “providing a positive identity ... by expressing more general feelings of pride”.7 In footnote 21 of this chapter we highlight research pointing to a positive impact on community relations following the signing of Mo Salah for Liverpool in 2017, reinforced by pro-Salah chants referencing the footballer’s Muslim faith.

THE OFFENCE

Dr Joanne Luhrs (2007) “Football Chants and the Continuity of the Blaison Populaire Tradition”, pp 231 and 234.

Kick It Out, Annual Report 2019/20 (2020). The organisation received 282 reports of racist incidents, plus a further 25 instances of antisemitic conduct, which they classify under ‘religion’. Kick It Out is a charity, first established in 1993, to tackle racism and later other forms of discrimination within football.

Home Office, Football-related arrests, 24 September 2020, available at

https://www.qov.uk/qovemment/collections/football-banninq-order.

in the Public Order Act 1986 (“POA 1986”), this should be interpreted subjectively; that is, did that person find it insulting by reason of his colour, race, etc. However, in DPP v Stoke-on-Trent Magistrates Court,1017 the High Court ruled that “it is immaterial for the purposes of the offence whether persons of the racial group referred to in the alleged offending words are present so as to hear them, or, if so present, are offended or affected in any way by them.” It was sufficient that the words used were “racially derogatory or insulting”.

CONSULTATION PAPER

Retention of the current offence

We provisionally propose that racist chanting at football matches remain a criminal offence distinct from the current POA 1986 offences. Do consultees agree?

this represents a special situation. This is not the arguing of a personal position on a particular topic, or a discourse or debate. This is a tribal chanting, usually en masse, and it is calculated to negatively affect the subject(s) of the abuse. Furthermore, it is carried out in a public arena where there are children, and who cannot in this situation be shielded from the influence of the chanters. I think that this goes beyond free speech, and it should be an offence.”

extending this kind of law is that I don't see football chants as being anything like the same as ‘Free Speech’.”

Whilst we agree that a distinct offence under the Football (Offences) Act should exist, this shouldn’t preclude cases being brought under the POA 1986 in the right circumstances. Football has used the racially aggravated versions of sections 4A and 5 of the POA 1986 in private prosecutions for in-stadia abuse and recommend a suite of offences remain available to prosecutors seeking to bring a case against discriminatory abuse inside stadia.

We consider that this behaviour is better covered by the aggravated public order offences contained in the Crime and Disorder Act 1998 (which superseded the Football (Offences) Act 1991). Racist chanting is inherently aimed at causing harassment alarm and distress to an individual or individuals and the circumstances when it could be realistically argued that no-one was likely to be caused harassment, alarm and distress are difficult to envisage. As the aggravated Public Order Act offences provide a stronger and more flexible means of prosecuting this behaviour at football grounds and other sporting venues, we consider that the arguments in favour of the retention of this offence are outweighed by the arguments that it is now effectively redundant.

The scope of the offence

We invite consultees’ views on whether the offence under section 3 of the Football (Offences) Act 1991 should be amended to include association and perceived characteristics.

practice enable prosecution of chanting which targets someone on the basis of presumed membership of a racial group or of association with a racial group. In fact, the drafting of the offence makes this easier to prove than an aggravated public order offence. We therefore do not recommend that the offence be amended to cover presumed membership or association.

Extension to cover other characteristics

We provisionally propose that the offence under section 3 of the Football (Offences) Act 1991 of engaging in “chanting of an indecent or racialist nature at a designated football match” be extended to cover chanting based on sexual orientation. Do consultees agree?

We welcome consultees’ evidence on the prevalence of discriminatory chanting targeting characteristics other than race and sexual orientation, and would welcome views on whether the offence should be extended to cover all protected characteristics.

Yes, we would strongly welcome the extension to all forms of discrimination not only chanting based on sexual orientation. This is an opportunity to be proactive and create legislation that will continue to be fit for purpose in the future. We encourage parity of protected characteristics across hate crime legislation, including aggravated offences.

if the offence of racist chanting at football matches is to be retained within a new hate crime legal framework, then it would be logical and consistent for the offence to be extended to cover all of the statutory protected characteristics.

Extension to cover gestures and missiles

We invite consultees’ views on whether the offence under section 3 of the Football (Offences) Act 1991 should be extended to cover gestures and missile throwing.

Racially-motivated missile throwing is so rare at football that introducing a new offence is unnecessary. It would be more proportionate for the s.2 offence of missile throwing at football to be added to the list of offences which are made Racially Aggravated by the Crime and Disorder Act 1998.

Travel to matches

Pearson has suggested that the legislation has become “part of the regulation around attending live football events”.1028

11.61 In contrast, the broader legislation of the Football Supporters Act 1989 (FSA 1989) was created and amended several times with a much wider purpose of dealing with a broader range of offending, both within and outside matches, including dealing with extra-territorial disorder committed by home fans overseas. Consequently, the powers available under the FSA 1989 to make football banning orders (“FBOs”) extend to certain offences committed while the accused was on a journey to or from the match. This is extremely broad, and can include breaks in the journey, including overnight breaks. The powers can also extend to offences committed away from the ground and not while on a journey, if they take place within the period of two hours before and one hour after the match and if the court concludes that they were “related to” one or more matches. In July 2021, following online abuse directed at Marcus Rashford, Jadon Sancho and Bukayo Saka (see paragraph 11.21), the Government announced it would make FBOs available following online abusive behaviour related to football.1029

If an offence takes place in a football stadium, it is easy to understand that it should be covered by the Football (Offences) Act. If it is extended to cover travel, it becomes ambiguous and almost impossible to understand where the travelling element stops or starts. For example, if somebody were to go shopping in the town centre before heading to a match, at what point does the travel to the match start?

It’s also possible that an incident that occurs between two parties is between one travelling to a football match and one that isn’t. They may commit exactly the same offence; therefore there is no reason for the Act to apply to one but not the other.

It is in our view arbitrary to subject offensive comments made on a bus or train (or for that matter in a car) to different regimes, depending on whether the defendant is or is not en route to a football match at the time.

CONCLUSION

As a spectator sport, the ‘beautiful game’ has changed dramatically since the enactment of the FOA 1991. This has been mirrored by fundamental changes to the operation of criminal law in the courts resulting from the introduction of s 3 Human Rights Act 1998 and changing attitudes to ‘Hate Crime’. Combined, these developments challenge the suitability and relevance of the FOA, and in particular ss 3 and 4. The original rationale for the FOA is almost forgotten in its current usage, which is overwhelmingly to deter and punish low-level regulatory infractions. Where more serious misbehaviour occurs, other criminal offences tend to be used, most obviously under POA 1986 and aggravated offences under the Crime and Disorder Act 1998. As a society we need to decide whether the regulation of low-level disorder and antisocial or verbally offensive behaviour at football matches should be a matter for the criminal law, police and courts. There is a strong argument that FOA 1991 has had its day and that these low-level infractions should instead be managed through ticketing terms and conditions and club surveillance systems and security personnel.

the relative simplicity of FOA still serves a purpose. For police officers, who are typically reminded of its powers at each prematch briefing, FOA is highly valuable as a set of established and easy-to-understand and apply rules.

Recommendation 32.

Chapter 12: A Commissioner for Countering Hate Crime and a Hate Crime Act

INTRODUCTION

A COMMISSIONER FOR COUNTERING HATE CRIME

Other Commissioners in the criminal justice system

Slavery Commissioner, 1033the Commission for Countering Extremism,1034 and the Domestic Abuse Commissioner.1035

Independent Anti-Slavery Commissioner
Domestic Abuse Commissioner

Functions that might be served by a Commissioner for hate crime

Commissioner, Domestic Abuse Commissioner, or the Lead Commissioner for Counter Extremism on areas which overlap.

Benefits of introducing a Commissioner for hate crime

Arguments against introducing a Commissioner for hate crime

(£1 million per year)1055 and the IASC (£575,000 for the 2019/2020 financial year)1056 and estimated that the Commissioner for hate crime would likely cost somewhere in between these two figures on the basis that the scale of hate crime falls in between the scale of the offending under the remit of these two commissioners. 1057This is not an insignificant cost.

Practical matters

Consultation question

Consultation responses

Consultation Question 62

We invite consultees’ views on whether they would support the introduction of a Hate Crime Commissioner

Summary Consultation Question 20:

Should a Hate Crime Commissioner be introduced in England and Wales?

The Law Commission’s statutory role concerns law reform. It has no status in relation to the creation of a new public body.1067

Recommendation 33

An office of a Hate Crime Commissioner for Northern Ireland should be established. I believe that the issues involved in the area of hate crime and hate speech fully justify such a dedicated post.

Responses in favour of a Commissioner
Benefits of a Commissioner

Despite [the] vast apparatus [to prevent and tackle hate crime], there is no current point of responsibility or oversight apart from the Minister. A Hate Crime Commissioner would be uniquely placed not only to provide oversight of the state’s implementation of hate crime laws but as a critical focal point and spokesperson. A commissioner could play a pivotal role in ensuring police, CPS, and civil society are joined up. Such a role could help heal systemic gaps and widespread mistrust between communities and police.

[A Hate Crime Commissioner could be] particularly important given the current structure of responsibility for hate crime being split between the Home Office and [Department for Levelling Up, Housing and Communities], and the involvement of other departments and agencies such as the Ministry of Justice, the Government Equalities Office and the CPS.

Support for the identified functions of a Commissioner

Assessing and monitoring the provision of services to people affected by hate crime

A Hate Crime Commissioner could play a key role in investigating and highlighting gaps in support service provision, promote best practice, oversee the collection of data, and ensure minimum quality standards are met across different support services.

Monitoring the consistency and effectiveness of police recording and the application of CPS guidance

Monitoring the effectiveness of alternatives to prosecution, such as restorative justice

Restorative justice is particularly important given the injustices posed to Black people by and in the criminal justice system, as highlighted by the global Black Lives Matter movement; alongside the injustices posed to communities of colour more widely by and in the criminal justice system. There is an urgent need for significantly increased investment in restorative justice approaches. [...]

We therefore strongly recommend that the legal remit of the Hate Crime Commissioner goes further than “monitoring effectiveness”, and explicitly requires the Commissioner to play an active leadership role in this area of work.

Strong leadership is vital in this area: the use of restorative justice for hate crime is not common practice in most police and probation areas, so a strong and consistent message is needed to change the mindset of staff working with victims of crime.

The issues arising from hate crime extend beyond criminal justice. They are analogous to modern slavery in that many of the crimes will be unreported and hidden from the criminal justice authorities.

Supporting the carrying out of research

In 2019 we surveyed the available evidence on online abuse and hate and found huge gaps in [it]. We summarised that the evidence is, “fragmented, incomplete and inadequate”. In particular, as of 2020, the official hate crime statistics from the Home Office no longer include any evidence on online hate. This is a huge omission, and there are numerous other problems with how hate crime is evidenced, and how information is communicated to stakeholders and the public.1075

Supporting the development and implementation of educational resources to challenge prejudicial behaviour

Raising awareness of the prevalence and specific impacts of hate crime on individuals and communities

We agree that the role may also help to raise the profile of hate crime in communities and encourage victims coming forward and reporting hate crimes and incidents where they have previously felt unable to do.

Centralised consultation with stakeholders from across all hate crime strands

A key factor in the successful application and ongoing review of hate crime legislation will be an understanding of the minority groups that make up the protected characteristics and to be able to maintain the dialogue with a responsible Commissioner in future would be of continuing benefit to affected stakeholders.

Cooperating and consulting with other Commissioners

Commissioner; Independent Anti-Slavery Commissioner; Children’s Commissioner; the Commission for Countering Extremism; and Police and Crime Commissioners.

Keep hate crime legislation under review
Additional functions for the Commissioner
Conditions for the Commissioner to be effective

12.65    Consultees in support of a Commissioner nonetheless identified several conditions
which they considered necessary for the role of the Commissioner to be effective:

12.66 Many consultees commented on the qualities which any Commissioner would have to possess, including:

Neutral comments
Overlap and duplication

It appears that a Hate Crime Commissioner may duplicate the roles of several Government Departments and organisations and potentially introduce more confusion.

It is not clear how the creation of a new Hate Crime Commissioner post would work alongside the Victims’ Commissioner, or whether victims of certain crimes such as hate crime would benefit from having specific Commissioners in silo, as opposed to there being one overarching Victims’ Commissioner.

Independence

Should the office of a Hate Crime Commissioner be created, then it is essential that their role be clearly circumscribed so as to ensure that the independence of the Crown Prosecution Service and prosecutorial decision making remains absolute.

Freedom of expression
Selection process
Suitable candidate
Responses against a Commissioner
Resources and cost
Unnecessary
Independence
Free speech
Damaging to equality
Unsuitable for one person
Ineffective
Insufficiently justified
Alternatives to a Commissioner
Expanding the remit of the Victims’ Commissioner

The creation [of] a statutory duty on criminal justice agencies to co-operate with the VC.

The power to issue reports to the relevant Secretary of State and criminal justice agency, and for them to respond to recommendations within a set period of time.

A greater role for the VC in monitoring the operation of the Code of Practice for Victims of Crime.

A cross-governmental approach
A group or committee
Changing the name

Conclusion following consultation

The role of a Commissioner
Responding to consultees’ concerns
Addressing the alternative suggestions
Recommendation

Recommendation 33.

A HATE CRIME ACT

Consultation

We provisionally propose that a single “Hate Crime Act” be used to bring together the various reforms to hate crime laws proposed in this paper. This could include:

o shifting the substantive aggravated offences currently in the CDA 1998 and the stirring up hatred offences in parts 3 and 3A of the POA 1986 to the new Hate Crime Act;

o making amendments to the enhanced sentencing provisions (currently in the CJA 2003 but planned to move to the Sentencing Code) and the Football (Offences) Act 1991; and

o if a Hate Crime Commissioner is to be introduced, the establishment of this office and its powers.

Do consultees agree that hate crime laws should, as far as practicable, be brought together in the form of a single “Hate Crime Act”?

Although it asked a somewhat technical question about the location of laws, it also touched on wider symbolic concerns that respondents had about the concept of hate crime.

Any changes being written into law and the potential for negative consequences in practice of extending the reach of these laws have the potential for [a] substantial ‘chilling effect’ on freedom of speech.

Prosecutors have found the current legal framework for hate crime fragmented and potentially confusing. Prosecuting hate crime cases has also highlighted anomalies in the current legislative framework. A new overarching ‘Hate Crime Act’ could have the benefit of bringing together all of the various pieces of hate crime legislation and would provide an opportunity to simplify the law, whilst also resolving the anomalies.

A clear and new piece of primary legislation to consolidate the existing legislation and deal with inconsistencies and unhelpful complexities in the existing legislative landscape is strongly supported.

in our view the current law has evolved in a haphazard manner resulting in the provisions appearing in different statutes; a single statute would make the law clearer and easier to locate for professionals and the public alike.

The current situation of disparate statutes, differing rules and applicability is confusing and in our view undesirable as it adds an unwanted complicating factor to an already challenging issue that sits, for many, as a test of public confidence for groups with poor experiences with the criminal justice system.

the creation of a single Hate Crime Act that consolidates complex and piecemeal existing legislation, and extends and equalises protections across all protected characteristics, including sexual orientation and transgender identity.

creating a single Hate Crime Act will facilitate the ... public understanding of hate crime law, by removing the need for extensive research and access to many different Acts such as the CDA 1998 and the POA 1986. This will positively improve many aspects of the rule of law previously lacking in this area: clarity, transparency, consistency and access to justice.

enhance our chances of consistency in service delivery and protecting victims. Currently this relies upon those with wider understanding, or a level of specialism in ensuring these laws are used fairly and consistently.

It would be an extraordinary category error to call a consolidating/reforming statute the ‘Hate Crime Act’1107

Conclusion following consultation

Recommendation 34.

Recommendation 1.

Paragraph 3.93

Recommendation 2.

Paragraph 4.67

Recommendation 3.

Paragraph 4.111

Recommendation 4.

Paragraph 4.152

Recommendation 5.

Paragraph 4.230

Recommendation 6.

Paragraph 4.279

Recommendation 7.

Paragraph 4.288

Recommendation 8.

Paragraph 5.381

Recommendation 9.

Paragraph 5.397

Recommendation 10.

Paragraph 6.139

Recommendation 11.

13.12 We recommend that the current dual approach of aggravated offences and enhanced sentencing be retained in England and Wales.

Paragraph 8.55

Recommendation 12.

Paragraph 8.70

Recommendation 13.

Paragraph 8.97

Recommendation 14.

Paragraph 8.135

Recommendation 15.

Paragraph 8.196

Recommendation 16.

Paragraph 8.238

Recommendation 17.

Paragraph 8.256

Recommendation 18.

Paragraph 9.36

Recommendation 19.

13.23 We recommend that the demonstration limb of the legal test for aggravated offences and enhanced sentencing be retained.

Paragraph 9.62

Recommendation 20.

Paragraph 9.94

Recommendation 21.

Paragraph 10.143

Recommendation 22.

Paragraph 10.169

Recommendation 23.

Paragraph 10.216

Recommendation 24.

13.29 We recommend that the dwelling exception be replaced with an exception for “private conversation”.

Paragraph 10.296

Recommendation 25.

Paragraph 10.326

Recommendation 26.

Paragraph 10.370

Recommendation 27.

Paragraph 10.424

Recommendation 28.

Paragraph 10.445

Recommendation 29.

Paragraph 10.534

Recommendation 30.

Paragraph 10.591

Recommendation 31.

13.49 We recommend that any prosecution for stirring up hatred should require the personal consent of the Director of Public Prosecutions.

Paragraph 10.671

Recommendation 32.

Paragraph 11.78

Recommendation 33.

13.51 We invite the Government to consider establishing a hate crime.

Commissioner for countering

Paragraph 12.110

Recommendation 34.

Paragraph 12.147

E02698703

978-1-5286-3067-2

1

See Crime and Disorder Act 1998, s 29.

2

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, available at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxoui24uiy7q/uiploads/2020/10/Hate-crime-final-report.pdf.

3

There are a large number of “strict liability” regulatory offences which do not require a particular mental state. See A. Ashworth & M Blake, “The Burden of Proof and the Presumption of Innocence” [1996] Crim LR 306.

4

The origin of the definition was a recommendation made in respect of police treatment of racist hate crime and hate incidents in the MacPherson Report, which was the result of an inquiry into matters arising from the racially motivated murder of Stephen Lawrence Recommendation 12 of this report was that a racist incident be defined as “any incident which is perceived to be racist by the victim or any other person. The Stephen Lawrence Inquiry: report of an inquiry by Sir William Macpherson of Cluny (1999) Cm 4262-I, Chapter 47, Recommendation 12.

5

  Miller v College of Police and the Chief Constable of Humberside [2020] EWHC 225 (Admin) 261.

6

  See Crown Prosecution Service, CPA Annual Publication: Hate crime & crimes against older people pre

charge and prosecution outcomes by crime types (2021) available at

https://www.cps.gov.uk/sites/default/files/documents/publications/Hate-Crime-Annual-Data-Tables-Year-Ending-March-2021.xlsx.

7

Race Relations Act 1965, s 6.

8

Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348.

9

Law Commission, Hate Crime: Background to our review (March 2019), available at https://s3-eu-west-

2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2019/07/6.5286-LC Hate

Crime Information-Paper A4 FINAL 030719 WEB.pdf.

10

Charles Wide, “Hostility crime and the Law Commission” (2021) Policy Exchange, available at https://policyexchange.org.uk/publication/hostility-crime-and-the-law-commission/.

11

This included some instances when, logically, it might be anticipated that some of these responses might be supportive - such as when we proposed the introduction of freedom of expression protections.

12

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 13.

13

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) available at https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/.

14

Further general information is available at https://www.hatecrimereviewni.org.uk/.

15

  Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020).

16

  Legislating for Hate Speech and Hate Crime in Ireland, Report on the Public Consultation 2020. Available at

http://www.justice.ie/en/JELR/Legislating for Hate Speech and Hate Crime in Ireland Web.pdf/Files/Le gislating for Hate Speech and Hate Crime in Ireland Web.pdf.

17

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, Chapters 2, 4

and 6. Available at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-

18

11jsxou24uy7q/uploads/2020/10/Hate-crime-final-report.pdf.

Crime and Disorder Act 1998, ss 29 to 32.

19

Sentencing Code, section 66.

20

Public Order Act 1986, ss 18 to 23 and ss 29B to 29G.

21

Football (Offences) Act 1991, s 3.

22

Labour Party (1997), “New Labour, because Britain deserves better”.

23

Hansard (HL), 27 Nov 2001, vol 629, col 150.

24

Crime and Disorder Act 1998, s 29(1)(a).

25

   Crime and Disorder Act 1998, s 29(1)(b).

26

  Crime and Disorder Act 1998, s 29(1)(c).

27

  Crime and Disorder Act 1998, s 30(1).

28

  Crime and Disorder Act 1998, s 31(1)(a).

29

  Crime and Disorder Act 1998, s 31(1)(b).

30

  Crime and Disorder Act 1998, s 31(1)(c). Previously, conduct could also be “insulting”, as under ss 4 and

4A, but this word was removed from s 5 by the Crime and Courts Act 2013, s 57 with effect from 1 February 2014.

31

Crime and Disorder Act 1998, s 32(1)(a).

32

Crime and Disorder Act 1998, s 32(1)(b). The offences contained in sections 4 and 4A of the Protection from Harassment Act 1997 did not exist when the Crime and Disorder Act 1998 was passed. Section 32 of the Crime and Disorder Act 1998 was amended to include aggravated versions of these offences by section 144 of the Protection of Freedoms Act 2012.

33

Lord Williams for the government explained that the offences were chosen because they were the most frequent forms of racist crime. Offences which carry a maximum sentence of life imprisonment were omitted because no higher penalty is possible. Hansard (HL) 12 Feb 1998 vol 585, cols 1280 to 1284.

34

Anti-terrorism, Crime and Security Act 2001, Pt 5.

35

See further paragraph 2.36.

36

Jones [2010] EWHC 523 (Admin), [2011] 1 WLR 833 at [17] and [20].

37

  Dykes [2008] EWHC 2775 (Admin), (2009) 173 Justice of the Peace 88 at [20] by Calvert Smith J.

38

Jones [2010] EWHC 523 (Admin), [2011] 1 WLR 833 at [17] by Ouseley J; G [2004] EWHC 183 (Admin), (2004) 168 Justice of the Peace 313 at [15] by May LJ.

39

See McFarlane [2002] EWHC 485 (Admin), [2002] All ER (D) 78 (Mar); Howard [2008] EWHC 608 (Admin), [2008] All ER (D) 88 (Feb).

40

Rogers [2007] UKHL 8, [2007] 2 AC 62 at [13] by Baroness Hale.

41

DPP v Green [2004] EWHC 1225 (QB); The Times 7 July 2004.

42

Woods [2002] EWHC 85 (Admin) at [13]. See also Crime and Disorder Act 1998, s 28(3), which states that “it is immaterial... whether or not the offender's hostility is also based, to any extent, on any other factor”.

43

Pal [2000] Criminal Law Review 756 at [16].

44

Although doing so is unusual, and hence it may be more difficult to prove that the hostility was racial or religious in nature (and not based on something else, for instance the victim’s disagreeable behaviour). See White [2001] EWCA Crim 216, [2001] 1 WLR 1352 at [20] by Pill LJ.

45

Crime and Disorder Act 1998, s 28(1)(a); Parry [2004] EWHC 3112 (Admin), [2004] All ER (D) 335 (Dec) at [19].

46

  [2007] EWCA Crim 2737, [2007] All ER (D) 383 (Oct).

47

Babbs [2007] EWCA Crim 2737, [2007] All ER (D) 383 (Oct) at [8]. Contrast Parry [2004] EWHC 3112 (Admin), [2004] All ER (D) 335 (Dec): there was no sufficient connection as the defendant had gone inside after causing criminal damage to a neighbour’s home and used the relevant words when the police called to ask whether he was responsible some 20 minutes later.

48

Babbs [2007] EWCA Crim 2737, [2007] All ER (D) 383 (Oct) at [8].

49

  Babbs [2007] EWCA Crim 2737, [2007] All ER (D) 383 (Oct) at [8].

50

  Howard [2008] EWHC 608 (Admin), [2008] All ER (D) 88 (Feb).

51

Crown Prosecution Service, Racist and Religious Hate Crime - Prosecution Guidance (21 October 2020) available at https://www.cps.gov.uk/legal-guidance/racist-and-religious-hate-crime-prosecution-guidance.

52

E Burney and G Rose, Racially Aggravated Offences - how is the law working? (Home Office Research Study 244, Jul 2002) p 13. Although this research was conducted nearly 20 years ago, the CPS advise that this remains the case to this day.

53

  Taylor v DPP [2006] EWHC 1202 (Admin), (2006) 170 Justice of the Peace 485.

54

Presumed by the offender: Crime and Disorder Act 1998, s 28(2).

55

See Rogers [2007] UKHL 8, [2007] 2 AC 62. See also D [2005] EWCA Crim 889, [2005] 1 WLR 2810; Kendall v South East Essex Magistrates’ Court [2008] EWHC 1848 (Admin), [2008] All ER (D) 356 (Jun).

56

Eg if one white person were to say to another, having assaulted him, “you n****r lover” upon seeing the victim rejoin a group of black friends at the bar: DPP v Pal [2000] Criminal Law Review 756 at [13] by Simon Brown LJ.

57

Note that for the demonstration limb of the offence, the hostility in question must be directed at the victim’s race or religion (or presumed race or religion), whereas the motivation limb simply covers hostility towards members of a particular racial or religious group generally.

58

McFarlane [2002] EWHC 485 (Admin), [2002] All ER (D) 78 (Mar).

59

Green [2004] EWHC 1225 (Admin), The Times 7 Jul 2004.

60

Johnson [2008] EWHC 509 (Admin), The Times 9 Apr 2008.

61

M [2004] EWHC 1453, [2004] 1 WLR 2758.

62

This definition is derived from that used in the Race Relations Act 1976 and is also used for the purposes of the stirring up offences. Jews, Sikhs (Mandla v Dowell Lee [1983] 2 AC 548, [1983] 2 WLR 620), Romany gypsies (Commission for Racial Equality v Dutton [1989] QB 783, [1989] 2 WLR 17), and Irish Travellers (O’Leary v Punch Retail (unreported, 29 Aug 2000)) are recognised racial groups based on their ethnic origins.

63

 A-G’s Reference No 4 of 2004 [2005] EWCA Crim 889, [2005] 1 WLR 2810.

64

Rogers [2007] UKHL 8, [2007] 2 AC 62. Depending on the context, use of the term “foreigners” can also demonstrate racial hostility. M [2004] EWHC 1453 (Admin), [2004] 1 WLR 2758; likewise with “immigrant”, ie non-British. A-G’s Reference No 4 of 2004 [2005] EWCA Crim 889, [2005] 1 WLR 2810.

65

Rogers [2007] UKHL 8, [2007] 2 AC 62 at [12] by Baroness Hale.

66

N Addison, Religious Discrimination and Hatred Law (2007) p 126. Contrast the Equality Act 2010 regime, which includes within its protection “religion or belief” (the latter including any religious or philosophical belief) or lack thereof (s 10).

67

R (Hodkin) v Registrar General of Marriages [2013] UKSC 77, [2014] 2 WLR 23 at [57] by Lord Toulson. The question was whether Scientology was a religion, and so its churches entitled to be registered as places of worship and used for the holding of marriages. The Court answered in the affirmative, overturning Registrar General ex parte Segerdal [1970] 2 QB 697, [1970] 3 WLR 479, which had emphasised the need for religious belief to involve worship of a deity.

68

Criminal Law Act 1967, s 6(3), the Criminal Justice Act 1988, s 40, and the Crime and Disorder Act 1998, ss 31(6) and 32(5).

69

Crown Prosecution Service, Racist and Religious Hate Crime - Prosecution Guidance (21 October 2020).

70

Sentencing Advisory Panel, Advice to the Court of Appeal - 4: Racially Aggravated Offences (2000). See also the Sentencing Council, Assault - Definitive Guideline (2011), which at pp 9, 15 and 25 states that the two-stage approach should be applied to three offences under the Crime and Disorder Act 1998, s 29.

71

  Kelly [2001] EWCA Crim 170, [2001] 2 Cr App R (S) 73 is the leading case.

72

  Kelly [2001] EWCA Crim 170, [2001] 2 Cr App R (S) 73 at [64].

73

R v Fitzgerald [2003] EWCA Crim 2875. See also Bailey [2011] EWCA Crim 1979: racist comments were spray painted onto a vehicle: this was not criminal damage plus an element of racial aggravation - it was racist abuse committed by way of criminal damage, and a two-stage approach would be inappropriate.

74

Eg Reil [2006] EWCA Crim 3141 at [12], in relation to assault occasioning actual bodily harm: since the base maximum is 5 years and the aggravated 7, the increase was limited to 2 years. However, the SAP guidelines said at paras 19 to 23 that the differential increases in the maximum penalties, as set by Parliament, carry no special significance.

75

This guidance came into effect on 1 January 2020. See Sentencing Council, Public Order Offences (25 September 2019), available at https://www.sentencingcouncil.org.uk/sentencing-and-the-council/about-sentencing-guidelines/about-published-guidelines/public-order-offences/.

76

Crime and Disorder Act 1998, s 31(1)(b)). The base offence is Public Order Act 1986, s 4A.

77

See statistics outlined in our consultation paper: Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 16.15.

78

Sentencing Council, Disorderly behaviour with intent to cause harassment, alarm or distress/ Racially or religiously aggravated disorderly behaviour with intent to cause harassment, alarm or distress (effective 1 January 2020), available at https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/disorderly-behaviour-with-intent-to-cause-harassment-alarm-or-distress-racially-or-religiously-aggravated-disorderly-behaviour-with-intent-to-cause-harassment-alarm-or-distress/

79

  Crime and Disorder Act 1998, s 31(1)(a), Public Order Act 1986, s 4

80

  Criminal Justice Act 1988, ss 35 and 36. The Court of Appeal may substitute a different sentence (higher or

lower).

81

Criminal Justice Act 1988 (Review of Sentencing) Order 2006, sch 1.

82

See R v O’Leary [2015] EWCA Crim 1306; [2016] 1 Cr App R (S) 11. We discuss the case in greater detail in Chapter 8 of this report from paragraph 8.240.

83

However, where the offence is one that could be racially or religiously aggravated, the Court will not apply the sentence uplift if the defendant has been charged with the racially or religiously aggravated form of the offence and acquitted.

84

  Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, para 3.104.

85

  We discuss recording of the enhanced sentence on the Police National Computer in further detail in Chapter

8 of this report at para 8.16.

86

  Sentencing Code, s 57.

87

  Sentencing Code, s 63.

88

  Unless it is contrary to the interests of justice to do so: Coroners and Justice Act 2009, s 125(1).

89

  Sentencing Code, s 230(6) provides that courts must consider all mitigating and aggravating factors when

imposing discretionary custodial sentences.

90

Sentencing Code, s 52(2).

91

See R v Newton (1983) 77 Cr App R 13.

92

  Detailed guidance is set out in R v Underwood [2004] EWCA Crim 2256; [2005] 1 Cr App R 13.

93

  Sentencing Code, s 66(6)(a).

94

  Sentencing Code, s 66(6)(b).

95

  Sentencing Code, s 66(6)(d).

96

  [2013] EWCA Crim 291. We consider the inclusion of asexual people in Chapter 4 at paras 4.114 to 4.152.

97

  In the Committee of the Whole House on the Bill for the Legal Aid, Sentencing and Punishment of Offenders

Act 2012 - which inserted section 146(6) of the Criminal Justice Act 2003 - the Minister of State, Ministry of Justice, Lord McNally said “... I should be clear that ‘transgender’ is an umbrella term that includes, but is not restricted to, being transsexual”, see Hansard (HL), 7 February 2012, vol 735, col 153. We consider revision of this definition in Chapter 4 from paragraph 4.153.

98

Sentencing Code, s 66(6)(c).

99

Kelly [2001] EWCA Crim 170, [2001] 2 Cr App R (S) 73. The guidance related to the aggravated offences and also to Crime and Disorder Act 1998, s 82 (which provided for racial aggravation to increase sentences for offences other than the aggravated offences, and was repealed and re-enacted in the Criminal Justice Act 2003, s 145).

100

Kelly [2001] EWCA Crim 170, [2001] 2 Cr App R (S) 73 at [65]. See also Re A-G’s Reference (No 92 of 2003) [2004] EWCA Crim 924, The Times 21 Apr 2004 at [17] and following.

101

See also Saunders [2000] 1 Cr App R 458, 2 Cr App R (S) 71 at [18]: “the same offensive remark is likely to attract a heavier penalty if uttered in a crowded church, mosque or synagogue than if uttered in an empty public house” by Rose LJ.

102

Kelly [2001] EWCA Crim 170, [2001] 2 Cr App R (S) 73 at [65]. Many of these factors are set out in the earlier Court of Appeal decision in Saunders [2000] 1 Cr App R 458 at [18].

103

Kelly [2001] EWCA Crim 170, [2001] 2 Cr App R (S) 73 at [66].

104

Sentencing Council, General guideline: overarching principles (effective from 1 October 2019), available at https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/general-guideline-overarching-principles/.

105

Sentencing Council, General guideline: overarching principles (effective from 1 October 2019).

106

As well as the effects of the defendant’s previous convictions, any plea of guilty and whether the offence was committed on bail.

107

  Sentencing Code, s 52.

108

  Sentencing Code, s 322(4).

109

Sullivan [2004] EWCA Crim 1762, [2005] 1 Cr App R 3 at [11]. See also Last [2005] EWCA Crim 106, [2005] 2 Cr App R (S) 64 at [16].

110

Sentencing Code, s 322(4)(b).

111

Davies [2008] EWCA Crim 1055, [2009] 1 Cr App R (S) 15 at [14] by Lord Phillips CJ: “The distinction between the factors that call for a 30 year starting point and those that call for a 15 year starting point is no less significant than that which has to be considered by a jury when distinguishing between alternative offences ... It would be anomalous if the same standard of proof did not apply in each case.”

112

Sentencing Code, Sch 21, paras 7, 9, 3(2)(g) and 3(2)(h).

113

  [2008] EWCA Crim 769, [2009] 1 Cr App R (S) 2.

114

The full list in in section 3(1) of the Assaults on Emergency Workers (Offences) Act 2018 is: a constable; a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes; a National Crime Agency officer; a prison officer; a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer; a prisoner custody officer, so far as relating to the exercise of escort functions; a custody officer, so far as relating to the exercise of escort functions; a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services; a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both); a person employed for the purposes of providing, or engaged to provide NHS health services, or services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.

115

Defined in section 67(3) of the Sentencing Code as an offence under any of the following provisions of the Offences against the Person Act 1861: section 16 (threats to kill); section 18 (wounding with intent to cause grievous bodily harm); section 20 (malicious wounding); section 23 (administering poison etc); section 28 (causing bodily injury by explosives); section 29 (using explosives etc with intent to do grievous bodily harm); section 47 (assault occasioning actual bodily harm); and, an offence under section 3 of the Sexual Offences Act 2003 (sexual assault); manslaughter; kidnapping; an inchoate offence in relation to any of the preceding offences.

116

Sentencing Code, s 67(2)

117

Ministry of Justice, Press release: Government to introduce 'Harper’s Law' (24 November 2021), available at https://www.gov.uk/govemment/news/govemment-to-introduce-harper-s-law.

118

Football (Offences) Act 1991, s 3(2)(a). See Chapter 11 for further discussion.

119

Football (Offences) Act 1991, s 3(2)(b).

120

Football Spectators Act 1989, Sch 1.

121

Football (Offences) Act 1991, s 5(2).

122

Football Spectators Act 1989, Sch 1, para m.

123

See Sentencing Code, s 66.

124

A Ashworth (2010) Sentencing and Criminal Justice (5th ed) p 80.

125

“Bus Boycott by West Indians: Company’s Refusal to Employ Man” (3 May 1963), The Times.

126

Sir Leslie Scarman (1974), The Red Lion Square Disorders of 15 June 1974.

127

Ealing London Borough Council v Race Relations Board (1972) AC 342.

128

Race Relations Act 1976, ss 3(1) and 70(2).

129

Criminal Law: Offences Relating to Public Order (1983) Law Com 123.

130

The Law Relating to Public Order, Fifth report from the Home Affairs Committee (1979-80), HC 756 para 95.

131

Review of Public Order Law (1985) Cmnd 9510, paras 6.5 to 6.12.

132

A T H Smith, Offences Against Public Order (1st ed 1987) para 9-01. The effect of these amendments was summed up in the third reading debate, Hansard (HC) 30 Apr 1986, vol 96, col 1064.

133

Hansard (HC), 30 Apr 1986, vol 96, cols 1053 to 1054.

134

Amendment made 30 Apr 1986: Hansard (HC), 30 Apr 1986, vol 96, col 1050.

135

Public Order Act 1986, s 18(5).

136

Public Order Act 1986, ss 18(2), (4).

137

The Bills that became Race Relations Act 1965, Race Relations Act 1976, Public Order Act 1986, Crime and Disorder Act 1998, Anti-Terrorism, Crime and Security Act 2001, and Serious Organised Crime and Police Act 2005.

138

Hansard (HL), 10 Dec 2001, vol 629, col 1169.

139

Second reading, Lynne Jones, Hansard (HC), 21 Jun 2005, vol 435, col 669.

140

Public Bill Committee, Hansard (HC), 29 Nov 2007, cols 681 to 710.

141

Public Bill Committee, Hansard (HC), 29 Nov 2007, col 692.

142

Hansard (HL), 21 Apr 2008, vol 700, col 1365.

143

 Hansard (HC), 6 May 2008, vol 475, cols 599 to 625. See col 599.

144

 Hansard (HL), 7 May 2008, vol 701, cols 614 to 615.

145

 Hansard (HC), 9 Jan 2008, vol 470, col 437.

146

 Public Order Act 1986, s 18. The equivalent offence for religion or sexual orientation is at s 29B.

147

 Public Order Act 1986, s 19. The equivalent offence for religion or sexual orientation is at s 29C.

148

 Public Order Act 1986, s 20. The equivalent offence for religion or sexual orientation is at s 29D.

149

 Public Order Act 1986, s 21. The equivalent offence for religion or sexual orientation is at s 29E.

150

 Public Order Act 1986, s 22. The equivalent offence for religion or sexual orientation is at s 29F.

151

 Public Order Act 1986, s 23. The equivalent offence for religion or sexual orientation is at s 29G.

152

We discuss the meaning of “likely to” in more detail in Chapter 10.

153

R v Sheppard [2010] EWCA Crim 65.

154

Public Order Act 1986, s 19.

155

R v Lawrence Burns [2017] EWCA Crim 1466.

156

See, for example, R Card, Public Order Law (2000) p 186, pointing out that the offences would have been easier to prove if only hostility or ill-will had been intended, that hatred, at a minimum, connotes “intense dislike, enmity or animosity” and that the act of stirring up hatred is “a much stronger thing than simply bringing into ridicule or contempt, or causing ill-will or bringing into distaste.”

157

Public Order Act 1986, s 17.

158

Again, substituting the word “hatred” for the word “hostility”.

159

Public Order Act 1986, s 29A.

160

Public Order Act 1986, s 29AB.

161

Public Order Act 1986, s 29J.

162

Public Order Act 1986, s 29JA.

163

See R v Ali, Javed, and Ahmed (2012) 720110109 (Derby Crown Court, Feb 10).

164

Public Order Act 1986, s 18(2).

165

Public Order Act 1986, s 18(4).

166

Public Order Act 1986, s 4(2).

167

Public Order Act 1986, ss 27(1) and 29L.

168

Evidence given by the then Attorney General, Lord Goldsmith QC, to the Select Committee on Religious Offences on 16 January 2003, at paras 641 and 651.

169

Geoffrey Bindman, “Bringing race bigots to book” (20 October 1993) The Guardian.

170

persons-onreHgious-groujTds-or-groujTds-of-sexua^

171

R v Bitton [2019] EWCA Crim 1372.

172

R v Davison [2020] EWCA Crim 665.

173

R v Smith (Wallace Duncan) (No. 4) [2004] EWCA Crim 631.

174

R v Burns [2017] EWCA Crim 1466.

175

Abusive and Offensive Online Communications: Scoping Report (2018) Law Com No 381, para 9.29.

176

R v Sheppard [2010] EWCA Crim 65, [2010] 1 WLR 2779 at [32] by Scott Baker LJ.

177

Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, para 2.51. The decision in R v Burns is explained in greater detail at paragraphs 4.109 to 4.113 of the consultation paper.

178

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018). Available at https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/.

179

Hate Crime and Public Order (Scotland) Bill, available at https://www.parliament.scot/bills-and-laws/bills/hate-crime-and-public-order-scotland-bill.

180

Hate Crime and Public Order (Scotland) Act 2021, available at

https://www.legislation.gov.uk/asp/2021/14/contents/enacted.

181

Detailed discussion of the principles of the Bill can be found in Justice Committee, Stage 1 Report on the Offences (Aggravation by Prejudice) (Scotland) Bill (6th Report, 2009).

182

Defined as a “physical or mental impairment of any kind”: s 1(7). Section 1(8) adds that “a medical condition which has (or may have) a substantial or long-term effect, or is of a progressive nature, is to be regarded as amounting to an impairment”.

183

Defined as “sexual orientation towards persons of the same sex or of the opposite sex or towards both”: s 2(7).

184

Defined as “(a) transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004, changed gender, or (b) any other gender identity that is not standard male or female gender identity”: s 2(8)(a).

185

The test is now found in section 1 of the Hate Crime and Public Order (Scotland) Act 2021.

186

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 17.

187

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) pp 56 to

68.

188

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 43.

189

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) pp 44 to

49.

190

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) pp 50 to 54.

191

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) pp 20 and 49.

192

One Scotland: consultation on current hate crime legislation (14 November 2018), available at

https://www.gov.scot/publications/one-scotland-hate-home-here-consultation-hate-crime-amending-current-scottish-hate-crime-legislation/pages/2/.

193

Hate Crime and Public Order (Scotland) Bill Policy Memorandum (2020) p 1. Available at

https://www.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/introduced/policy-memorandum-hate-crime-and-public-order-scotland-bill.pdf.

194

Hate Crime and Public Order (Scotland) Bill Policy Memorandum (2020) p 17.

195

Hate Crime and Public Order (Scotland) Act, s 1(1)(a).

196

Hate Crime and Public Order (Scotland) Act, s 1(1)(b).

197

Hate Crime and Public Order (Scotland) Act, s 1(2).

198

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) pp 16 to 17.

199

 Hate Crime and Public Order (Scotland) Act, s 1(1)(a).

200

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 23.

201

 Hate Crime and Public Order (Scotland) Act, s 1(1)(a)(ii).

202

 Hate Crime and Public Order (Scotland) Act, s 3(1).

203

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 90.

204

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 89, para

7.23.

205

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 68.

206

Public Order Act 1986, s 18(2).

207

 Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 68.

208

 Hate Crime and Public Order (Scotland) Bill Policy Memorandum (2020) p 38.

209

 Hate Crime and Public Order (Scotland) Act, s 4(2).

210

 Hate Crime and Public Order (Scotland) Act, s 4(1)(a).

211

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 68.

212

Hate Crime and Public Order (Scotland) Act, s 4(2)(b).

213

Hate Crime and Public Order (Scotland) Act, s 11.

214

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 43.

215

Hate Crime and Public Order (Scotland) Act, s 12.

216

See Misogyny and Criminal Justice in Scotland Working Group, available at

https://www.gov.scot/groups/misogyny-and-criminal-justice-in-scotland-working-group/.

217

Hate Crime and Public Order (Scotland) Act, s 11(8).

218

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 49.

219

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 48, para

4.66.

220

Hate Crime and Public Order (Scotland) Act, s 1(2).

221

Hate Crime and Public Order (Scotland) Act, s 4(2).

222

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 68.

223

Hate Crime and Public Order (Scotland) Bill, ss 11 and 12. Available at https://www.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/introduced/bill-as-introduced-hate-crime-and-public-order-bill.pdf.

224

Hate Crime and Public Order (Scotland) Bill, Marshalled List of Amendments for Stage 2, s 82. Available at https://www.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/stage-2/second-marshalled-list-of-amendments-at-stage-2.pdf.

225

Hate Crime and Public Order (Scotland) Bill, Marshalled List of Amendments for Stage 3, s 11. Available at https://www.parliament.scot/-/media/files/legislation/bills/current-bills/hate-crime-and-public-order-scotland-bill/stage-3/marshalled-list-of-amendments-at-stage-3.pdf.

226

Hate Crime and Public Order (Scotland) Act, s 9.

227

Sections 2(3)(a)(i) to (iv).

228

Sections 2(3)(b)(i) to (iv).

229

Section 8 Public Order (Northern Ireland) Act 1987 as amended by the Criminal Justice (Northern Ireland) Order 2004, s 3.

230

Section 9 Public Order (Northern Ireland) Act 1987.

231

Review of Hate Crime Legislation launched (June 2019), available at https://www.justice-ni.gov.uk/news/review-hate-crime-legislation-launched.

232

Long welcomes completion of review into hate crime legislation (November 2020), available at https://www.justice-ni.gov.uk/news/long-welcomes-completion-review-hate-crime-legislation.

233

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020)

Recommendation 2, p 10. Available at https://www.justice-

ni.gov.uk/sites/default/files/publications/justice/hate-crime-review.pd1.

234

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 3, p 10.

235

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 5, p 11.

236

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 6, p 11.

237

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 9, p 19.

238

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 9, p 19.

239

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 10, p 19.

240

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 11, p 19.

241

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 7, p 12. The draft offence read: “Any offence (the basic offence) may be aggravated in relation to (one or more of the protected characteristics) for the purposes of this section...”.

242

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 13, p 22.

243

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 14, p 29.

244

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 14, p 29.

245

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 14, p 29.

246

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 14, p 29.

247

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendations 16 to 22, pp 34 to 35.

248

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 31, p 46.

249

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 33, p 47.

250

 Prohibition of Incitement to Hatred Act 1989 (Ire), s 2.

251

 Prohibition of Incitement to Hatred Act 1989 (Ire), s 3.

252

 Prohibition of Incitement to Hatred Act 1989 (Ire), s 4.

253

Legislating for Hate Speech and Hate Crime in Ireland, Report on the Public Consultation 2020. Available at http://www.justice.ie/en/JELR/Legislating for Hate Speech and Hate Crime in Ireland Web.pdf/Files/Le gislating for Hate Speech and Hate Crime in Ireland Web.pdf.

254

Legislating for Hate Speech and Hate Crime in Ireland, Report on the Public Consultation 2020, p 38.

255

Criminal Justice (Hate Crime) Bill 2021, available at

http://www.justice.ie/en/JELR/General Scheme Criminal Justice (Hate Crime) Bill 2021.pdf/Files/Genera l Scheme Criminal Justice (Hate Crime) Bill 2021.pdf.

256

“Disability” is defined as (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body; (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness; (c) the malfunction, malformation or disfigurement of a part of a person’s body; (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or; (e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour: s 2(1), Equal Status Act 2000.

257

 Non-Fatal Offences Against the Person Act 1997, s 2.

258

 Non-Fatal Offences Against the Person Act 1997, s 3.

259

 Non-Fatal Offences Against the Person Act 1997, s 4.

260

 Non-Fatal Offences Against the Person Act 1997, s 5.

261

 Non-Fatal Offences Against the Person Act 1997, s 9.

262

 Non-Fatal Offences Against the Person Act 1997, s 10.

263

 Non-Fatal Offences Against the Person Act 1997, s 13.

264

Criminal Damage Act 1991, s 2.

265

 Criminal Justice (Public Order) Act 1994, s 6.

266

 Criminal Justice (Public Order) Act 1994, s 7.

267

 Criminal Justice (Public Order) Act 1994, s 11.

268

 Criminal Justice (Public Order) Act 1994, s 18.

269

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, available at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2020/10/Hate-crime-final-report.pdf.

270

   Sentencing Act 1991 (Vic), s 5(2).

271

  Sentencing Act 1995 (NT), s 6A(e)

272

As we note in our consultation paper, in two cases in the state of New South Wales, the open approach in that state has led to the recognition of “paedophiles”. These were the cases of R v Robinson [2004] NSWSC 465 (Supreme Court of NSW) and Dunn v The Queen [2007] NSWCCA 312 (Court of Criminal Appeal of NSW). See further Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 181.

273

Including the Bar Council, the Crown Prosecution Service, Index on Censorship, Victim Support, British Transport Police, The Jo Cox Foundation, Stonewall, TransActual UK, Antisemitism Policy Trust, the Welsh Government, the Law Society, the Magistrates Association, the National Police Chiefs’ Council, the Equality and Human Rights Commission, Equally Ours, English PEN and The London Mayor’s Office for Policing and Crime (“MOPAC”).

274

Including Christian Concern, Lovewise, Families Need Fathers Ltd, Gender Parity UK, Civitas and Men and Women Working Together.

275

Association of Police and Crime Commissioners (APCC).

276

Professor Mark Walters.

277

Our terms of reference specifically ask us to consider “the implications of any recommendations for other areas of law including the Equality Act 2010.”

278

  A London-based student-led project dedicated to addressing the pervasive problem of hate crime through

sustainable social justice.

279

See for example the case of Sophie Lancaster that we discuss in more detail in our consultation paper: Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 13.

280

Crime and Disorder Act 1998, s 28(4); Sentencing Code, s 66(6)(a). See also the definition of “racial hatred” in section 17 of the Public Order Act 1986, which applies for the purposes of the offences of stirring up racial hatred under Part 3 of this Act. We discuss these in greater detail in Chapter 10.

281

R v Rogers [2007] UKHL 8, [2007] 2 AC 62.

282

  Rogers [2007] UKHL 8, [2007] 2 AC 62, [12] by Baroness Hale.

283

  Mandla v Dowell Lee [1983] 2 AC 548, [1983] 2 WLR 620.

284

  Commission for Racial Equality v Dutton [1989] QB 783, [1989] 2 WLR 17.

285

O’Leary v Punch Retail (29 Aug 2000) (unreported) as cited in Blackstone’s para B11.150.

286

  [2005] EWCA Crim 889.

287

Equality Act 2010, Explanatory Notes, EN 49.

288

See, eg, Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912, referred to in more detail below.

289

See Equality Act 2010, s 9(5), as amended by section 97 of the Enterprise and Regulatory Reform Act 2013, set out at paragraph 4.10.

290

  Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.

291

  Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912, at [51].

292

  Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912, at [10].

293

  Government Equalities Office, Caste in Great Britain and equality law: a public consultation (2018), available

at

https://assets.publishing.service.gov.uk/govemment/uploads/system/uploads/attachment data/file/727790/C aste in Great Britain and equality law-consultation response.pdf.

294

Government Equalities Office, Caste in Great Britain and equality law: a public consultation (2018) p 14, available at

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/727790/C aste in Great Britain and equality law-consultation response.pdf.

295

  Naveed v Aslam [2012] WL 12296514, at [27].

296

Government Equalities Office, Caste in Great Britain and equality law: a public consultation (2018) p 15, available at

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/727790/C aste in Great Britain and equality law-consultation response.pdf.

297

Crown Prosecution Service, Racist and Religious Hate Crime - Prosecution Guidance (21 October 2020), available at https://www.cps.gov.uk/legal-guidance/racist-and-religious-hate-crime-prosecution-guidance.

298

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 11.41.

299

Chandhok & Anor v Tirkey [2014] UKEAT 0190_14_1912.

300

  [2013] UKSC 77, [34].

301

  [2013] UKSC 77, [57].

302

See Chapter 7.

303

  Equality Act 2010, s 10.

304

See David Torrance, “UK Government’s adoption of the IHRA definition of antisemitism” (4 October 2018)

House of Commons Library, available at https://commonslibrary.parliament.uk/uk-governments-adoption-of-the-ihra-definition-of-antisemitism/.

305

Smyth [2017] NIQB 55 (9 June 2017); R (Harrison and others) v Secretary of State for Justice [2020] EWHC 2096 (Admin).

306

  (R) Fox v Secretary of State for Education [2015] EWHC 3404 (Admin); Curriculum and Assessment

(Wales) Act 2021, s 61(3)(b).

307

As we noted in our consultation paper, statistics produced by the Home Office show that the most targeted religious groups are Muslims (47% of police recorded religious hate crime) and Jews (17% of recorded religious hate crime), followed by Christians (7%), Sikhs (3%) and Hindus (2%). See Home Office, Hate Crime, England and Wales, 2018 to 2019 (15 October 2019) p 16, available at https://assets.publishinq.service.qov.uk/qovernment/uploads/svstem/uploads/attachment data/file/839172/h ate-crime-1819-hosb2419.pdf. The more recent statistics follow a similar pattern and show thatthe most tarqeted reliqious qroups are Muslims (50% of police recorded reliqious hate crime) and Jews (19% of recorded reliqious hate crime), followed by Christians (9%), Sikhs (3%) and Hindus (2%). See Home Office, Hate Crime, England and Wales, 2019 to 2020 (15 October 2019) p 11, available at https://assets.publishinq.service.qov.uk/qovernment/uploads/svstem/uploads/attachment data/file/925968/h ate-crime-1920-hosb2920.pdf.

308

R v Secretary of State for Education ex parte Williamson [2005] UKHL 15, [24].

309

H v United Kingdom (Application 18187/91). The UK Government did not contest that veganism was capable of concerning belief within the meaning of Article 9 of the Convention.

310

Public Order Act 1986, s 29B.

311

See R v B [2013] EWCA Crim 291; [2013] 2 Cr. App. R. (S.) 69 (CA (Crim Div)).

312

Equality Act 2010, s 12(1).

313

  A F Bogaert, Understanding Asexuality (Lanham, MD: Rowman & Littlefield Publishers, 2012).

314

  J Decker, The Invisible Orientation: An Introduction to Asexuality (Skyhorse Publishing, New York, 2014).

315

Brotto, L.A., Yule, M. “Asexuality: Sexual Orientation, Paraphilia, Sexual Dysfunction, or None of the Above?” (2017) 46 Arch Sex Behav 619.

316

K Stock, “Sexual Orientation: What Is It?” (2019) 119(3) Proceedings of the Aristotelian Society 295-319, p 300.

317

Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, p 163.

318

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 11.70.

319

Stonewall defined “Ace” as follows: “An umbrella term used specifically to describe a lack of, varying, or occasional experiences of sexual attraction. This encompasses asexual people as well as those who identify as demisexual and grey-sexual. Ace people who experience romantic attraction or occasional sexual attraction might also use terms such as gay, bi, lesbian, straight and queer in conjunction with asexual to describe the direction of their romantic or sexual attraction.” See Stonewall, Glossary of Terms, available at: https://www.stonewall.org.uk/help-advice/faqs-and-glossary/glossary-terms.

320

Brunning and McKeever, “Asexuality” (13 October 2020) Journal of Applied Philosophy. Available at: https://onlinelibrary.wiley.com/doi/full/10.1111/japp.12472.

321

At the time it was introduced as section 146(6) of Criminal Justice Act 2003 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This provision has since been shifted to section 66(1)(e) of the Sentencing Code.

322

See Hansard (HL), 7 February 2012, vol 735, col 153.

323

See Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, para 6.75.

324

  Hate Crime and Public Order (Scotland) Act 2021, s 11(7).

325

  Hate Crime and Public Order (Scotland) Act 2021, s 11(8).

326

Taylor v Jaguar Land Rover Ltd (2020), Employment Tribunal decision: 1304471/2018, [178]. See https://assets.publishing.service.gov.uk/media/5fc8d559d3bf7f7f5c134ad3/Ms R Taylor v Jaguar Land R over Limited - 1304471.2018 - Reasons.pdf.

327

  See Intersex: New Interdisciplinary Approaches (2021) available at https://www.intersexnew.co.uk/.

328

For example, the West Midlands Police and Crime Commissioner, the Magistrates Association, the National Police Chiefs’ Council (“NPCC”), Mishcon de Reya LLP, Stonewall, MOPAC, Hampshire Constabulary, Brandon Trust, the Government Independent Advisory Group on Hate Crime, the Office of the Police and Crime Commissioner for Nottinghamshire, Nottingham City Council, National AIDS Trust, Protection Approaches, TransOxford, Devon & Cornwall Police and the Alan Turing Institute.

329

  [2020] EWHC 225 (Admin).

330

Forstater v CGD Europe (2021), Appeal No.UKEAT/0105/20/JOJ. See

https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya Forstater v CGD Europ e and others UKEAT0105 20 JOJ.pdf.

331

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para11.11.

332

Abusive and Offensive Online Communications: A Scoping Report (2018) Law Commission Report No 381; Modernising Communications Offences: A Final Report (2021) Law Commission Report No 399.

333

Modernising Communications Offences: A Final Report (2021) Law Commission Report No 399.

334

Taylor v Jaguar Land Rover Ltd, the Employment Tribunal (14 September 2020) Case No 1304471/2018, para 178.

335

Forstater v CGD Europe (10 June 2021) Appeal No.UKEAT/0105/20/JOJ, para 114. Available at https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya Forstater v CGD Europ e and others UKEAT0105 20 JOJ.pdf.

336

Hate Crime and Public Order Act (Scotland) 2021, s 11(8).

337

Sex Discrimination Act 1984 (Cth), s 5C; Anti-Discrimination Act 1998 (Tas), s 16, Equal Opportunity Act 1984 (SA), s 29(4).

338

Discrimination Act 1991 (ACT), s 7(1)(v); Equal Opportunity Act 2010 (Vic), s 6(oa).

339

Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (SA), s 1.

340

  Sentencing Code, s 66(6)(d).

341

  Equality Act 2010, s 6(1).

342

Specifically, the model distinguishes between “impairment” and “disability”. It recognises that people with impairments are disabled by barriers that commonly exist in society. These barriers include negative attitudes, and physical and organisational barriers, which can prevent disabled people’s inclusion and participation in all walks of life. See further: Welsh Government, Action on Disability: The Right to Independent Living (2019) available at https://gov.wales/sites/defaylt/files/pyblications/2019-09/actionzonz disability-the-right-to-independent-living-framework-and-action-plan.pdf.

343

Crown Prosecution Service, Disability Hate Crimes and other crimes against disabled people (15 August

2018), available at https://www.cps.gov.uk/legal-guidance/disability-hate-crime-and-other-crimes-against-disabled-people-prosecution-guidance.

344

The Office of the Police and Crime Commissioner for Northumbria; The Magistrates Association; The APCC.

345

Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, p 159.

346

Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, p 159.

Law Commission website, Hate Crime https://www.lawcom.gov.uk/project/hate-crime/.

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, Consultation Question 11, para 12.194.

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, Consultation Question 11, para 12.194. The content of Chapter 12 of our consultation paper is further summarised as paragraphs 5.25 to 5.33.

347

In this report, we recommend that all existing hate crime characteristics should be protected in the aggravated offences and enhanced sentencing regime (see further Chapter 8), as well as the stirring up offences (see Chapter 10).

348

In addition to the five protected characteristics that are recognised by hate crime laws in England and Wales, local police forces also record crimes accompanied by hostility towards victims’ other personal characteristics as hate crime; see Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services,

349

Understanding the difference, The initial police response to hate crime (July 2018) p 91, available at https://www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/understanding-the-difference-the-initial-police-response-to-hate-crime.pdf.

350

L Mullany and L Trickett, Misogyny Hate Crime Evaluation Report (Nottingham’s Women’s Centre, 2018) p

3, available at https://www.nottingham.ac.uk/lipp/documents/misogyny-evaluation-report.pdf.

L Mullany and L Trickett, Misogyny Hate Crime Evaluation Report (Nottingham’s Women’s Centre, 2018) p

3.

351

Northamptonshire Community Safety, Hate crime or hate incidents, available at

https://www.northamptonshire.gov.uk/councilservices/fire-safety-and-emergencies/community-saety/Pages/haeclimeor-hae-nddentsaspx.

352

North Yorkshire Police, Fire and Crime Commissioner, “Misogyny recognised as a hate crime in North Yorkshire” (10 May 2017), available at https://www.northyorkshire-pfcc.gov.uk/news/misogyny-recognised-hate-crime-north-yorkshire/.

353

Avon and Somerset Police, “Gender hate crime now recognised in Avon and Somerset” (16 October 2017).

354

BBC News, “Sarah Everard murder: Met PC Wayne Couzens pleads guilty” (9 July 2021) https://www.bbc.co.uk/news/uk-england-london-57774597.

355

Jaymi McCann “Labour urges Government to make misogyny a hate crime in a bid to tackle violence against women” iNews (13 March 2021) available at: https://inews.co.uk/news/politics/labour-urges-government-to-make-misogyny-a-hate-crime-in-bid-to-tackle-violence-against-women-912824.

356

Amanda Taub, “In Rage Over Sarah Everard Killing, ‘Women’s Bargain’ Is Put on Notice”, The New York Times (15 March 2021) available at https://www.nytimes.com/2021/03/14/world/europe/sarah-everard-women-protest.html; BBC News, “How a woman’s death sparked a nation’s soul-searching” (14 March 2021) available at https://www.bbc.co.uk/news/uk-56384600.

357

BBC News, “Sarah Everard: How a woman's death sparked a nation's soul-searching” (11 March 2021) available at: https://www.bbc.co.uk/news/uk-56384600.

358

  Hansard (HL), 17 Mar 2021 vol 811, col 370.

359

  Hansard (HL), 17 Mar 2021 vol 811, col 370.

360

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) Recommendation 9, p 43, available at https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/.

361

For further details see Misogyny and Criminal Justice in Scotland Working Group:

https://www.gov.scot/groups/misogyny-and-criminal-justice-in-scotland-working-group/.

362

Hate crime legislation in Northern Ireland Independent Review (November 2020) at para 7.138, available at https://www.justice-ni.gov.uk/sites/default/files/publications/justice/hate-crime-review.pdt.

363

See Criminal Justice (Hate Crime) Bill 2021, Head 2 (Interpretation), available at:

http://www.justice.ie/en/JELR/General Scheme Criminal Justice (Hate Crime) Bill 2021.pdf/Files/Genera l Scheme Criminal Justice (Hate Crime) Bill 2021.pdf.

364

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.32 to 12.75.

365

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.86 to 12.113.

366

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250 paras 12.117 to 12.118.

367

J M Maher, J McCulloch and G Mason, “Punishing Gendered Violence as Hate Crime: Aggravated Sentences as a Means of Recognising Hate as Motivation for Violent Crimes against Women” (2015) 41 Australian Feminist Law Journal 177. See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.119 to 12.120 for our discussion of this.

368

The term “real rape” was used by Susan Estrich in 1987, see S Estrich, Real Rape (1st ed 1987). For further discussion, see para 12.119 of our consultation paper.

369

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 12.121.

370

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.122 to 12.127.

371

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.128 to 12.136.

372

HM Government, The end-to-end rape review report on findings and actions CP 437 (June 2021) available at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/1001417/ end-to-end-rape-review-report-with-correction-slip.pdf; Centre for Women’s Justice, End Violence Against Women Coalition, Imkaan and Rape Crisis England and Wales, The Decriminalisation of Rape” (November 2020), available at https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/C-Decriminalisation-of-Rape-Report-CWJ-EVAW-IMKAAN-RCEW-NOV-2020.pdf; Clare Waxman, The London Rape Review, Reflections and Recommendations (July 2019), available at https://www.london.gov.uk/sites/default/files/rape review - final - web.pdf.

373

Women’s Budget Group, Life-Changing and Life-Saving, Funding for the women’s sector (December 2018) pp 12 to 17, available at https://wbg.org.uk/wp-content/uploads/2018/12/WBG-Funding-Report-2.pdf.

374

HM Government, The end-to-end rape review report on findings and actions CP 437 (June 2021) para 51; VAWG sector statement on COVID-19, available at https://www.womensaid.org.uk/vawg-sector-statement-on-covid-19/.

375

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.137 to 12.140.

376

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 12.141.

377

Sentencing Council, Overarching principles: domestic abuse (24 May 2018), available at

https://www.sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/domestic-abuse/.

378

  We discussed how these carve outs might work at paras 12.142 to 12.176 of the consultation paper.

379

  We discussed some of the problems that the carve outs might cause at paras 12.177 to 12.185 of the

consultation paper.

380

We discussed these issues at paragraphs 12.197 to 12.222 of the consultation paper.

381

See Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) p 30, available at https://assets.publishing.service.gov.uk/govemment/uploads/system/uploads/attachment data/file/963156/C CE Operating with Impunity Accessible.pdf.

382

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 18.234 to 18.238.

383

PTSD is an acronym that refers to the psychological condition of post-traumatic stress disorder.

384

J Chandan, T Thomas, C Bradbury-Jones, R Russell, S Bandyopadhyay, K Nirantharakumar and J Taylor, “Female survivors of intimate partner violence and risk of depression, anxiety and serious mental illness” (2020) 217(4) The British Journal of Psychiatry 562.

385

  F Vera-Gray and B Fileborn (forthcoming), “Hiding the harm? An argument against misogyny hate crime” in

Landscapes of hate: spaces of abjection, discrimination and exclusion Catherine Donovan, Edward Hall, John Clayton (eds).

386

  F Vera-Gray and B Fileborn (forthcoming), “Hiding the harm? An argument against misogyny hate crime” in

Landscapes of hate: spaces of abjection, discrimination and exclusion Catherine Donovan, Edward Hall, John Clayton (eds) pp 9 to 10.

387

M Horvath, L Kelly, From the Outset: Why violence should be a priority for the Commission for Equality and Human Rights (End Violence Against Women, 2007) p 5.

388

  F Vera-Gray and B Fileborn (forthcoming), “Hiding the harm? An argument against misogyny hate crime” in

Landscapes of hate: spaces of abjection, discrimination and exclusion Catherine Donovan, Edward Hall, John Clayton (eds).

389

This argument was also used by Rape Crisis England & Wales to oppose any recognition of sex or genderbased hate crime, as cited at paragraph 5.121.

390

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.169 to 12.171.

391

L Kelly, Surviving Sexual Violence (Polity Press, 1988).

392

F Vera-Gray and B Fileborn (forthcoming), “Hiding the harm? An argument against misogyny hate crime” in Landscapes of hate: spaces of abjection, discrimination and exclusion Catherine Donovan, Edward Hall, John Clayton (eds).

393

See further “Teen who murdered boy while pregnant ‘boasting about being a man hater’” (26 March 2019)

The Scotsman, available at https://www.scotsman.com/news/crime/teen-who-murdered-boy-while-pregnant-boasting-about-being-man-hater-549144.

394

Council of Europe Convention on preventing and combating violence against women and domestic violence, CETS No.210, available at https://rm.coe.int/168008482e.

395

UN Convention on the Elimination of All Forms of Discrimination Against Women (signed 18 December 1979, entered into force 3 September 1981).

396

Cwm Taf People First is a charity for people with learning disabilities who live in the Rhondda-Cynon-Taff, Merthyr and Blaenau Gwent areas of Wales.

397

APPG for UN Women, Prevalence and reporting of sexual harassment in UK public spaces, (March 2021) available at https://www.unwomenuk.org/site/wp-content/uploads/2021/03/APPG-UN-Women-Sexual-Harassment-Report Updated.pdf; End Violence Against Women, Snapshot Report 2020/21 (January 2021), available at: https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/Violence-Against-Women-and-Girls-Snapshot-Report-FINAL-1.pdf; Department for Education, Sexual violence and sexual harassment between children in schools and colleges, (June 2021) pp 7 to 8, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/1014224/ Sexual violence and sexual harassment between children in schools and colleges.pdf.

398

See paragraphs 8.146 to 8.196.

399

L Mullany and L Trickett, Misogyny Hate Crime Evaluation Report (Nottingham’s Women’s Centre, 2018) p 12, available at https://www.nottingham.ac.uk/lipp/documents/misogyny-evaluation-report.pdf.

400

L Mullany and L Trickett, Misogyny Hate Crime Evaluation Report (Nottingham’s Women’s Centre, 2018) p 12.

401

L Mullany and L Trickett, Misogyny Hate Crime Evaluation Report (Nottingham’s Women’s Centre, 2018) p 12.

402

Centre for Women’s Justice, End Violence Against Women Coalition, Imkaan and Rape Crisis England and Wales, The Decriminalisation of Rape” (November 2020), available at https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/C-Decriminalisation-of-Rape-Report-CWJ-EVAW-IMKAAN-RCEW-NOV-2020.pdf.

403

HM Government, The end-to-end rape review report on findings and actions CP 437 (June 2021) para 51, available at https://www.gov.uk/government/publications/end-to-end-rape-review-report-on-findings-and-actions.

404

L Mullany and L Trickett, Misogyny Hate Crime Evaluation Report (Nottingham’s Women’s, Centre 2018) p

55, available at https://www.nottingham.ac.uk/lipp/documents/misogyny-evaluation-report.pdf.

405

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 10.145 to 10.147.

406

They also argued that such crimes were rarely connected to sex or gender-based hostility or prejudice towards men.

407

Modernising Communications Offences: A Final Report (2021) Law Com No 399, pp 24 to 75.

408

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 12.142.

409

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.177 to 12.185.

410

We made a similar argument in our consultation paper. See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.220 to 12.222.

411

  Miller v College of Policing [2020] EWHC 225 (Admin). We discuss this case further in Chapter 4 at para

4.216 and also in our consultation paper: Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 6.17.

412

Modernising Communications Offences: A Final Report (2021) Law Com No 399.

413

Malicious Communications Act 1988, s 1; Communications Act 2003, s 127.

414

See para 5.311.

415

Public Order Act 1986, ss 4, 4A and 5.

416

Protection from Harassment Act 1997 (PHA 1997), ss 2, 2A, 4 and 4A.

417

See Communications Act 2003, s 127 and Malicious Communications Act 1988, s 1.

418

For greater detail, see paragraph 5.27.

419

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.32 to 12.75.

420

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 12.86 to

12.113.

421

Centre for Women’s Justice, End Violence Against Women Coalition, Imkaan and Rape Crisis England and Wales, The Decriminalisation of Rape: Why the justice system is failing rape survivors and (November 2020), available at https://www.endviolenceagainstwomen.org.uk/wp-content/uploads/C-Decriminalisation-of-Rape-Report-CWJ-EVAW-IMKAAN-RCEW-NOV-2020.pdf.

422

Abusive and Offensive Online Communications: Scoping Report (2018) Law Com No 381, at paragraph 1.48.

423

Amnesty International UK, Amnesty reveals alarming impact of online abuse against women (20 November 2017), available at https://www.amnesty.org/en/latest/news/2017/11/amnesty-reveals-alarming-impact-of-online-abuse-against-women/.

424

L Thompson, ‘“I can be your Tinder nightmare”: Harassment and misogyny in the online sexual marketplace (2018) 28(1) Feminism and Psychology 69.

425

Amnesty International UK, Amnesty reveals alarming impact of online abuse against women (20 November 2017), available at https://www.amnesty.org/en/latest/news/2017/11/amnesty-reveals-alarming-impact-of-online-abuse-against-women/. In our 2015 report on Offences Against the Person, we recommended that the offence of threats to kill under the Offences Against the Person Act 1861 should be extended to cover threats to cause serious injury and threats to rape. See “Reform of Offences Against the Person”, Final Report (November 2015) Law Com No 361 at paras 8.11 to 8.12. This reform has not yet been implemented. In our 2021 report on Modernising Communications Offences we recommended that a specific offence of sending a threatening communication be created, which included threats to rape: see Modernising Communications Offences: A Final Report (2021) Law Com No 399, p 226.

426

  The specific problem of threats of sexual violence is discussed below at paragraph 5.399.

427

  In Chapter 9 we discuss the legal test for hate crime laws in more detail and note that the “demonstration of

hostility” test is far more commonly relied on by the prosecution.

428

Existing offences includes those contained in the PHA 1997, the POA 1986, the Malicious Communications Act 1988 and the Communications Act 2003 (noting that our report on ‘Modernising Communications Offences’ recommends a general harm-based communications offence to replace section 1 of the Malicious Communications Act 1988 and section 127(1) of the Communications Act 2003. See Modernising Communications Offences: A Final Report (2021) Law Com No 399, Chapter 6.).

429

Home Office, Tackling violence against women and girls strategy (July 2021) p 70, available at https://www.gov.uk/govemment/publications/tackling-violence-against-women-and-girls-strategy.

430

We note that offences associated with violence against women and girls, such as sexual offences and domestic abuse, also impact male victim-survivors, and victim-survivors of all gender-identities.

431

  The unsolicited sending of sexual images using digital technology.

432

Modernising Communications Offences: A Final Report (2021) Law Com No 399, Chapter 6. In Recommendation 8 at para 6.133, we recommended two alternative additional fault elements, requiring the prosecution to prove either: that the defendant intended to cause alarm, distress or humiliation; or that the defendant acted for the purpose of obtaining sexual gratification and was reckless as to whether the victim would be caused alarm, distress or humiliation.

433

Modernising Communications Offences: A Final Report (2021) Law Com No 399 at para 6.126. The existing exposure offence requires the prosecution to prove that the defendant intended to cause alarm or distress.

434

Modernising Communications Offences: A Final Report (2021) Law Com No 399, para 3.135, Recommendation 5.

435

Reform of Offences Against the Person, Final Report (November 2015) Law Com No 361 at paras 8.11 to 8.12.

436

Intimate image abuse: A consultation paper (2021) Law Com Consultation Paper No 253, available at: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2021/02/Intimate-image-abyse-consyltatton-paper.pdf

437

See Ministry of Justice, “Spotlight on domestic homicides as independent reviewer appointed” (9 September 2021), available at https://www.gov.uk/government/news/spotlight-on-domestic-homicides-as-independent-reviewer-appointed.

438

Home Office, Tackling violence against women and girls strategy (July 2021), available at

https://www.gov.uk/government/publications/tackling-violence-against-women-and-girls-strategy.

439

Home Office, Domestic abuse and sexual offences to be treated as seriously as knife crime (2 December 2021), available at https://www.gov.uk/government/news/domestic-abuse-and-sexual-offences-to-be-treated-as-seriously-as-knife-crime.

440

Equality Act 2010, s 5.

Crown Prosecution Service, Older People: Prosecuting Crimes Against (updated 30 April 2020), available at

441

https://www.cps.gov.uk/legal-guidance/older-people-prosecuting-crimes-against.

442

Florida Statute 775.085 (1)(a). Florida Statute 775.085 (1)(b) clarifies that “advanced age” means that the victim is older than 65 years of age.

443

District of Columbia, Iowa, Louisiana, Minnesota, Nebraska, New Mexico, New York, Texas and Vermont. Oregon protects “disability” which is defined to include “age”, see section 3, Senate Bill No. 577 of 2019, Oregon State Legislature.

444

Canadian Criminal Code s 718.2.a.i.

445

Sentencing Act 2002, s 9(1)(h).

446

   Hate Crime and Public Order (Scotland) Act 2021, s 1(2)(a).

447

   Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) available

at https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/.

448

   Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 49.

449

  Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 49 at

para 4.70.

450

Hate Crime and Public Order (Scotland) Act, s 4(2).

451

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) Recommendation 9, p 19.

452

Sentencing Guidelines Council, Overarching principles guidelines: Seriousness (December 2004) p 5 at para 1.17, available at https://www.sentencingcouncil.org.uk/wp-content/uploads/Seriousness-guideline.pdf.

453

See Courts and Tribunals Judiciary, “Revised sentencing guidelines for assault offences and attempted murder” (21 May 2021), available at https://www.judiciary.uk/announcements/revised-sentencing-guidelines-for-assault-offences-and-attempted-murder/.

454

See the sentencing guidelines for assault occasioning actual bodily harm / Racially or religiously aggravated ABH, Crime and Disorder Act 1998, s.29, Offences against the Person Act 1861, s.47 (effective from 1 July 2021), available at https://www.sentencingcouncil.org.uk/offences/crown-court/item/assault-occasioning-actual-bodily-harm-racially-or-religiously-aggravated-abh/.

455

  Crown Prosecution Service, Older people: Prosecuting Crimes against (updated 30 April 2020), available at

https://www.cps.gov.uk/legal-guidance/older-people-prosecuting-crimes-against.

456

Crown Prosecution Service, Policy guidance on the prosecution of crimes against older people (updated 15 July 2019), available at https://www.cps.gov.uk/publication/policy-guidance-prosecution-crimes-against-older-people-0.

457

Crown Prosecution Service, Child Abuse (non-sexual) - prosecution guidance (updated 14 February 2020), available at https://www.cps.gov.uk/legal-guidance/child-abuse-non-sexual-prosecution-guidance.

458

Section 5 of the Domestic Violence, Crime and Victims Act 2004 (2004).

459

Section 1 of the Children and Young Persons Act 1933.

460

Sections 1 and 2 of the Child Abduction Act 1984.

461

Rape and other offences against children under 13 (sections 5 to 8). Child sexual offences (sections 9 to 15A) Abuse of trust offences relating to children, (sections 16 to 19), Familial sexual offences relating to children, (sections 15 and 26) Indecent images of children (section 45), Child Sexual Exploitation, (sections 47 to 50). In a related, but separate context, section 1(1) of the Protection of Children Act 1978 creates offences of taking, distributing, possessing and publishing indecent images of children. Section 160 of the Criminal Justice Act 1988 also addresses the possession of such images. Further related offences are set out in the CPS guidance, Indecent and Prohibited Images of Children, available at https://www.cps.gov.uk/legal-guidance/indecent-and-prohibited-images-children.

462

World Health Organisation, Proposed working definition of an older person in Africa for the MDS Project, see https://www.who.int/healthinfo/survey/ageing mds report en daressalaam.pdf.

463

Crown Prosecution Service, Older People: Prosecuting Crimes Against (updated 30 April 2020), available at https://www.cps.gov.uk/sites/default/files/documents/publications/Hate-Crime-Annual-Data-Tables-Year-Ending-March-2021.xlsx.

464

World Health Organisation, Elder abuse (updated 15 June 2021), available at https://www.who.int/news-room/fact-sheets/detail/elder-abuse.

465

Mental Capacity Act 2005, s 44.

466

M O’Keefe, A Hills, M Doyle, C McCreadie, S Scholes, R Constantine, A Tinker, J Manthorpe, S Biggs, B Erens, “UK Study of Abuse and Neglect of Older People, Prevalence Study Report” (2007) 19(8) Nursing Older People 24.

467

World Health Organisation, Elder abuse (updated 15 June 2021), available at https://www.who.int/news-room/fact-sheets/detail/elder-abyse.

468

Hourglass, “Abuse of older people at ‘unprecedented levels’ as 2.7 million over 65s revealed to be affected, warns charity” (2020), available at https://wearehourglass.org/sites/default/files/inline-files/Safer%20Ageing%20Week polling%20release%20-%20Wales V1.pdf.

469

This includes “all CSEW crime types (including fraud and computer misuse).”

470

Office for National Statistics, Crime in England and Wales: Annual Trend and Demographic Tables (July 2021) Table D1, available at

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/crimeinenglandandwalesa nnualtrendanddemographictables.

471

Office for National Statistics, Crime in England and Wales: Annual Trend and Demographic Tables (July 2021) Table D1.

472

Office for National Statistics, Crime in England and Wales: Annual Trend and Demographic Tables (July 2021) Table D1.

473

Crown Prosecution Service, Hate Crime Annual Data Tables Year Ending 2020-2021 (updated 22 July

2021), available at https://www.cps.gov.uk/sites/default/files/documents/publications/Hate-Crime-Annual-Data-Tables-Year-Ending-March-2021.xlsx.

474

Doorstep crime covers a range of fraudulent activities such as charging extortionate prices and/or charging for unnecessary goods or services. In some cases, the visit to the person’s home may be preceded by a telephone cold call or the person may have responded to a flyer received at their home; see Age UK, Only the tip of the iceberg: Fraud against older people (April 2015) p 14, available at

https://www.ageuk.org.uk/globalassets/age-uk/documents/reports-and-publications/reports-and-briefings/safe-at-home/rb april15 only the tip of the iceberg.pdf.

475

Age UK, Only the tip of the iceberg: Fraud against older people (April 2015), available at https://www.ageuk.org.uk/globalassets/age-uk/documents/reports-and-publications/reports-and-briefings/safe-at-home/rb april15 only the tip of the iceberg.pdf.

476

Older men may also experience domestic abuse and sexual violence, however as outlined in Chapter 5, this is a context that disproportionately impacts women.

477

H Bows, Durham Law School Research Briefing 2018-12, Domestic Homicide of Older People in the UK (2010-2015) (2018) p 2, available at https://aafda.org.uk/wp-content/uploads/2019/04/Hannah-BowsHomicide-Briefing-Note.pdf.

478

H Bows and N Westmarland, “Rape of Older People in the UK, Challenging the ‘real rape’ stereotype” (2017) 57 British Journal of Criminology 1.

479

  Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) para 4.66.

480

  The Bracadale Review engaged with the Scotland office of Action on Elder Abuse. When we met with Action

on Elder Abuse, they expressed different views to those expressed by Action on Elder Abuse in the context of the Scottish review of hate crime laws. The representative that we met with informed us that their policy views sometimes differ from those expressed by Action on Elder Abuse’s Scotland office.

481

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) para 4.56.

482

Office for National Statistics, Number of CSEW incidents of hate crime per twelve months, England and Wales Crime Survey England and Wales: years ending March 2016 and March 2018, Appendix Table 2, available at

https://wwwons.gov.uk/file2yrE/peoplepopylationandcommunity/crimeandjystice/adhocs/009335numberofc sewincidentspfhatecrimesper12monthsenglandandwales2015tp2018/csewestimatespfhatecrimeyemarch201 62018-.xls.

483

Office for National Statistics, Number of CSEW incidents of hate crime per twelve months, England and Wales aggravated England and Wales: years ending March 2016 and March 2018, Appendix Table 2.

484

Florida Statute 775.085 (1)(a). Florida Statute 775.085 (1)(b) clarifies that “advanced age” means that the victim is older than 65 years of age.

485

Attorney General for Florida, Hate Crimes in Florida (2019), available at http://myfloridalegal.com/webfiles.nsf/WF/SSWN-

BWSRK6/$file/2019+Hate+Crimes+Report(Final+Version).pdf.

486

New York Police Department, Hate Crime Reports (2020), available at https://www1.nyc.gov/site/nypd/stats/reports-analysis/hate-crimes.page.

487

H Bows and P Bridget, “Editorial: Elder Abuse and Social Work: Research, Theory and Practice” (2018) 48 British Journal of Social Work 873, p 879.

488

H Bows, Submission from Dr Hannah Bows to the Justice Committee, Prosecution of Elder Abuse (February 2019), available at https://www.parliament.scot/S5 JusticeCommittee/Inquiries/EA-Bows.pdf.

489

H Bows, Submission from Dr Hannah Bows to the Justice Committee, Prosecution of Elder Abuse (February 2019).

490

SafeLives, Safe Later Lives, Domestic Abuse and older people (2015) p 13, available at https://safelives.org.uk/sites/default/files/resources/Safe%20Later%20Lives%20-%200lder%20people%20and%20domestic%20abuse.pdf citing SafeLives’ National Insights Dataset 20152016 (unpublished) findings for clients aged 61+ and under 60.

491

Consultation Question 23.

492

Crown Prosecution Service, Older people: Prosecuting Crimes against (updated 30 April 2020), available at https://www.cps.qov.uk/leqal-quidance/older-people-prosecutinq-crimes-aqainst.

493

Crown Prosecution Service, Older people: Prosecuting Crimes against (updated 30 April 2020).

494

Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, The poor relation: The Police and Crown Prosecution Service’s response to crimes against older people (July 2019) p 52, available at https://www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/crimes-against-older-people.pdf.

495

D O’Neil, B O’Shea, R Lawlor, C McGee, J Walsh, D Coakley, “The effects of burglary on elderly people” (1989) 298 The British Medical Journal 260, 260.

496

M Prince et al, Dementia UK: Update (King’s College London and the London School of Economics, 2014), available at https://www.alzheimers.org.uk/sites/default/files/migrate/downloads/dementia uk update.pdf.

497

  M Prince et al, Dementia UK: Update (King’s College London and the London School of Economics, 2014).

498

  Social Care Institute for Excellence, Dementia, Safeguarding people with dementia (last updated May 2015),

available at https://www.scie.org.uk/dementia/after-diagnosis/support/safeguarding.asp.

499

J Manthorpe, J N Perkins, B Penhale, L Pinkney, P Kingston, “Select questions: considering the issues raised by a Parliamentary Select Committee Inquiry into elder abuse” (2005) 7 Journal of Adult Protection 19.

500

C Cooper, L Marston, J Barber, D Livingston, P Rapaport, P Higgs et al, “Do care homes deliver person centred care? A cross sectional survey of staff reported abusive and positive behaviours towards residents from MARQUE (Managing Agitation and Raising Quality of Life) English national care home survey” (2018) PLoS ONE, 1.

501

Institute of Health Equity, Local Action on health inequality, Reducing social isolation across the life course (September 2015) p 5, available at http://www.instituteofhealthequity.org/resources-reports/local-action-onhealth-inequalities-reducing-social-isolation-across-the-lifecourse/local-action-on-health-inequalitiesreducing-social-isolation-across-the-lifecourse-full.pdf.

502

Office for National Statistics, Child abuse, extent and nature, England and Wales year ending March 2019 (2020), available at

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/childabuseextentandnature englandandwales/yearendingmarch2019.

503

  Victim Support, Policy Statement, Children and young people affected by crime (April 2017).

504

  Office for National Statistics, The nature of violent crimes: Appendix tables (February 2020) Table 1,

available at

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/thenatureofviolentcrimeap pendixtables.

505

Mayor of London, The London Knife Crime Strategy (2017) p 11, available at

https://www.london.gov.uk/sites/default/files/mopac knife crime strategy june 2017.pdf.

506

G Allen, L Audickas, P Loft, A Bellis, Knife crime in England and Wales, (House of Commons Briefing Paper

Number SN4304, September 2019) p 17, available at

https://researchbriefings.files.parliament.uk/documents/SN04304/SN04304.pdf.

507

World Health Organization, Child maltreatment (8 June 2020), available at

https://www.who.int/newsroom/fact-sheets/detail/child-maltreatment.

508

Office For National Statistics, Nature of crimes tables: violence, Year ending March 2020 (2020) Table 8a, available at

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/natureofcrimetablesviolen ce

509

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 47, para 4.61.

510

Commissioner for Older People for Northern Ireland, Crime and Justice, The Experience of Older People in

Northern Ireland, Commissioners Report (May 2019) p 6, available at

https://cnpea.ca/images/onlineolderadults-crime-report-northireland 2019may.pdf.

511

Age UK, Older People, Fraud and Scams (October 2017) p 1, available at

https://www.ageuk.org.uk/globalassets/age-uk/documents/reports-and-publications/reports-andbriefings/safe-at-home/rb oct17 scams party conference paper nocrops.pdf.

512

Age UK, Older People, Fraud and Scams (October 2017) p 1, citing Office for National Studies, Labour Force Survey, 2015.

513

Britainthinks, Crimes against older people: research commissioned by Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Service (July 2019) p 48, available at

https://www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/crimes-against-older-peopleresearch.pdf

514

Word Health Organization, Elder abuse (October 2021), available at https://www.who.int/news-room/fact-sheets/detail/elder-abuse.

515

J Wilkinson, S Bowyer, The impacts of abuse and neglect on children; and comparison of different placement options, Evidence review (Department of Education, March 2017) p 36, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment data/file/602148/C hildhood neglect and abuse comparing placement options.pdf.

516

C Fisher, A Goldsmith, R Hurcombe, C Soares, The impacts of child sexual abuse: A rapid evidence assessment (July 2017) p 11, available at https://www.iicsa.org.uk/key-documents/1534/view/iicsa-impactschild-sexual-abuse-rapid-evidence-assessment-full-report-english.pdf.

517

  The disparity between a higher fear of crime despite a much lower risk of criminal victimisation has been

referred to as the “victimization-fear-paradox. See W Greve, “Fear of crime among the elderly: foresight not fright” (1998) 5 International Review of Victimology 277.

518

L De Donder, D Verte and E Messelis, “Fear of Crime and Elderly People: Key Factors That Determine Fear of Crime Among Elderly People in West Flanders” (2005) 30 Ageing International 363.

519

Commissioner for Older People for Northern Ireland, Crime and Justice, The Experience of Older People in Northern Ireland, Commissioners Report (May 2019) pp 6 and 9, available at https://cnpea.ca/images/onlineolderadults-crime-report-northireland 2019may.pdf.

520

As we note at paragraph 6.24, a similar conclusion was reached by the review of hate crime laws in Scotland. See Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) p 49 at para 4.70.

521

Sentencing Council, Aggravating and mitigating factors, available at

https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/aggravating-andmitigating-factors/.

522

See R v Gaskin (Arthur) [2019] EWCA Crim 1048; 6 WLUK 371.

523

From the public sector (e.g. schools, social services, Local Authorities), third sector (see for example, the work of The Lighthouse, London, available at https://www.thelighthouselondon.org.uk/) and the criminal justice system (see The Metropolitan Police, London Child Sexual Exploitation Operating Protocol (June 2017), available at https://www.met.police.uk/SysSiteAssets/media/downloads/central/advice/met/child-abuse/the-london-childsexual-exploitation-operating-protocol.pdf).

524

H Bows, Is more law the answer? A review of proposed reforms to address the victimisation of older adults (2020) pp 25 to 26, available at

https://archive2021.parliament.scot/S5 JusticeCommittee/Inquiries/H Bows SPICe ReportAddressing old er victimisation.pdf; M.A. Walters and J. Tumath, “Gender ‘hostility’, rape, and the hate crime paradigm” (2014) 77 The Modern Law Review 563, p 577.

525

Y Yon, M Ramiro-Gonzalez, C Mikton, M Huber, D Sethi, The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis (2018), available at https://pubmed.ncbi.nlm.nih.gov/29878101/.

526

Y Yon, CR Mikton, ZD Gassoumis, KH Wilber, Elder abuse prevalence in community settings: a systematic review and meta-analysis (2017), available at https://pubmed.ncbi.nlm.nih.gov/28104184/.

527

  Dr Gary Fitzgerald, Bridget Penhale, Jayne Connery, Ian Cranefield, Steve James and Paul Greenwood.

528

  Dr Gary Fitzgerald, Bridget Penhale, Jayne Connery, Ian Cranefield, Steve James and Paul Greenwood.

529

Action on Elder Abuse, A Patchwork of Practice (2017), available at

https://www.rbsab.org/UserFiles/Docs/Patchwork-of-PracticeDEC2017.pdf.

530

Action on Elder Abuse, The Need for a Criminal Offence of Elder Abuse (2016), available at

http://btekstorage.blob.core.windows.net/site13049/Website%20stuff/2016-Criminal-Offence-briefing-paper.pdf.

531

  Co-signatories included the Association of Directors of Social Services Cymru; Age Cymru; BASW Cymru;

British Association of Social Workers; Both Parents Matter; Care Inspectorate Wales; Church in Wales; DEWIS Choice; EROSH; Hourglass Cymru; National Independent Safeguarding Board Wales; National Trading Standards Scams Team; Neighbourhood Watch; NHS Wales Safeguarding Network; Public Health Wales; Royal College of Nursing Wales; Shared Regulatory Services; Trading Standards (Wales representative); Wales Violence Prevention Unit; Welsh Ambulance Service Trust; Wales Council for Voluntary Action (WCVA); Welsh Women’s Aid; West Wales Domestic Abuse Services; Welsh Local Government Association.

532

Dr Gary Fitzgerald, Bridget Penhale, Jayne Connery, Ian Cranefield, Steve James and Paul Greenwood.

533

  Dr Gary Fitzgerald, Bridget Penhale, Jayne Connery, Ian Cranefield, Steve James and Paul Greenwood.

534

Think Jessica, Shocking Facts, available at https://www.thinkjessica.com/shocking-facts/.

535

Dr Gary Fitzgerald, Bridget Penhale, Jayne Connery, Ian Cranefield, Steve James and Paul Greenwood.

536

Ray S, Sharp E and Abrams D, Ageism: A Benchmark of Public Attitudes in Britain (2006, Age Concern Reports).

537

Office for National Statistics, The nature of violent crimes: Appendix tables (February 2020) Table 1, available at

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/thenatureofviolentcrimeap pendjxtobjes.

538

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 13.68.

539

Office For National Statistics, Nature of crimes tables: violence, Year ending March 2018 (2018) Table 9,

available at

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/natureofcrimetablesviolen ce.

540

Sentencing Guidelines Council, Overarching principles guidelines: Seriousness (December 2004) p 5 at para 1.17, available at https://www.sentencingcouncil.org.uk/wp-content/uploads/Seriousness-guideline.pdf.

541

See the sentencing guidelines for assault occasioning actual bodily harm / Racially or religiously aggravated ABH, Crime and Disorder Act 1998, s.29, Offences against the Person Act 1861, s47 (effective from 1 July 2021), available at https://www.sentencingcouncil.org.uk/offences/crown-court/item/assault-occasioning-actual-bodily-harm-racially-or-religiously-aggravated-abh/.

542

Police recording of hate crimes and hate incidents for statistical and monitoring purposes is distinct from a determination as to whether a hate crime has in fact been committed. Recording is perception-based and has no implications for how the case will be treated if it is prosecuted in court. We discuss this distinction further in our introduction at Chapter 1.

543

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250.

544

See A Benn, “Classism as hate crime: proposing class as a protected ground in criminal law” [2021] (10) Criminal Law Review 809.

545

  See Miller v College of Police and the Chief Constable of Humberside [2020] EWHC 225 (Admin) 261, [162].

546

   College of Policing, Authorised Professional Practice: Hate Crime (20 October 2020), Responding to Hate.

Available at https://www.app.college.police.uk/app-content/major-investigation-and-public-protection/hate-crime/responding-to-hate/#non-monitored-hate-crime.

547

Stella, Language Matters: Talking About Sex Work (April 2013) p 3, available at https://www.nswp.org/sites/nswp.org/files/StellaInfoSheetLanguageMatters.pdf.

548

Street Offences Act 1959, s 1.

549

Sexual Offences Act 2003, s 51A.

550

Sexual Offences Act 1956, ss 33 to 36.

551

Sexual Offences Act 2003, s 52.

552

Sexual Offences Act 2003, s 53.

553

Modern Slavery Act 2015, s 2.

554

Sexual Offences Act 2003, s 53A.

555

  Sexual Offences Act 2003, s 47. The age of consent to sex is ordinarily 16 in England and Wales.

556

  Crown Prosecution Service, Prostitution and Exploitation of Prostitution (4 January 2019), available at

https://www.cps.gov.uk/legal-guidance/prostitution-and-exploitation-prostitution .

557

Crown Prosecution Service, Prostitution and Exploitation of Prostitution (4 January 2019).

558

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 307 to 320.

559

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 309 to 315.

560

National Ugly Mugs, CEO statement, International day to end violence against sex workers 2019 (December 2019), available at https://uiglymuigs.org/uim/press-rciom/nuim-statemenMnternational-day-to-end-violence-against-sex-workers-2019/.

561

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 315 to 318.

562

  See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 317 to

319.

563

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 308 to 309.

564

  R Campbell, “Not getting away with it: Linking sex work and hate crime in Merseyside” in N Chakraborti, J

Garland (eds) Responding to Hate Crime: The Case for Connecting Policy and Research (1st ed, 2014) p 55.

565

R Campbell, “Not getting away with it: Linking sex work and hate crime in Merseyside” in N Chakraborti, J Garland (eds) Responding to Hate Crime: The Case for Connecting Policy and Research (1st ed, 2014) p 60.

566

North Yorkshire Police, “Crimes against sex workers added to hate crime policy” (2019), available at https://www.northyorkshire.police.uk/staying-safe/hate-crime/crimes-against-sex-workers-added-to-hate-crime-policy/.

567

OBJECT, Nordic Model Now!, Laughing at Feminists, CEASE UK (Centre to End All Sexual Exploitation), Fair Cop, Safe Schools Alliance UK, The Muslim Council of Britain.

568

This refers to reports made to charity “National Ugly Mugs”, which describes itself as “a UK-wide charity working with sex workers to do research, design and deliver safety tools and to provide support services to people in adult industries.” See further https://nationaluglymugs.org/.

569

J Pilcher and M Wijers, “The impact of different regulatory models on the labour conditions, safety and welfare of indoor-based sex workers” (2014) 14(5) Criminology & Criminal Justice 549.

570

Galop, One25, TransActual UK, Magistrates Association.

571

Islington City Council, Manchester City Council, The Sex Worker Research Hub, Stonewall, Trans Actual UK, The VAWG and Hate Crime Team, London Borough of Tower Hamlets.

572

National Aids Trust, The Sex Worker Research Hub, One25 and SWGfL, who host three helplines: the Revenge Porn Helpline, Professions Online Safety Helpline and Report Harmful Content Helpline.

573

Association of Police and Crime Commissioners.

574

  London Mayor’s Office for Policing and Crime (“MOPAC”).

575

A Woman’s Place UK.

576

Birmingham & Solihull Women's Aid, The Equality and Inclusion Partnership, Labour Women’s Declaration Working Group.

577

Nottingham City Council, Christian Concern.

578

Christian Concern, Nordic Model Now.

579

LGB Alliance and Christian Concern.

580

  LGB Alliance and Christian Concern.

581

  Nordic Model Now.

582

R v Herbert, Harris, Hulme, Hulme and Mallet [2008] EWCA Crim 2051 at [20] where the judge’s remarks are quoted. For further discussion of the case see Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 1.20.

583

Sophie Lancaster Foundation submission.

584

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 320 to 327.

585

R v Herbert, Harris, Hulme, Hulme and Mallet [2008] EWCA Crim 2051 at [20].

586

“Don’t abuse us because of how we look” (April 2009) Kent Online, available at

https://www.kentonline.co.uk/folkestone/news/dont-abuse-us-because-of-how-we-a52491/.

587

J Garland, “It’s a mosher just been banged for no reason” Assessing targeted violence against goths and the parameters of hate crime (2010) 17 International Review of Victimology 159, p 169.

588

J Garland and P Hodkinson, “Alternative Subcultures and hate crime” in N Hall, A Corb, P Giannassi, J Greive, N Lawrence, Routledge International Handbook on Hate Crime (2014) p 227.

589

J Garland, P Hodkinson, “’F**king freak! What the hell do you think you look like, Experiences of Targeted Victimization Among Goths and Developing Notions of Hate Crime’” (2014) 54 British Journal of Criminology 613, p 618.

590

J Garland, P Hodkinson, “’F**king freak! What the hell do you think you look like, Experiences of Targeted Victimization Among Goths and Developing Notions of Hate Crime’” (2014) 54 British Journal of Criminology 613, p 619.

591

J Garland, “’It’s a mosher just been banged for no reason’, Assessing targeted violence against goths and the parameters of hate crime” (2010) 17 International Review of Victimology 159, p 168.

592

Greater Manchester Police, Greater Manchester Police Crime and incident data for April 2019 to June 2019 (July 2019) p 9, available at

https://www.gmp.police.uk/SysSiteAssets/media/downloads/greatermanchester/stats-and-data/hate-crime/hate-crime-and-incident-data-for-april-2019-to-june-2019.pdf.

593

Quoted in R v Herbert, Harris, Hulme, Hulme and Mallet [2008] EWCA Crim 2051 at [20].

594

J Garland, “’It’s a mosher just been banged for no reason’, Assessing targeted violence against goths and the parameters of hate crime” (2010) 17 International Review of Victimology 169.

595

“Don’t abuse us because of how we look” (April 2009) Kent Online, available at

https://www.kentonline.co.uk/folkestone/news/dont-abuse-us-because-of-how-we-a52491/.

596

J Garland and P Hodkinson, “Alternative Subcultures and hate crime” in N Hall, A Corb, P Giannassi, J Greive, N Lawrence, Routledge International Handbook on Hate Crime (2014) p 227.

597

See Greater Manchester Police, Hate Crime (2019) available at: https://www.gmp.police.uk/police-

forces/greater-manchester-police/areas/greater-manchester-force-content/sd/stats-and-data/hate-crime/.

598

J Garland and P Hodkinson, “Alternative Subcultures and hate crime” in N Hall, A Corb, P Giannassi, J Greive, N Lawrence, Routledge International Handbook on Hate Crime (2014) p 228.

599

J Garland, “’It’s a mosher just been banged for no reason’, Assessing targeted violence against goths and the parameters of hate crime” (2010) 17 International Review of Victimology 159, p 170.

600

  See, eg, P Hodgkinson, Goth: Identity, Style and Subculture (1st ed, 2002).

601

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 325.

602

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 325 to 326.

603

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 327.

604

J Garland and P Hodkinson, “Alternative Subcultures and hate crime” in N Hall, A Corb, P Giannassi, J Greive, N Lawrence, Routledge International Handbook on Hate Crime (2014) p 232.

605

J Garland and P Hodkinson, “Alternative Subcultures and hate crime” in N Hall, A Corb, P Giannassi, J Greive, N Lawrence, Routledge International Handbook on Hate Crime (2014) p 232.

606

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 327.

607

Discussed at paragraph 3.11 of Chapter 3.

608

Crisis UK website, About Homelessness (2021), available at https://www.crisis.org.uk/ending-homelessness/about-homelessness/.

609

See House of Commons Library, “Rough Sleepers: Enforcement Powers (England)” (9 April 2021) Briefing Paper Number 07836, p 3, available at https://researchbriefings.files.parliament.uk/documents/CBP-7836/CBP-7836.pdf.

610

National Police Chiefs’ Council and Crisis, From enforcement to ending homelessness: How polices forces and local authorities and the voluntary sector can best work together (2021), available at: https://www.crisis.org.uk/media/245310/from-enforcement-to-ending-homelessness-full-guide.pdf

611

Code of the District of Columbia § 22-3701(1).

612

Florida Statutes, § 775.085.

613

Maine Revised Statutes Title 17A § 1151(8).

614

Maryland Code, Criminal Law § 10-30.

615

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 329 to 332.

616

See B Sanders, F Albanese, It’s no life at all, Rough Sleepers’ experience of violence and abuse on the streets of England and Wales (Crisis, 2016) p 6. This study included 458 homeless people, three quarters of whom had experienced anti-social and criminal behaviour on the streets. More specifically, 30% of reported being deliberately hit or kicked in the past 12 months; 45% had been threatened or intimidated with (potential) violence in the last year; 31% had experienced things being thrown at them; 6% disclosed that they had been sexually assaulted, interfered with or attacked in the last 12 months; 7% said they had been urinated on in the past year; More than half (51%), reported having had things stolen from them when sleeping out; 20% had their belongings deliberately damaged or vandalised; More than half (56%) had experienced some form of verbal abuse or harassment in the past 12 months.

617

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 332 to 336.

618

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 336 to 337.

619

on Hate Crime, Expert Link, Manchester City Council, Islington City Council, Bent Behind Bars, iSEA, the Welsh Government, Magistrates Association.

Organisational stakeholders who responded negatively included: SARI, Deputy Police and Crime Commissioner for Nottinghamshire, Office for Police and Crime Commissioner for Northumbria, Christian Concern, APCC, Resolve West, Nottingham City Council, MOPAC (GLA).

620

Hodge Jones & Allen, “Should the homeless be protected by hate crime law?” (October 2020), available at https://www.hja.net/expert-comments/opinion/housinq-riqhts/should-the-homeless-be-protected-bv-hate-crime-law/.

621

  A Arden and J Bates, “Homelessness and Hate Crime” (2021) 24(1) Journal of Housing Law 1.

622

 A Arden and J Bates, “Homelessness and Hate Crime” (2021) 24(1) Journal of Housing Law 1, 3.

623

 A Arden and J Bates, “Homelessness and Hate Crime” (2021) 24(1) Journal of Housing Law 1, 4 to 5.

624

Between November 2020 and January 2021, Crisis and Cardboard Citizens spoke to 15 people with lived experience of homelessness in England over six separate sessions. Four participants were Crisis staff members from the Crisis lived experience staff network. Participants had experienced different types of homelessness including rough sleeping, sofa surfing, and living in hostels. Half of the participants across the groups had experienced abuse or violence from members of the public when homeless. Of the remaining participants, some had witnessed other people being attacked or abused when homeless, and the Crisis staff network members had all also supported Crisis clients with similar experiences.

625

Manchester City Council.

626

Stonewall.

627

Welsh Government.

628

Welsh Government.

629

The Magistrates Association.

630

Resolve West, SARI, The Deputy Police and Crime Commissioner for Nottinghamshire, Nottingham City Council, The Office for Police and Crime Commissioner for Northumbria.

631

MOPAC.

632

A Arden and J Bates, “Homelessness and Hate Crime” (2021) 24(1) Journal of Housing Law 1, pp 4 to 5.

633

Equality Act 2010, s 10(2).

634

Equality Act 2010, Explanatory Notes, para 51.

635

Equality Act 2010, Explanatory Notes, paras 52 to 53.

636

  Grainger plc and Ors v Nicolson [2009] UKEAT 0219/09/0311.

637

Equality Act 2010. Explanatory Notes, para 53. Humanism and Atheism are protected as beliefs under the Equality Act. Atheism is also protected under “lack of religion”.

638

Casamitjana Costa v The League Against Cruel Sports [2020] ET 3331129/2018.

639

Conisbee v Crossley Farms Ltd & Others [2019] ET 3335357/2018. The Employment Tribunal found that vegetarianism was a lifestyle choice. The tribunal suggested that veganism, as opposed to vegetarianism, may qualify as a philosophical belief because unlike the latter, the reasons for being a vegan are more consistent.

640

Grainger plc and Ors v Nicolson [2009] UKEAT 0219/09/0311. The Employment Appeal Tribunal held that climate change beliefs were capable of being protected, however in this instance the appellant needed to demonstrate that this belief was “genuinely held” via further evidence.

641

Forstater v CGD Europe and Others [2021] UKEAT 0105/20/JOJ. The EAT found that gender-critical beliefs were capable of being protected as a philosophical belief under the Equality Act 2010. The EAT overturned the ET’s decision that Forstater’s gender-critical belief did not pass the fifth element of the test set out in Grainger, that the belief is worthy of respect in a democratic society.

642

Grainger plc and Ors v Nicolson [2009] UKEAT 0219/09/0311, para 28.

643

Olivier v Department for Work and Pensions (DWP) [2013] ET 1701407/2013.

644

McEleny v Ministry of Defence [2017] ET (Scotland) 4105347/2017.

645

Gibbins v British Council [2017] ET 2200088/2017.

646

Lisk v Shield Guardian Co Ltd and others [2011] ET 3300873/112011.

647

McClintock v Department of Constitutional Affairs [2008] IRLR 29.

648

Harron v Chief Constable of Dorset Police [2016] UKEAT 0234/15/DA.

649

See last bullet point of the Grainger test outlined earlier - “A belief worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others.”

650

Grainger plc and Ors v Nicolson [2009] UKEAT 0219 09 0311, para 28.

651

Forstater v CGD Europe, Appeal no. UKEAT/0105/202/JOJ (10 June 2021).

652

Elections Bill, clauses 26 to 30.

653

Elections Bill, schedule 8.

654

Elections Bill, clause 26(4).

655

Joseph Lee, “Sir David Amess: Ali Harbi Ali charged with murder of MP” (21 October 2021) BBC News, available at https://www.bbc.co.uk/news/uk-58997590.

656

BBC, “Jo Cox MP dead after shooting attack” (16 June 2016), available at https://www.bbc.co.uk/news/uk-england-36550304.

657

The Times, “Labour MP Stephen Timms ‘was stabbed by woman over Iraq war vote’” (2 November 2010), available at https://www.thetimes.co.uk/article/labour-mp-stephen-timms-was-stabbed-by-woman-over-iraq-war-vote-txt86b06j27.

658

Emily Ashton and Joe Mayes, “U.K. MP’s Murder Called Terrorism, Safety Review Ordered” (15 October 2021) Bloomberg, available at: https://www.bloomberg.com/news/articles/2021-10-15/u-k-politician-s-slaying-sparks-calls-for-safety-review-for-mps.

659

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 341 to 342.

660

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, Chapters 12 and 18. See also Abusive and Offensive Online Communications: A Scoping Report, (November 2018), Law Com No 381, paras [3.59] and [3.71]. This report details gendered abuse online experienced by women.

661

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 345 to 347.

662

A Brown, “The ‘Who’ Question in the Hate Speech Debate: Part 1: Consistency, Practical and Formal Approaches” (2016) 29 Canadian Journal of Law & Jurisprudence 275, p 306.

663

S Soifer, “Vegan Discrimination: An Emerging and Difficult Dilemma” (2003) 36 Loyola of Los Angeles Law Review 1709, pp 1712 to 3.

664

M Pinto, “What Are Offences to Feelings Really About? A New Regulative Principle for the Multicultural Era” (2010) 30(4) Oxford Journal of Legal Studies 695, pp 716, 719 to 720.

665

A Brown, “The ‘Who’ Question in the Hate Speech Debate: Part 1: Consistency, Practical and Formal Approaches” (2016) 29 Canadian Journal of Law & Jurisprudence 275, p 306.

666

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 347 to 348.

667

Forstater v CGD Europe, Appeal no. UKEAT/0105/202/JOJ (10 June 2021, [62].

668

See Arthi Nachiappan, “Experts get their teeth into idea of vegan hate crime” (8 August 2020) The Times, available at https://www.thetimes.co.uk/article/experts-get-their-teeth-into-idea-of-vegan-hate-crime-65nsf6c02.

669

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para

14.173.

670

See CPS, Terrorism (2017), available at: https://www.cps.gov.uk/crime-info/terrorism.

671

CPS, “CPS authorises murder charge over death of MP Sir David Amess” (21 October 2021), available at: https://www.cps.qov.uk/cps/news/cps-authorises-murder-charqe-over-death-mp-sir-david-amess.

672

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250.

673

R v McGillivray [2005] EWCA Crim 604, [2005] 1 WLUK 369.

674

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 16.13 to 16.14.

675

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 16.23.

676

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 16.24.

677

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 17.49 to 17.71.

678

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 16.157 to 16.179.

679

See Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020), Recommendation 3, p 10. Though in Northern Ireland the situation is somewhat unique again. The eleven offences that are aggravated in England and Wales have already had their maximum penalties increased to the aggravated maximum equivalents in England and Wales. These increases apply to all offending, not just hate crime, but were implemented at the same time as the Northern Ireland hate crime provisions.

680

We describe the Irish proposals in more detail in Chapter 2 from paragraph 2.203.

681

This has informed some of our conclusions later in this chapter - particularly our decision not to recommend the addition of new aggravated offences (contrary to our provisional proposals in the consultation paper). However, as we have emphasised, the repeal of existing hate crime laws was not within our terms of reference.

682

  For the reasons outlined at paragraphs 8.42 to 8.44 we do not consider this to be a preferable approach.

683

  Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) p 124, para

5.46. Additionally, in Northern Ireland, the base versions of the offences that have equivalent aggravated versions in England and Wales have also already had their maximum penalties increased to the level of the aggravated versions of the same offences in England and Wales. These increases applied to all offending, not just hate crimes, but the already higher maximum penalties further reduce the call for a distinct set of aggravated offences in that jurisdiction.

684

See Crown Prosecution Service, Hate Crime Strategy 2017-20 (2018) p 3, available at

https://www.cps.gov.uk/sites/default/files/documents/publications/CPS-Hate-Crime-Strategy-2020-Feb-2018.pdf.

685

Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, p 81.

686

Protection of Freedoms Act 2012, s 111 and Sch 9, Pt 11, para 144.

687

Home Office, Racial Violence and Harassment: A Consultation Document (Sep 1997) [3.1], available at https://webarchive.nationalarchjves.gov.uk/+/https://www.nationalarchives.gov.uk/ERORecords/HO/421/2/P 2/rvah.htm.

688

Hansard (HL), 12 Feb 1998, vol 585, cols 1280 to 1284.

689

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 386.

690

Modernising Communications Offences: A Final Report (2021) Law Commission Report No 399.

691

Modernising Communications Offences: A Final Report (2021) Law Commission Report No 399.

692

  Modernising Communications Offences: A Final Report (2021) Law Commission Report No 399, pp 99, 111.

693

  Modernising Communications Offences: A Final Report (2021) Law Commission Report No 399. p 71.

694

See further paragraph 8.102.

695

“Mate crime” is used to describe circumstances in which a perpetrator befriends a vulnerable person (often with a learning disability) with the intention of then exploiting the person financially, physically or sexually.

696

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 406.

697

  Crime and Disorder Act 1998, s 31(1)(c). The base offence is Public Order Act 1986, s 5.

698

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 399 to 400.

699

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 399 to 404.

700

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) p 18, para 80.

701

  We discuss this concern further in the introduction to this report at paragraph 1.5.

702

  Mattocia v Italy (2000) ECHR (Application no. 23969/94).

703

  Mattocia v Italy (2000) ECHR (Application no. 23969/94) at [59].

704

  Mattocia v Italy (2000) ECHR (Application no. 23969/94) at [59].

705

Mattocia v Italy (2000) ECHR (Application no. 23969/94) at [60].

706

R v Greenfield [1973] 1 WLR 1151.

707

R v Hobson (Andrew Craig) [2013] EWCA Crim 819.

708

R v Robert K [2008] EWCA Crim 1923, [2008] 7 WLUK 695.

709

See R v Jogee; Ruddock v The Queen [2016] UKSC 8 at para [74].

710

J Horder, “Rethinking Non-Fatal Offences Against the Person” (1994) 14(3) Oxford Journal of Legal Studies 335, p 351.

711

AP Simester and A von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Hart: Oxford, 2014) p 204.

712

AP Simester and A von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalisation (Hart: Oxford, 2014) p 204.

713

Solomon (1984) 6 Cr App R (S) 120; Stosiek (1982) 4 Cr App R (S) 205.

714

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 16.128.

715

R v Sadique [2011] EWCA Crim 2872, [2012] 1 Cr App R 19; at [36].

716

  Archbold Criminal Pleading Evidence and Practice 2021 Ed., 4-534.

717

  Allday (1837) 8 C. & P. 136 (see forms of special verdict in Dudley (1884) 14 QBD 273; Staines Local

Board, 52 J.P. 215).

718

Bourne (1952) 36 Cr. App. R. 125, CCA.

719

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 429 to 433.

720

A UK charity set up to advance legal education on Israel and antisemitism and to provide legal support to victims of antisemitism, particularly antisemitism which manifests itself with regard to Israel. See: https://uklficharity.com/.

721

An exception to this general position is common assault, which the Crown Court is specifically empowered to return as an alternative verdict to more serious offences in relevant cases by virtue of section 40 of the Criminal Justice Act 1988.

722

Crown Prosecution Service, Racist and Religious Hate Crime - Prosecution Guidance (21 October 2020), available at https://www.cps.qov.uk/leqal-quidance/racist-and-reliqious-hate-crime-prosecution-quidance.

723

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 407 to 409.

724

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 434 to 435.

725

See R v O’Leary [2015] EWCA Crim 1306, [2016] 1 Cr App R (S) 11.

726

We discuss these provisions in Chapter 2 at paragraphs 2.83 to 2.87.

727

Prior to the enactment of the Code, this provision was found in section 2(6) of the AEWA 2018.

728

Crown Prosecution Service, Assaults on Emergency Workers (Offences) Act 2018 (11 August 2021)

available at https://www.cps.gov.uk/legal-guidance/assaults-emergency-workers-offences-act-2018.

729

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250.

730

A different, higher, threshold of “hatred” applies in respect of the stirring up hatred offences in Parts 3 and 3A of the Public Order Act 1986 (POA 1986). We discuss these further in Chapter 10.

731

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, p 352.

732

Crown Prosecution Service, Disability Hate Crimes and other crimes against disabled people (15 August 2018), available at https://www.cps.gov.uk/legal-guidance/disability-hate-crime-and-other-crimes-against-disabled-people-prosecution-guidance.

733

R v SH [2010] EWCA Crim 1931, [2010] 8 WLUK 9 at [29].

734

Walters, M, “Conceptualizing ‘Hostility’ for Hate Crime Law: Minding ‘the Minutiae’ when Interpreting Section 28(1)(a) of the Crime and Disorder Act 1998” (2014) 34(1) Oxford Journal of Legal Studies 47, 67.

735

Jones v DPP [2010] EWHC 523 (Admin), [2011] 1 WLR 833 at [17] and [20].

736

Crime and Disorder Act 1998, s 28(1)(b).

737

  DPP v Dykes [2008] EWHC 2775 (Admin), (2009) 173 Justice of the Peace 88 at [20] by Calvert Smith J.

738

 Jones v DPP [2010] EWHC 523 (Admin), [2011] 1 WLR 833 at [17] by Ouseley J; G [2004] EWHC 183

(Admin), (2004) 168 Justice of the Peace 313 at [15] by May LJ.

739

Presumed by the offender: Crime and Disorder Act 1998, s 28(2).

740

Eg if one white person were to say to another, having assaulted him, “you n****r lover” upon seeing the victim rejoin a group of black friends at the bar: DPP v Pal [2000] EWHC 656 (Admin) at [13] by Simon Brown LJ.

741

  See paras 4.280 to 4.284.

742

  See paragraph 9.13.

743

Communications Act 2003, s 127.

744

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 353 to 354.

745

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 354 to 358.

746

See further: M Walters, S Wiedlitzka, A Owusu Bempah and K Goodall, Hate Crime and the Legal Process: Options for Law Reform (University of Sussex, 2017) p 120.

747

Home Office, Racial Violence and Harassment: A Consultation Document (Sep 1997) para 8.2, available at https://webarchive.nationalarchives.gov.uk/+/https://www.nationalarchives.gov.uk/ERORecords/HO/421/2/P 2/rvah.htm.

748

New South Wales Law Reform Commission, Sentencing (Report 139, 2013) para 4.183.

749

Crime and Disorder Act 1998, s 96(2).

750

Lord Bracadale, Independent review of hate crime legislation in Scotland: final report (May 2018) para 3.8, available at https://www.qov.scot/piiblications/independent-review-hate-crime-leqislation-scotland-final-report/.

751

Hate Crime and Public Order (Scotland) Act 2021, s 1.

752

See paraqraph 9.14.

753

See College of Policing, Major Investigation and Responding to Hate (20 October 2020), available at https://www.app.college.police.uk/app-content/major-investigation-and-public-protection/hate-crime/responding-to-hate/#perception-based-recording.

754

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras [15.32] to [15.34].

755

K Goodall, “Conceptualising ‘racism’ in criminal law” (2013) 33 Legal Studies 215, pp 222, 237.

756

  We describe the Republic of Ireland’s proposals in greater detail in Chapter 2 at paras 2.203 to 2.214.

757

  In Chapter 2 at paras 2.40 to 2.47 we outline Sentencing Council Guidance that has considered these

issues in greater detail.

758

Crown Prosecution Service, Disability Hate Crimes and other crimes against disabled people (15 August

2018) available at https://www.cps.gov.uk/legal-guidance/disability-hate-crime-and-other-crimes-against-disabled-people-prosecution-guidance.

759

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, pp 358 to 370.

760

  M Walters, S Wiedlitzka, A Owusu Bempah and K Goodall, Hate Crime and the Legal Process: Options for

Law Reform (University of Sussex, 2017) p 206, available at

https://www.sussex.ac.uk/webteam/gateway/file.php?name=final-report—hate-crime-and-the-legal-process.pdf&site=539.

761

M Walters, S Wiedlitzka, A Owusu Bempah and K Goodall, Hate Crime and the Legal Process: Options for Law Reform (University of Sussex, 2017) pp 204 to 205.

762

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 15.57 to 15.61.

763

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 15.101.

764

K Goodall, “Conceptualising ‘racism’ in criminal law” (2013) 33 Legal Studies 215, pp 222, 228.

765

See, for example, Victoria: Sentencing Act 1991 (Vic), s 5(2AC)(daaa), New South Wales: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(h), and Canada: Criminal Code (Cda), s 718.2.a.

766

See Modernising Communications Offences: A Final Report (2021) Law Commission Report No 399.

767

Harmful Online Communications: The criminal offences (2020) Law Commission Consultation Paper 248, para 1.5.

768

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 18.62 to 67.

769

Jameel v Wall Street Journal Europe [2003] EWHC 37 (QB); [2004] 1 WLUK 273 at 18.

770

Free Speech Union (FSU), “The Law Commission would make Mohammed cartoons illegal”. The FSU claimed that the Commission “suggests that “the British media were right not to publish”” the Charlie Hebdo cartoons. That was not our view, but that of Professor Ronald Dworkin, included in a literature review, which we explicitly attributed to Professor Dworkin. The FSU also stated, “Criminalising misogyny, it [the Law Commission] says, would remind people that “negative attitudes towards women are not acceptable””. This was not our view, but the view of Melanie Onn MP, which we explicitly attributed to her.

771

Free Speech Union, “The Law Commission would make Mohammed cartoons illegal”: The FSU claimed that it was “clear” that a reference to “Islamophobic cartoons ...” [ellipsis in the FSU text, not the consultation paper] included the images of Muhammad published in Charlie Hebdo. The curtailed phrase was also used in an article in the Spectator by the Union’s Director Toby Young.

The untruncated text referred to “Islamophobic cartoons cited by the Home Affairs Committee” [emphasis added] with a footnote citing the page of the Home Affairs Committee report in question. This, in turn, referred to “a cartoon of a white woman being gang raped by Muslims over the ‘altar of multiculturalism’; a cartoon stating that ‘Muslims rape’” and “a cartoon that we reported depicting a group of male, ethnic minority migrants tying up and abusing a semi-naked white woman, while stabbing her baby to death.” It did not refer to Charlie Hebdo or images of Muhammad in general; it explicitly referred to something else.

772

Free Speech Union, “The Law Commission would make Mohammed cartoons illegal”. At point 6 the FSU says: “The Commission says the point of hate-crime law is to educate the public.” The same claim was made in an article by Joanna Williams, (“The Harm in Hate Crime Laws”, Spiked, 6 October 2020), to which the FSU claim hyperlinked. We did not say this, and it does not reflect our view.

773

Brandenburg v Ohio, 395 US 444 (1969).

774

Chaplinsky v New Hampshire, 315 U.S. 568 (1942).

775

Gertz v Robert Welch, 418 US 323 (1979); Illinois ex rel. Madigan v Telemarketing Associates Inc, 538 US 600 (2003).

776

Miller v California, 413 US 15 (1973).

777

The terms of reference for this project require us to “ensure that any recommendations comply with, and are conceptually informed by, human rights obligations, including under articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention on Human Rights”.

778

Ibragim Ibragimov v Russia, Applications. nos. 1413/08 and 28621/11; Norwood v UK, Application no. 23131/03 (admissibility).

779

Belkacem v Belgium, Application no. 34367/14.

780

Ibragim Ibragimov v Russia, Applications. nos. 1413/08 and 28621/11, paras 62 to 3.

781

  Lilliendahl v Iceland, Application no. 29297/18.

782

Soulas v France, Application no. 15948/03, para 30.

783

Vejdeland v Sweden, Application no. 1813/07, para 49.

784

Feret v Belgium, Application no. 15615/07, para 73.

785

Ibragim Ibragimov and others v. Russia, Applications nos. 1413/08 and 28621/11, para 94.

786

In Wingrove v UK (Application no. 17419/90), the ECtHR held that “there is little scope under Article 10(2) ... for restrictions on political speech or on debate of questions of public interest” and contrasted this with the “sphere of morals”, where a wider margin of appreciation is applied.

787

In R v Sheppard and Whittle [2010] EWHC Crim 65, charges relating to possession and publication of racially inflammatory material were upheld in relation to Holocaust denial material. Crucially, perhaps, the publication suggested that Jewish people had a history of inventing stories of the commission of atrocities against them.

788

In R v Chabloz (unreported), on appeal from City of Westminster Magistrates Court, HHJ Christopher Hehir said “There is no crime of Holocaust denial in this jurisdiction” and “anti-Semitism is not a crime, just as Holocaust denial is not a crime”. However, Chabloz’s conviction was upheld, on the basis that the way she had expressed her views amounted to “grossly offensive” communications. These included “jovial references to Dr Josef Mengele ... to the bodies of babies being burnt; and to the death in a concentration camp of one particular child, Anne Frank”; it being “particular[ly] repellent” that “the song is sung in a spiteful parody of a Yiddish or similar accent”; a description of Auschwitz as a “holy temple”; and “sickening holocaust-related references to shrunken heads, soap, lampshades and smoke coming from crematorium chimneys”.

789

Forstater v CGD Europe, Appeal no. UKEAT/0105/202/JOJ, 10 June 2021.

790

Barbulescu v. Romania, Application no. 61496/08 (Grand Chamber decision) para 71; Botta v. Italy, Application no. 21439/93, para 32, Peck v United Kingdom (2003) EHRR 287 (Application no. 44647/98).

791

  Friend and Others v. the United Kingdom, Application nos. 16072/06 and 27809/08.

792

  The English text of Article 8, on the right to respect for private and family life, says “in accordance with the

law”. However, the French text of the Convention uses “prevues par la loi” for both. The ECtHR has held that since both French and English texts are equally authentic the two phrases must, so far as possible, be interpreted compatibly. Sunday Times v United Kingdom, para 48.

793

Peringek v Switzerland, Application no. 27510/08.

794

In our recent report on the communications offences, one of our objections to the use of the standard “grossly offensive” in the current legislation was that someone sending a communication could not foresee with reasonable certainty whether a court would consider it grossly offensive. Modernising Communications Offences (2021) Law Com 399, para 2.17.

795

TERF stands for “trans-exclusionary radical feminist”, although it has come to be used to refer to people with gender-critical views more broadly, whether or not they are radical feminists. In Miller v College of Policing, it was held that TERF “can be a pejorative term”.

796

 Redmond-Bate v DPP [1999] EWHC Admin 733, 20.

797

Miller v College of Policing and the Chief Constable of Humberside [2020] EWHC 225 (Admin). Mr Miller was the subject of a complaint to Humberside Police in respect of a number of messages posted on Twitter relating, broadly, to transgender issues. In response, an officer from the Humberside Police visited Mr Miller at his workplace and warned him as to his future conduct. Mr Miller applied for judicial review of the actions of Humberside Police, and of the College of Policing’s Hate Crime Operational Guidance, on the grounds that both were an impermissible interference with his Article 10 rights. The High Court upheld the complaint against Humberside Police, finding that the messages were “for the most part, either opaque, profane, or unsophisticated” but “congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons” and constituted political speech. It held that the police officer’s visit to his workplace was an interference with Mr Miller’s Article 10 rights, and that as there was “no evidence that the Claimant either had, or was going to escalate his tweets so that they potentially would amount to a criminal offence” it was not “prescribed by law” or proportionate.

However, the court held that the Hate Crime Operational Guidance was a proportionate interference with Article 10 rights, since its aims were legitimate, and “the recording of non-crime hate incidents barely encroaches on freedom of expression”. This aspect of the judgment has been appealed by Mr Miller, but judgment has not yet been handed down.

798

Letter from the Lord Chancellor and the Minister of State for Crime, Safeguarding and Vulnerability to Philip Davies MP, 9 July 2021.

799

See our discussion of this in Harmful Online Communications: The criminal offences (2020) Law Commission Consultation Paper 248, paras 3.118 to 3.119 and Modernising Communications Offences (2021) Law Com 399, paras 2.91 to 2.92.

800

Miller v College of Policing and the Chief Constable of Humberside [2020] EWHC 225 (Admin).

801

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 18.281 to 18.285.

802

See paras 10.543 and following.

803

Public Order Act 1986, s 17.

804

For the possession offence, the test is that the material was held with a view to being displayed, published, played, shown, distributed, or included in a programme service, with intent thereby to stir up racial hatred or if racial hatred is likely to be stirred up thereby.

805

Serious Crime Act 2007, ss 44 to 47.

806

Ofcom Broadcast Bulletin no. 205, May 2012, pp 4 to 15.

807

Serious Crime Act 2007, s 44.

808

Serious Crime Act 2007, s 45.

809

Ofcom Broadcast Bulletin no. 205, May 2012, p 7.

810

Equality Act 2010, s 29 read with ss 9, 10 and 13.

811

Until 2010 it was unlawful to induce a person to commit an act of unlawful racial discrimination under the Race Relations Act 1976, s 31. However, the scope of this was restricted by the Equality Act 2010, s 111 to cases where the person inciting the unlawful discrimination was themself in a position to discriminate unlawfully against the person they were seeking to influence.

812

The European Court of Human Rights has considered the complicated position of boycotts on several occasions. In Baldassi v France, Application no. 15271/16, which concerned a boycott of Israeli goods, the court noted “A boycott is primarily a means of expressing a protest. Therefore, a call for a boycott, which is aimed at communicating protest opinions while calling for specific protest actions, is in principle covered by the protection set out in Article 10 of the Convention. However, a call for a boycott constitutes a very specific mode of exercise of freedom of expression, in that it combines the expression of a protesting opinion with incitement to differential treatment, so that, depending on the circumstances, it may amount to a call to discriminate against others. Incitement to discrimination _ is one of the limits which should never be overstepped in exercising freedom of expression.”

813

There are two exceptions to this. First, where the offence encouraged is murder, the maximum penalty is life imprisonment, whereas for committing murder the mandatory sentence is life imprisonment. Second, where a person is convicted of encouraging one or more imprisonable offences, the maximum penalty is the longest term available for any of the offences in contemplation.

814

The infamous “Punish a Muslim” letter, for instance, encouraged recipients - among other things - to “verbally abuse a Muslim” and “pull the headscarf off a Muslim woman”. See https://www.cps.qov.uk/cps/news/anti-muslim-extremist-who-praised-us-killer-sentenced.

815

In theory, if these assaults were carried out, it might be possible to have the inciter charged separately as a procurer in each case. However, in practice it will rarely be possible to tie each instance to the act of generalised incitement to the specific act of violence. Moreover, we consider that the inciter’s culpability in doing an act which is likely to encourage multiple acts of violence is high, even where those acts are not ultimately carried out.

816

Criminal Justice and Immigration Act 2008, s 63.

817

C McGlynn and E Rackley, “Criminalising extreme pornography: a lost opportunity” (2009) 4 Criminal Law Review 245; and C Itzin, A Taket, and L Kelly, “The evidence of harm to adults relating to exposure to extreme pornographic material: a rapid evidence assessment (2007) Ministry of Justice Research Series, 11(07)

818

Mrs Justice Cheema-Grubb, Sentencing Remarks, 2 February 2018.

819

  R v Ahmed, Ali and Javed.

820

 R v Dymock.

821

 R v Parnham.

822

  R v Bonehill-Paine. The use of this phrase was a deliberate reference to a well-known herbicide used by

gardeners to kill invasive plant species.

823

  Jen Neller (forthcoming), Stirring Up Hatred: Myth, Identity and Order in the Regulation of Hate Speech.

824

  Jen Neller (forthcoming), Stirring Up Hatred: Myth, Identity and Order in the Regulation of Hate Speech.

825

Mandla (Sewa Singh) v Dowell Lee [1982] UKHL 7 [1983] 2 WLR 620.

826

The Scotsman, 25 November 2020.

827

Crime and Courts Act 2013, s 57.

828

Examples included a protestor who received a summons after displaying a sign claiming “Scientology is a cult”; a man who was prosecuted (and convicted and fined, although both were quashed on appeal) for growling at two dogs; a student arrested for asking a mounted police officer “Do you realise your horse is gay?”; the campaigner Peter Tatchell, who was arrested for displaying placards condemning the persecution of LGBT people by Islamic governments; a street preacher who was arrested after telling a police officer he believed homosexuality was a sin; and an atheist pensioner who was threatened with arrest for displaying a sign in his window saying “religions are fairy stories for adults” (http://reformsection5.org.uk/#?sl=3).

829

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 18.204.

830

This is reinforced by the fact that s 31 of the Crime and Disorder Act 1998, which creates a racially or religiously aggravated version of the offences in sections 4, 4A and 5, had to include a deeming provision in relation to the section 5 offence, whereby references to ‘victim’ in the hostility test should be read as references to the person likely to be caused harassment, alarm or distress, because the section 5 offence does not involve the targeting of a victim.

831

In this respect, it should also be noted that the Hate Crime and Public Order (Scotland) Act 2021, which extended the stirring up racial hatred offence to other characteristics used “threatening or abusive” for the newly covered characteristics. The New Zealand Government has also announced plans to remove “ridicule” from the corresponding offence in section 131 of the Human Rights Act.

832

Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) para 5.10.

833

Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) para 5.12.

834

Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) para 4.9.

835

Strictly speaking, this “defence” operates differently across the various offences. For offences of publishing or distributing written material, staging a play, showing or distributing a recording, or including material in a programme service, the burden of proof lies with the defence. For the “use of words or behaviour” offence this provision is not phrased as a defence and where the burden of proof lies is not stated: it is probably for the defence to raise the issue but having done so, for the prosecution to show that the person did know or was aware that the words or behaviour might be threatening, abusive or insulting.

836

Free Speech Union, “Ten Reasons to throw out the Law Commission’s Anti-Free Speech Proposals”.

837

Parkin v Norman [1983] QB 92, [1982] 3 WLR 523, [1982] 2 All ER 583. For reasons we discuss at paras 10.120 to 10.124, we are satisfied that this is the relevant test for the stirring up offences.

838

The law does recognise that in some circumstances making threats may be legitimate. For instance, the Malicious Communications Act 1988 excludes a threat “used to reinforce a demand made on reasonable grounds” where the defendant had reasonable grounds for believing that the use of the threat was a proper means of reinforcing the demand. The law on stirring up hatred does also protect “abuse” of religion and of particular religions (we recommend that this protection should be retained and should be extended to cover abuse of particular countries or their governments).

839

We did not suggest that “no proof would be required”.

840

  [1983] QB 92, 100.

841

Modernising Communications Offences (2021) Law Com 547, p 39, para 2.110 and fn 56.

842

Pwr, Akdogan and Demir v DPP [2020] EWHC 798 (Admin).

843

This provides that “A person in a public place commits an offence if he (a) wears an item of clothing, or (b) wears, carries or displays an article in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”.

844

Index also drew attention to an error in the consultation paper where we attributed to Lord Nicholls in re H [1995] UKHL 16, the statement “[t]he word ‘likely’ in ordinary language may mean probable, in the sense of more likely than not; or it may include what might well happen”. This was actually from Lord Lloyd’s dissenting judgement in the same case (though he concurred with the majority on the meaning of “likely to”).

845

  [2001] UKHL 9.

846

  [1986] 1 WLR 674.

847

See Hate Crime: Should the Current Offences be Extended (2014) Law Com 348, paras 7.119 to 7.134.

848

Hate Crime: Should the Current Offences be Extended? (2014) Law Com No 348, para 7.51

849

R v Ali, Javed and Ahmed (2012), Sentencing remarks of HHJ Burgess, 10 February 2012.

850

See House of Commons Petitions Committee, “Online abuse and the experience of disabled people”, 201719: HC 1459, para 35.

851

Modernising Communications Offences (2021) Law Com 399.

852

Galop, Online Hate Crime Report 2020, pp 8 and 11.

853

L Burch, “‘You are a parasite on the productive classes’: online disablist hate speech in austere times” (2017) 33 Disability & Society 392. It is not clear whether the comments on the online forum Reddit cited by Burch were posted within or targeted at the UK.

854

We discuss this terminology at paras 4.216 to 4.229 above.

855

See Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) p 30.

856

Personal response.

857

We discuss this further at paras 10.527 to 10.530.

858

Andrew Tettenborn, “Misogyny is not a hate crime”, The Critic, September 2020.

859

Andrew Tettenborn, “Misogyny is not a hate crime”, The Critic, September 2020.

860

Commission for Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) p 26; “Middlesbrough fantasist Anwar Driouich jailed for explosive substance”, BBC News, 7 March 2020.

861

Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) p 26; “Gabrielle Friel: An ‘incel follower’ obsessed by mass murder”, The Times, 13 January 2021.

862

Elliot Rodger, “How misogynist killer became ‘incel hero’”, BBC News, 26 April 2018.

863

“Plymouth shooting: thousands of boys drawn to ‘incel’ sites urging them to kill women”, Sunday Times, 15 August 2021; Matthew Weaver and Steven Morris, “Plymouth gunman: a hate-filled misogynist and 'incel'", The Guardian, 13 August 2021.

864

For instance, a meme reading “She put you in the friend zone. Put her in the rape zone.”

865

“How MI5 got lucky with hotline call”, Daily Telegraph, 1 May 2007.

866

Nazir Afzal’s Diary, New Statesman, 23 May 2018. Shashank Joshi of the Royal United Services Institute also linked the attack to misogyny being “deeply rooted in the radical Islamist worldview” (Washington Post, 23 May 2017).

867

D Lawrence, L Simhony-Philpott and D Stone, Antisemitism and Misogyny: Overlap and Interplay (2021).

868

Andrew Tettenborn, “Misogyny is not a hate crime”, The Critic, September 2020.

869

Public Order Act 1986, s 29AB.

870

D Lawrence, L Simhony-Philpott and D Stone, Antisemitism and Misogyny: Overlap and Interplay (2021)

871

Indictments Act 1915, s 3(1).

872

See paras 8.187 to 8.192 where we discuss the principle of fair labelling.

873

R v Chipunza [2021] EWCA Crim 597. Section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 set a minimum sentence of three years’ imprisonment for a third “domestic” burglary, defined as a burglary committed in respect of a building or part of a building which is a dwelling. The provision is now in s 314 of the Sentencing Code.

874

Sections 18(4) and 29B(4) provide a defence where the accused proves that they were in a dwelling and had no reason to believe that the words or behaviour would be seen or heard by a person outside that or any other dwelling. However, while this would provide a defence to the person who wrongly believed their words could not be heard outside the dwelling, it would not cover a person who wrongly believes the building they are in constitutes a dwelling.

875

“Law Commission revisits proposals amid ‘hate crime at home’ furore”, Law Society Gazette, 10 February 2021; “Offensive comments made at private dinner tables will not be classed as hate crimes”, Telegraph, 10 February 2021.

876

Human Rights Act 1993, s 61(1)(b), Summary Offences Act 1981, s 2(1).

877

Racial Discrimination Act 1975 (Cth) s 18C; Criminal Code 2002 (ACT) s 750 (1)(d); Criminal Code Compilation Act 1913 (WA) ss 77 and 78.

878

Racial Discrimination Act 1975 (Cth) s 18C (2); Criminal Code Compilation Act 1913 (WA) s 80E.

879

Criminal Code 2002 (ACT) s 750 (1)(e).

880

Crimes Act 1900 (NSW) s 93Z (5); Anti-Discrimination Act 1991 (Qld) s 124, 131A and 4A; Racial Vilification Act 1996 (SA) sections 4 and 3; Anti-Discrimination Act 1998 (Tas) ss 19 and 3.

881

R v Keegstra [1990] 3 SCR 697.

882

R v Goldman [1980] 1 SCR 976.

883

R v Marakah [2017] 2 SCR 608.

884

TELUS Communications Company v the Queen 2013 SCC 16 [2013] 2 SCR 3.

885

R v Keegstra [1990] 3 SCR 697.

886

Racial and Religious Tolerance Act 1991 (Vic) s 12.

887

In the Matter of JR38 [2015] UKSC 42.

888

David Murray (by his litigation friends Neil Murray and Joanne Murray) v Big Pictures (UK) Limited [2008] EWCA Civ 446. Joanne Murray is the author JK Rowling.

889

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 18.252.

890

In the Scottish case of BC v Chief Constable of Scotland [2020] SCIH 61 it was held that police officers who were members of two WhatsApp groups (with fifteen and seventeen members respectively) could not have a reasonable expectation of privacy in respect of sexist, racist, antisemitic, homophobic and disablist messages, since they knew that other members of the group, being police officers, would be under a duty to report such conduct by a colleague.

891

This offence covers threatening or abusive (but not insulting) conduct within the hearing or sight of a person likely to be caused harassment, alarm or distress. There is a defence available where the accused can prove that he or she had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress.

892

Charging an aggravated offence is currently only possible on grounds of racial or religious hostility, but if our recommendation 12 were implemented, any hostility based on a protected characteristic would be covered.

893

Public Order Act 1986, ss 29 and 29N.

894

Free Speech Union, “The Law Commission would make Mohammed cartoons illegal”: The FSU claimed that it was “clear” that a reference to “Islamaphobic cartoons ...” [ellipsis in the FSU text, not the consultation paper] included the images of Muhammad published in Charlie Hebdo. The untruncated text referred to “Islamophobic cartoons cited by the Home Affairs Committee” [emphasis added] with a footnote pointing the page of the Home Affairs Committee report in question. This, in turn, referred to “a cartoon of a white woman being gang raped by Muslims over the ‘altar of multiculturalism’; a cartoon stating that ‘Muslims rape’” and “a cartoon that we reported depicting a group of male, ethnic minority migrants tying up and abusing a semi-naked white woman, while stabbing her baby to death.” It did not refer to Charlie Hebdo or images of Muhammad in general.

895

Loi sur la liberte de la presse, 29 juillet 1881, art. 23, 24.

896

Response by the Danish Government to letter of 24 November 2005 from UN Special Rapporteur on freedom of religion or belief, Ms. Asma Jahangir, and UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Mr. Doudou Diene, regarding cartoons representing the Prophet Mohammed published in a newspaper, 23 January 2006.

897

However, we do think that the NSS have highlighted one important issue - namely the risk that the existing legislation could be interpreted as covering not only material which foments hatred, but that which provokes hatred. We are satisfied that this was not the intention behind the legislation. As Jen Neller has put it, the stirring up offences “concern speech addressed to third parties who might be incited to hate, rather than speech addressed directly to its targets”. In the original 1965 offence this was clear, because the law required intent to stir up hatred against a group and the likelihood of stirring up hatred against the same group. With its reformulation in 1976 and 1986, this explicit link was lost. Publishing material that is likely to provoke people offended by it into a violent or hateful response against a group is not explicitly excluded. We do not think this is something the law was ever intended to cover, but are satisfied that the courts do not interpret the legislation this way.

898

Pepe the Frog is a cartoon frog, created by American illustrator Matt Furie. Around 2016, the meme was sought to be appropriated by figures associated with white nationalist and “Alt-Right” movements.

899

Horvath and Vajnai v Hungary, Application nos. 55795/11 and 55798/11.

900

See https://www.adl.org/hate-symbols.

901

See https://www.adl.org/education/references/hate-symbols/pepe-the-frog.

902

The Oxford English Dictionary describes an emoji as “A small digital image or icon used to express an idea, emotion, etc., in electronic communications”. The Unicode Standard - a standard intended for consistent encoding of text in most of the world’s writing systems - contains over three thousand emojis. Some emojis have innuendo meanings - for instance, the aubergine is often used to represent a penis - meaning that they can be used to express ideas not explicitly catered for within the corpus.

903

The term “meme” is often used to refer to ideas, behaviours or styles that are spread via the Internet, often for humorous purposes. It can be used to refer to a range of phenomena, including videos, images and even challenges. Memes often have several layers of meaning, sometimes building off previous memes, meaning that it a meaning may be apparent to some viewers but not to others.

904

Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) para 3.10.

905

GIF stands for “Graphics Interchange Format” an image format in widespread use in internet communications, which enables visual images, including animated images to be compressed, meaning that small lower quality images and short soundless videos can be sent using very little data. The term is sometimes used for any small still or animated images sent using the internet.

906

Commission for Countering Extremism, Operating with Impunity - Hateful Extremism: the need for a legal framework (February 2021) para 5.18.

907

Professional Footballers Association / KickItOut, “AI Research Study: Online Abuse and Project Restart”, p 1.

908

The tweet was composed of emojis depicting knives, monkeys, bananas, and a thumb-up symbol.

909

By way of comparison, the Criminal Justice and Public Order Act 1994 extended the offences relating to indecent photographs of children in the Protection of Children Act 1978 to “pseudo-photographs”. A deeming provision stated that “references to an indecent pseudo-photograph include . (b) data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph.”.

Clearly, (b) only clarified the term “pseudo-photograph” within the expression; otherwise any digitally stored pseudo-photograph would be an indecent photograph, however innocuous the image it encoded.

910

Theatres Act 1968, s 2. This replaced the application of any common law offences in respect of the content of plays, and was based on the test of obscenity in the Obscene Publications Act 1959.

911

Theatres Act 1968, s 6. This was based on the offence in the Public Order Act 1936, s 5.

912

Theatres Act 1968, s 5. This was based on the stirring up offence in the Race Relations Act 1965.

913

Theatres Act 1968, s 18(2).

914

Section 4(d) of the Theatres Act provides that offences where it is of the essence that the conduct was “obscene, indecent, offensive, disgusting, or injurious to morality”, and the offences of conspiracy to corrupt public morals or to do an act contrary to public morals or decency, do not apply to plays.

915

Sections 20(6) and 29D(5) of the Public Order Act 1986 provide that sections 9, 10 and 15 of the Theatres Act 1968 apply to the offences in section 20 and 29D as they apply to offences in the Theatres Act. These allow a script to be used as evidence of what was performed, with a rebuttable presumption the performance was in accordance with the script; create a power for a senior police officer to demand a copy of the script; and enable police officers and licensing authorities to obtain a warrant to enter premises in order to attend a performance or inspect the premises.

916

Broadcasting is an issue reserved to Westminster under the Scotland Acts.

917

“Consent, connivance or neglect” is a test often used for criminal liability of directors and senior managers when a corporate body commits an offence. We are not aware of legislation using it as the basis of liability of a person for the conduct of another natural person.

918

Fred Mackintosh QC, “Practical problems with the Hate Crime and Public Order Bill” (20 July 2020), available at https://www.scottishlegal.com/article/fred-mackintosh-qc-practical-problems-with-the-hate-crime-and-public-order-bill.

919

An advantage of this approach is that “procuring” does not require the person actually doing the conduct in question to have the fault that would make them guilty of the offence. For instance, if A asks B to destroy property belonging to a third party, telling her that the property belongs to him and he needs to dispose of it, A can be guilty of procuring criminal damage, even though B would not be guilty (because she believed that the owner had consented to the destruction). Applied to the stirring up offences, a secondary party could be liable for procuring an act of stirring up hatred if they intended to stir up hatred or knew that hatred was likely to be stirred up, even though the person who had used the words was not guilty of an offence because they had no such intention or knowledge and were merely taking part as a performer. Therefore, accessory liability is compatible with a “performer” defence in a way which the initial Scottish proposals were not.

920

Ofcom Broadcast and On Demand Bulletin 383, July 2019; Ofcom, Decision Notice - Lord Production, 5 May 2020.

921

Ofcom Broadcast and On Demand Bulletin 397, February 2020; Ofcom, Decision Notice - Worldview Media Network Ltd, 22 December 2020.

922

Ofcom Broadcast and On Demand Bulletin 327, April 2017.

923

Ofcom Broadcast and On Demand Bulletin 304, May 2016; Ofcom, Decision Notice - Mohiuddin Digital Television Ltd, December 2016.

924

Ofcom Broadcast and On Demand Bulletin 299, February 2016; Ofcom, Decision Notice - Club TV Ltd, November 2016.

925

Ofcom Broadcast Bulletin 207, June 2012; Ofcom, Decision - Radio Asian Fever, November 2012.

926

Criminal Code, s 319(7).

927

Human Rights Act 1993, s 61.

928

Prohibition of Incitement to Hatred Act 1989, s 3.

929

The provision does not feature in the section 29D offence relating to plays in the context of religious hatred and hatred on the grounds of sexual orientation because these offences require intent, whereas the ‘circumstances’ provision only applies to the “likely to” limb.

930

If, however, this gameplay was recorded and distributed, the recording could separately constitute inflammatory hate material where its distribution was intended or likely to stir up hatred.

931

See for instance, “Far right video game encourages homophobic mass shootings”, Pink News, 13 November 2018; “How far right uses video games and tech to lure and radicalise teenage recruits”, The Guardian, 14 February 2021.

932

Because the racial hatred offences predated the E-Commerce Directive, they were not covered by a specific regulation but by the Electronic Commerce (EC Directive) Regulations 2002. The point of origin principle has not yet been removed from these Regulations.

933

Department for Digital, Culture, Media and Sport, “The eCommerce Directive and the UK” (2021), available at https://www.gov.uk/guidance/the-ecommerce-directive-and-the-uk.

934

Mutual legal assistance (MLA) is a method of cooperation between states for obtaining assistance in the investigation or prosecution of criminal offences. MLA is generally used for obtaining material that cannot be obtained on a police cooperation basis, particularly enquiries that require coercive means. The UK has an MLA treaty with the United States. However, the Treaty allows each party to refuse a request for the search and seizure of material if it relates to conduct which would not be exercisable in its own state. Given the high degree of constitutional protection for speech in the United States, American authorities would rarely be able to obtain authority for a search or seizure on the basis that material was intended or likely to stir up hatred, and accordingly would be unable to use such powers to obtain such material under an MLA request.

935

Department for Digital, Culture, Media and Sport, “Landmark laws to keep children safe, stop racial hate and protect democracy online published”, Government Press Release, 12 May 2021, available at

https://www.qov.uk/qovemment/news/landmark-laws-to-keep-children-safe-stop-racial-hate-and-protect-democracy-online-published.

936

Protection of Children Act 1978 read with Electronic Commerce Regulations 2002, s 19.

937

Terrorism Act 2006, s 3(2).

938

See for instance Big Brother Watch, “The State of Free Speech Online”, September 2021.

939

In laying the Draft Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010, the Minister, Claire Ward MP, noted “It is debateable whether conduits, caches and hosts could ever commit the offences of stirring up religious hatred or hatred on the grounds of sexual orientation. The offences require an intention that hatred will be stirred up. It is very unlikely that intermediary service providers would have that intention. But the regulations put the position of such service providers beyond doubt”; Delegated Legislation Committee Debates, 2 February 2010, Col. 3.

940

In 2018, for instance it was discovered that a number of far-right and antisemitic books were listed on the websites of major publishers in the UK. Waterstones’ managing director explained the difference between the firm’s physical and online presences: “Were any of the books listed by Hope Not Hate to be on our shelves, I would have them removed and apologise. Our website, however, is a simple listing of titles lawfully published and made available through established publishers and distributors”.

941

Sections 28 and 29M provide for “offences by corporations”, providing that where a corporation is guilty of an offence, a director, manager or secretary or other senior officer can be convicted if the offence was committed with their “consent or connivance”. “Manager” in such provisions has been interpreted as meaning “a person who has the management of the whole affairs of the company” (Gibson v Barton [1875] LR 10 QB 329; re B Johnson [1955] Ch. 634) or “those who are in a position of real authority, the decisionmakers within the company who have both the power and responsibility to decide corporate strategy” (R v Boal [1992] QB 591, 2 WLR 890). “Secretary” means the Company Secretary.

942

For instance, if the column were libellous, the editor could be sued personally as well as the writer and the publisher (the publisher’s liability is broader under civil law than criminal law).

943

A Ashworth and J Horder, Principles of Criminal Law (7th ed, 2013) p 488.

944

Conspiracy and Attempts (2007) Law Commission Consultation Paper No 184, para 4.49.

945

Criminal Attempts Act 1981, s 1(1).

946

Strictly speaking the provisions in sections 29J and 29JA apply to both religious hatred and hatred on grounds of sexual orientation, but those in 29J are targeted at the former and those in 29JA at the latter.

947

Judge Desmond Marrinan (2020) Hate crime legislation in Northern Ireland: Final Report, paras 9.343 to 9.345.

948

Hate Crime and Public Order (Scotland) Act 2021, s 9.

949

Giniewski v France, Application no. 64016/00, 31 January 2006.

950

The Court went on to hold that in the particular circumstances of the case “the applicant sought primarily to develop an argument about the scope of a specific doctrine and its possible links with the origins of the Holocaust. In so doing he had made a contribution, which by definition was open to discussion, to a wide ranging and ongoing debate... In such matters, restrictions on freedom of expression are to be strictly construed.”

951

Modernising Communications Offences (2021) Law Com 547, para 7.44.

952

Humza Yousaf MSP, Response by the Scottish Government to the Stage 1 Report by the Justice Committee, 14 December 2020.

953

Criminal Justice and Immigration Act 2008, s 79.

954

Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Act 2018; Hate Crime and Public Order (Scotland) Act 2021, s 16.

955

Under section 1(2) of the Defamation Act 2013 a statement is not defamatory of a body that trades for profit unless it has caused or is likely to cause serious financial loss.

956

Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (repealed 2018).

957

Although the provision in s 29JA(2) for “discussion and criticism of marriage to which the sex of the parties to the marriage” is phrased in neutral terms, this is clearly what the clause is intended to protect.

958

Offences Against Religion and Public Worship (1985) Law Com 145, para 2.35 (emphasis added).

959

Karata§ v Turkey, Application no. 23168/94.

960

See para 10.27.

961

Forstater v CGD Europe, Appeal no. UKEAT/0105/202/JOJ, 10 June 2021, para 114.

962

See paragraph 10.449 above.

963

In February 2020, Kate Scottow was convicted of an offence of improper use of a communications network, contrary to s 127(2) of the Communications Act 2003. The specific context of the communications was an injunction that the recipient had obtained against Ms Scottow following allegations of ‘misgendering’ and ‘deadnaming’ made by a trans rights activist. Ms Scottow successfully appealed to the High Court on the basis that (i) the offence was not aimed at offensive communications (which were addressed by s 127(1)), but the deliberate misuse of facilities with the purpose of causing annoyance, inconvenience and anxiety; and (ii) the communications in question could not be described as persistent. Crucially, however, the High Court also found that the magistrates’ court had failed to engage with the defendant’s Article 10 rights, and had it done so, the case would have been dismissed. Scottow v CPS [2020] EWHC 3421 (Admin).

964

In March 2019, District Judge John Woolard, sitting at Basildon magistrates’ court, dismissed a charge of harassment, including aggravation on the basis of hostility related to transgender identity, against Miranda Yardley. Yardley (who is herself trans) was accused of harassing trans rights campaigner Helen Islan (who is not). The Judge stated that there was no evidence of harassment, that issues of freedom of speech

enshrined in Article 10 of the ECHR were clearly engaged and that it was a case that the CPS should never have brought. See https://www.2harecourt.com/2019/03/04/gudrun-young-secures-no-case-to-answer-in-controversial-first-prosecution-for-transgender-hate-crime/.

965

Hate Crime and Public Order (Scotland) Act 2021, s 9.

966

“Un livre feministe provoque un desir de censure au ministere de l’egalite femmes-hommes”, Mediapart, 31 August 2020; The Guardian, 8 September 2020.

967

The provision provides that if it is not reasonably practicable or would be unlawful to publish a report of the proceedings contemporaneously, it applies if they are published as soon as publication is reasonably practicable and lawful, Public Order Act 1986, s 26.

968

Society of Editors, “Investigation into Darren Grimes raises concerns over free speech”, 12 October 2020.

969

“The Times view on the police inquiry into Darren Grimes”, The Times, 13 October 2020.

970

“Prosecutor criticises ‘sinister’ Met for investigating Darren Grimes over interview”, The Times, 11 October 2020.

971

“Sajid Javid and Tim Farron lead backlash against Met Police”, Daily Mail, 10 October 2020.

972

Harmful Online Communications: The Criminal Offences (2020) Law Commission Consultation Paper No

48, para 5.67.

973

See our report on Search Warrants (2020) Law Com 396, paras 12.112 to 12.173.

974

See Modernising Communications Offences (2021) Law Com 399, paras 4.31 to 4.32 and paras 10.576 to 10.579 of this report,

975

Goodwin v United Kingdom, Application no. 17488/90 (1996) 22 EHRR 123.

976

Thoma v Luxembourg, Application no. 38432/97, 2001

977

The ‘Greenjackets’ (“gnanjakkerne”) were a group of young people from 0sterbro who expressed virulently racist attitudes and some of whom admitted to having committed hate crimes against immigrant families.

978

Criminal Code, s 319(3)(d).

979

Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (2nd Cir. 1977) (emphasis added).

980

Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 (2nd Cir. 1977).

981

“Police drop investigation into Darren Grimes and David Starkey over slavery comments in interview”, Press Gazette (12 October 2021, updated 21 October 21), available at http://pressgazette.co.uk/youtuber-darren-grimes-threatened-with-arrest-over-reporting-of-david-starkeys-slavery-comments/.

982

Modernising Communications Offences (2021) Law Com 547, para 4.31.

983

Roberts v Gable [2007] EWHC Civ 721, 34.

984

Jameel v Wall Street Journal Europe Sprl [2006] HL 44, 62.

985

Newspaper is defined as “a paper containing public news or observations on public news, or consisting wholly or mainly of advertisements, being a newspaper that is published periodically at intervals not exceeding 3 months.”

986

In March 2021, the News Media Association launched a campaign against “fake” local newspapers produced by political parties. The Electoral Commission has also reported concern about such materials having been expressed by voters in its review of the 2019 General Election.

987

In 1836 the official parliamentary reporter Hansard published, by order of the House of Commons, a report claiming that an indecent book published by John Joseph Stockdale. Stockdale sued Hansard for libel, the court holding that the House of Commons alone had no privilege to order publication of defamatory material outside Parliament. In response, Parliament passed the Parliamentary Papers Act 1840 establishing that publications under the authority of either House enjoy absolute privilege in both criminal and civil proceedings, as do any copy, and - absent proof of malice - extract. Strictly speaking, Stockdale v Hansard was about material published under the authority of one or both Houses of Parliament, whereas reports of proceedings in Parliament are only privileged in respect of defamation.

988

Contempt of Court (2): Court Reporting, Law Com 344, para 1.10.

989

This is implied by the fact that section 29K of the Public Order Act 1986 applies the exclusion for “fair and accurate” reports of Parliamentary and judicial proceedings to the offences of stirring up religious hatred and hatred on grounds of sexual orientation, even though these offences require an intent to stir up hatred.

990

Sorgug v Turkey, Application no. 17089/03, 35. Sapan v Turkey, Application no. 44102/04.

991

House of Commons / House of Lords Joint Committee on Human Rights, Freedom of Speech in Universities, 2017-19: HC 589, HL 111.

992

Miller v College of Policing and the Chief Constable of Humberside [2020] EWHC 225 (Admin) para 243.

993

Remi Adekoya, “Eric Kaufmann, and Thomas Simpson, Academic Freedom in the UK: Protecting viewpoint diversity” (2020) Policy Exchange, p 40.

994

Department for Education, Higher Education: free speech and academic freedom (February 2021) CP 394.

995

House of Commons / House of Lords Joint Committee on Human Rights, Freedom of Speech in Universities, 2017-19: HC 589, HL 111.

996

Remi Adekoya, Eric Kaufmann, and Thomas Simpson, Academic Freedom in the UK: Protecting viewpoint diversity, Policy Exchange, 2020.

997

Section 6 of the Defamation Act 2013 provides that a peer-reviewed statement in a scientific or academic journal attracts qualified privilege (i.e. it is not privileged if it is shown to be made with malice). This extends to an any assessment of the statement’s scientific or academic merit made in the course of peer-review, and any fair and accurate copy, extract or summary of the statement.

998

Particularly relevant in the campaign for libel reform organised jointly by Index on Censorship and Sense about Science were the case brought against science journalist Simon Singh for criticism of the British Chiropractic Association for promoting treatments with no demonstrable evidence (see British Chiropractic Association v Simon Singh [2009] EWHC 1101 (QB)); and four cases brought in the UK against cardiologist Peter Wilmshurst by NMT Medical after questioning its clinical trial results at an academic conference in the United States (NMT went out of business before the cases could be tried). In 2010, editors of some British scientific journals told BBC News they had withdrawn what they regarded as perfectly good articles for fear of libel action (Pallab Ghosh, ‘NMT libel case intensifies for cardiologist’, BBC News, 2 November 2010).

999

The Times, 8 November 2020.

1000

Oberschlick v Austria, Application no. 11662/85, 23 May 1991.

1001

Vereinigung Bildender Kunstler v. Austria, Application no. 68354/01,25 January 2007.

1002

Chambers v DPP [2012] EWHC 2157 (Admin).

1003

Miller v College of Policing and the Chief Constable of Humberside [2020] EWHC 225 (Admin), para 251.

1004

Chambers v DPP [2012] EWHC 2157.

1005

Jersild, para 26.

1006

Index on Censorship, “Taking the Offensive: Defending artistic freedom in the UK”, Conference Report, May

2013. See http://www.indexoncensorship.org/takingtheoffensive/.

1007

Arts Professional, Freedom of Expression, February 2020.

1008

Jelsevar and Others v. Slovenia, Application no. 47318/07 (3 April 2014) (decision on admissibility).

1009

Christian Institute, “Hate crime reform threat to free speech”, December 2020.

1010

Consents to Prosecution (1998) Law Com 255.

1011

We felt that the decision to prosecute in cases which involve national security or an international element might involve questions of public policy, national or international, going beyond the facts of the case, and accordingly it was in the democratic interest that such decisions should be made by an officer who is accountable to Parliament.

1012

Law Commission, Consent to Prosecution, Consultation Paper, para 7.17. The Law Officers - the Attorney General and Solicitor General - are Government appointments, usually drawn from the governing party’s MPs or peers.

1013

This was in respect of claims made during the campaign ahead of the referendum on the UK’s membership of the EU in 2016. However, it is also worth noting that following Mr Johnson’s comments on the burqa in 2018, an accusation - although not a legal complaint - that this was an “attempt[] to stir up racial intolerance” was made by the then Shadow Chancellor (Daily Mirror, 11 August 2018).

1014

Misconduct in Public Office (2020) Law Com 397, para 8.43.

1015

Electoral Law: a Joint Final Report (2020) Law Com 389, Scot Law Com 256, p 140.

1016

In 2016 the then Home Secretary Amber Rudd was reported to police by Professor Joshua Silver of Oxford University over the contents of her speech to the Conservative Party conference, in which she had suggested that firms might be required to disclose the proportion of foreign workers they employ. Despite concluding that no offence had been committed, West Midlands Police recorded it as a non-crime hate incident. In our Consultation Paper, we gave examples of the criticisms made of both the reporting of the speech as a hate crime and the recording of it as a hate incident. See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 18.281 to 18.283.

1017

  DPP v Stoke-on-Trent Magistrates Court [2003] EWHC 1593 (Admin).

1018

KickItOut is a registered charity established to challenge racism and discrimination in football.

1019

These include the Football (Offences) Act 1991, The Football Spectators Act 1989, the Football Spectators (Seating) Order 1994, the Football (Offences and Disorder) Act 1999, and the Football (Disorder) Act 2000. The Sporting Events (Control of Alcohol) Act 1985 was framed in neutral terms, but only football matches have been designated under it.

1020

The online abuse was widely reported. See BBC, “Racist abuse of England players Marcus Rashford, Jadon Sancho & Bukayo Saka 'unforgivable'” (12 July 2021), available at

https://www.bbc.co.uk/sport/football/57800431/. A number of arrests were also made in relation to the online abuse targeting the players. See Samuel Meade, “11 arrests made for online racism directed at Marcus Rashford, Jadon Sancho and Bukayo Saka” (5 August 2021) Mirror, available at https://www.mirror.co.uk/sport/football/news/rashford-sancho-saka-racism-arrests-24693297.

1021

  DPP v Stoke-on-Trent Magistrates Court [2003] EWHC 1593 (Admin).

1022

DPP v Dykes [2009] Crim LR 449.

1023

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 19.34 to 19.42.

1024

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 19.40.

1025

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 19.39.

1026

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 19.41 to

19.42.

1027

On the other hand, there is evidence that the presence of Muslim players can have a positive impact on supporters’ attitudes. See for instance, Ala’ Alrababa’h, William Marble, Salma Mousa, and Alexandra Siegel, “Can Exposure to Celebrities Reduce Prejudice? The Effect of Mohamed Salah on Islamophobic Behaviors and Attitudes.” Immigration Policy Lab Working Paper 19-04, July 2019, American Political Science Review. The authors point to chants such as “Mohamed Salah, A gift from Allah” and “If he scores another few, Then I'll be Muslim, too”, and suggest that Mo Salah’s signing by Liverpool in 2017 was associated with a reduction - relative to counterfactual figures drawn from areas outside Merseyside - not only in hate speech on Twitter, but overall levels of hate crime in Liverpool.

1028

G Pearson, “A Beautiful Law for the Beautiful Game? Revisiting the Football Offences Act 1991” (2021) 85(5) Journal of Criminal Law 362.

1029

  “Government sets out action to stop online racist abuse in football”, Press Release, 15 July 2021. Available

at https://www.gov.uk/government/news/government-sets-out-action-to-stop-online-racist-abuse-in-football.

1030

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, ch 20.

1031

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.3.

1032

Created by the Domestic Violence, Crime and Victims Act 2004, s 48(1); Victims’ Commissioner website, available at https://victimscommissioner.org.uk/.

1033

Created by the Modern Slavery Act 2015, s 40(1); Independent Anti-Slavery Commissioner website, available at https://www.antislaverycommissioner.co.uk/.

1034

A non-statutory Commission created by the Government in 2018; Commission for Countering Extremism website, available at https://www.gov.uk/government/organisations/commission-for-countering-extremism/about.

1035

Created by the Domestic Abuse Act 2021, s 4; Domestic Abuse Commissioner website available, at

1036

https://domesticabusecommissioner.uk/.

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.4.

1037

  Modern Slavery Act 2015, s 41(1).

1038

  Modern Slavery Act 2015, s 41(3).

1039

Modern Slavery Act 2015, s 43.

1040

Domestic Abuse Act 2021, s 7.

1041

Domestic Abuse Act 2021, s 7.

1042

Domestic Abuse Act 2021, s 15.

1043

Modern Slavery Act 2015, s 42; Domestic Abuse Act 2021, ss 13 and 14.

1044

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.12 and

20.13.

1045

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.17.

1046

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.20 to 20.22.

1047

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.23.

1048

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.24.

1049

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.25 to

20.29.

1050

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.32.

1051

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.34.

1052

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.35 and

20.36.

1053

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.38.

1054

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.41.

1055

Home Office, Policy paper: Domestic Abuse Commissioner factsheet (18 May 2021), available at: https://www.gov.uk/govemment/publications/domestic-abuse-biH-2020-factsheets/domestic-abuse-commissioner-factsheet.

1056

  Independent Anti-Slavery Commissioner, Annual Report 2019-2020 (September 2020), available at:

https://www.antislaverycommissioner.co.uk/media/1461/ccs207 ccs0520602790-001 iasc annual-report-2019-2020 e-laying.pdf, annex A, p 50.

1057

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.44.

1058

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.45 and

20.46.

1059

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.48.

1060

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.49 to

20.51.

1061

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.50.

1062

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.51.

1063

  Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.54.

1064

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.55 to 20.59.

1065

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 20.60 to 20.62.

1066

Consultation question 62.

1067

Charles Wide, “Hostility crime and the Law Commission” (2021) Policy Exchange, p 6, available at https://policyexchange.org.uk/publication/hostility-crime-and-the-law-commission/.

1068

For example, recommendation 32 of our report in relation to protection of official data was that “An independent, statutory commissioner should be established with the purpose of receiving and investigating allegations of wrongdoing or criminality where otherwise the disclosure of those concerns would constitute an offence under the Official Secrets Act 1989.” See Protection of Official Data: Report (2020) Law Com No 395, para 10.108.

1069

Hate crime legislation in Northern Ireland, Independent Review, Final Report (December 2020) p 47. Available at https://www.justice-ni.gov.uk/sites/default/files/publications/justice/hate-crime-review.pdf.

1070

Refuge; the Jo Cox Foundation; Connected Voice; the Office of the Police and Crime Commissioner Gwent; the NPCC LGBT+ Portfolio, on behalf of the National LGBT+ Police Network; Equally Ours; Northumbria PCC; a collection of students from Newcastle University; Newcastle University Human Rights and Social Justice Forum; Roma Support Group; Schools OUT; Galop.

1071

Refuge; a collection of students from Newcastle University; Newcastle University Human Rights and Social Justice Forum; Antisemitism Policy Trust; GIRES; Dimensions; The Alan Turing Institute; Roma Support

Group; Stonewall; the Office of the Police and Crime Commissioner Gwent; University of Central Lancashire Students Union;

1072

Dimensions; Covid-19 Anti-Racism Group (CARG).

1073

Our Streets Now; Bent Bars Project; one chief officer in the NPCC; a collection of students from Newcastle University; Stonewall; Newcastle University Human Rights and Social Justice Forum; Why Me?; Muslim Council of Britain; Bar Council; Office of the Police and Crime Commissioner (PCC) for Northumbria.

1074

Refuge; Equally Ours; a collection of students from Newcastle University; Newcastle University Human Rights and Social Justice Forum; Stonewall; British Naturism; the Office of the Police and Crime Commissioner Gwent.

1075

Citations omitted.

1076

RCT People First; Tyne and Wear Chapter of Citizens UK; Our Streets Now; a collection of students from Newcastle University, Newcastle University Human Rights and Social Justice Forum; Naturist Action Group;

Tyne and Wear Chapter of Citizens UK; English PEN; the Office of the Police and Crime Commissioner Gwent.

1077

Changing Faces; Roma Support Group; British Naturism; National AIDS Trust; Connected Voice; Office of the Police and Crime Commissioner Gwent; Our Streets Now; the Alan Turing Institute; a collection of students from Newcastle University; Newcastle University Human Rights and Social Justice Forum; Connected Voice; Equality and Inclusion Partnership; Roma Support Group; Protection Approaches; Stonewall; the Office of the Police and Crime Commissioner Gwent.

1078

English PEN; Southwark Council; British Naturism; National AIDS Trust; Southwark Council; The Alan Turing Institute; a collection of students from Newcastle University; Newcastle University Human Rights and Social Justice Forum; Stonewall; Protection Approaches; the Office of the Police and Crime Commissioner Gwent.

1079

Nottingham City Council; Office of the Police and Crime Commissioner (PCC) for Northumbria; Southwark Council; Equally Ours; Refuge; NPCC LGBT+ portfolio, on behalf of the National LGBT+ Police Network; Protection Approaches; the Office of the Police and Crime Commissioner Gwent.

1080

Newcastle University Human Rights and Social Justice Forum; Antisemitism Policy Trust.

1081

Antisemitism Policy Trust; Magistrates Association; British Naturism; the Office of the Police and Crime Commissioner Gwent.

1082

  Equally Ours; Stonewall.

1083

  English PEN.

1084

Birmingham & Solihull Women's Aid; Dr Jen Neller (Birkbeck University of London).

1085

Antisemitism Policy Trust; Dimensions.

1086

Changing Faces.

1087

Equally Ours.

1088

MOPAC; Women’s Health Network; Office of the Police and Crime Commissioner (PCC) for Northumbria; Nottingham City Council; Connected Voice.

1089

The Bar Council; MOPAC; Women’s Health Network; Newcastle University Human Rights and Social Justice Forum; Office of the Police and Crime Commissioner (PCC) for Northumbria; Nottingham City Council; National AIDS Trust; Brandon Trust; Stand Against Racism & Inequality (SARI) and Bristol Hate Crime & Discrimination Services.

1090

The Bar Council; Nottingham City Council.

1091

Refuge; VAWG and Hate Crime Team, London Borough of Tower Hamlets.

1092

Stonewall; Equally Ours; Naturist Action Group; The Bar Council; MOPAC; Protection Approaches; National AIDS Trust; Connected Voice.

1093

Stonewall.

1094

Stonewall.

1095

Brandon Trust; Stand Against Racism & Inequality (SARI) and Bristol Hate Crime & Discrimination Services; Resolve West.

1096

Equally Ours.

1097

Equally Ours; Refuge; Naturist Action Group; Southwark Council.

1098

Naturist Action Group; Newcastle University Human Rights and Social Justice Forum; Office of the Police and Crime Commissioner (PCC) for Northumbria.

1099

Mishcon de Reya LLP.

1100

Birmingham & Solihull Women's Aid.

1101

Stand Against Racism & Inequality (SARI) and Bristol Hate Crime & Discrimination Services.

1102

National AIDS Trust.

1103

Welsh Government; Women’s Aid Federation of England.

1104

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, para 20.5.

1105

Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 9.19 to

9.27

1106

See Hate crime laws: A consultation paper (2020) Law Commission Consultation Paper No 250, paras 9.22 to 9.24

1107

Charles Wide, “Hostility crime and the Law Commission” (2021) Policy Exchange, p 6. Available at https://policyexchange.org.uk/publication/hostility-crime-and-the-law-commission/.