Consultation on the CPS Public Policy Statement on Racially and Religiously Aggravated Hate Crime

Consultation content

CPS policy

It is our policy to:

• Identify crimes involving hostility on the basis of race or religion as early as possible.
• Charge, where appropriate, aggravated offences under the Crime and Disorder Act (CDA) 1998.
• Build strong cases with our partners that satisfy the tests within the Code for Crown Prosecutors.
• Apply for a sentence uplift under ss 28-32 CDA 1998 or s.145 Criminal Justice Act (CJA) 2003 where there is evidence of hostility based on membership (or presumed membership) of a racial or religious group.
• Recognise that crimes relating to stirring up racial and religious hatred are by their very nature highly sensitive. For this reason, and to ensure a consistent approach given the small number of prosecutions, all such cases are considered by our Special Crime and Counter Terrorism Division. No charges can be brought without the consent of the Attorney General.
• Work closely with the police, criminal justice agencies and community stakeholders to improve our understanding of racially and religiously aggravated crime and to improve our response to it.
• Improve awareness of racially and religiously aggravated hate crime and the public confidence to report it.
• Monitor the implementation of this policy.

When deciding whether it is in the public interest to prosecute racially and religiously aggravated crimes, our prosecutors must have regard to whether the offence was motivated by any form of discrimination, including against the victim's ethnic or national origin, or religion or belief, or whether the suspect demonstrated hostility towards the victim based on any of those characteristics.

The presence of any such motivation or hostility will mean that it is more likely that prosecution is required.

Question 1: Does the section on "CPS policy" address all key issues in prosecuting racially and religiously aggravated crime?

Crimes involving hostility on the basis of race or religion

The reporting and prosecution of hate crime are shaped by two definitions; one is subjective and is based on the perception of the victim and the other is objective and relies on supporting evidence.

Both the subjective and objective definitions refer to hostility, not hatred. There is no statutory definition of hostility and the everyday or dictionary definition is applied, encompassing a broad spectrum of behaviour.

We have an agreed definition with the police for identifying and flagging cases involving hostility on the basis of race or religion. The joint definition is:

Any criminal offence which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's race or religion or perceived race or religion.

It is important that all relevant incidents are identified as hate crime as early as possible. This will enable the police to investigate and gather the best available evidence.

The legal framework

The Crime and Disorder Act 1998 (CDA 1998) created a number of specific offences of racially and religiously aggravated crime.

In addition, s.145 of the Criminal Justice Act 2003 (CJA 2003) gives the court power to increase the sentence for any other offence where there is evidence of racial or religious aggravation.

In order to treat a crime as a hate crime for the purposes of investigation, there is no need for evidence to prove the aggravating element. However, this evidence will need to be made available at a later date to prove that the CDA 1998 specific offences or that s.145 CJA 2003 applies to the case.

Stirring up hatred

In cases of stirring up hatred, we acknowledge that people have a right to freedom of speech. However, we will balance the rights of an individual to freedom of speech and expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.

Stirring up racial hatred is committed when someone says or does something which is threatening, abusive or insulting and the person either intends to stir up racial hatred or makes it likely that racial hatred will be stirred up. It covers behaviour such as making a speech, posting material online, displaying a poster, performing a play or broadcasting on the media.

Stirring up religious hatred is committed if a person uses threatening words or behaviour, or displays any threatening written material, and intends to stir up religious hatred. Stirring up religious hatred is therefore more difficult to prove than racial hatred as it is limited to threatening words or behaviour and we have to prove intent.

Question 2: Does the section on "Crimes involving hostility on the basis of race or religion" clearly set out the key definitions and law relevant to the prosecution of these crimes?

Communities affected by racially and religiously aggravated crime

We recognise that hate crime not only impacts the individual victim but also the wider community. Individual incidents can send reverberations throughout communities, just as they can reinforce established patterns of prejudice and discrimination. This is why it is so important for hate crime to be effectively prosecuted.

S.28 CDA 1998 defines "racial group" as a group of persons defined by reference to race, colour, and nationality (including citizenship) ethnic or national origins. This is a wide definition and identifies a range of people who may potentially experience hostility on these grounds including people from the different countries of the UK, tourists, workers from other countries, asylum-seekers, refugees, Gypsies and Irish Travellers and people who are UK citizens but whose national origins are from other countries.

S.28 CDA 1998 defines "religious group" as a group of persons defined by reference to religious belief or lack of religious belief. This too is a wide definition and underlines that hostility can be targeted at faith communities new or old, be sectarian in nature, be directed at converts and also those of no faith.

A suspect's perceptions as to a victim's race or religion can be misguided but any evidence of hostility will be taken into account and, if appropriate, presented at court.

Careful consideration will be required in cases involving the targeting of Muslims, Sikhs or Jews as to whether the offence should be more appropriately charged as involving racial or religious hostility (or both).

Question 3: Does the section on "Communities affected by hate crime" clearly set out the CPS understanding of the individuals and communities affected?

Offending Behaviour

Hostility and hatred can take many forms, ranging from verbal abuse to physical and sexual assault and can include threats, criminal damage, harassment, stalking and anti-social behaviour.

Hostility can be directed towards individuals, groups or property and might be based on misconceptions about the individual's characteristics. Offenders can also target this hostility at a victim's friends or associates or even members of the public.

We recognise that victims of hate crime can be repeatedly targeted. We will encourage the police to investigate any previous incidents or allegations. Wherever appropriate, we will bring charges that reflect the overall picture of offending or if possible make a bad character application to the court to present evidence of previous conduct towards the victim or others.

We accept that many suspects act in an opportunistic way. Hate crime is not always calculated or methodical, although such offences certainly exist. Derogatory language and disrespect for cultural or religious symbols or dress can be hurtful and unsettling but often incidental. Despite what may be perceived as the low-level nature of such offending, the impact will often be significant and victims need recognition of the harm caused.

We recognise that people can be targeted for a combination of reasons, including disability, sexual orientation or transgender identity in addition to their race or religion. Prosecutors will apply to courts for appropriate sentence uplifts based upon all the relevant aggravating features.

Internet and social media

The internet, and social media in particular, have provided new platforms for offending behaviour and our new guidance on the prosecution of social media cases provides more detail.

In approaching online hate crime, we will:

• Recognise that modern communications technology provides opportunities for hate crime.
• Understand internet and social media platforms.
• Be familiar with the relevant law and referral systems.
• Be alert to the need to identify originators as well as amplifiers or disseminators.
• Prosecute complaints of hate crime on line with the same robust and proactive approach used with offline offending.
• Consider the potential impact on a targeted individual or community.
• Treat complaints as seriously as offline complaints and encourage all to be reported to the police.
• As with all hate crime offences, the police will be required to seek a charging decision from us.

Spikes in offending

We recognise that national and international events can serve to exacerbate underlying feelings and attitudes that can often drive hostility. The nature of offending and the language used in incidents can draw upon these events and our prosecutors are aware of the need to be aware of these influences.

Question 4: Does the section on "Offending Behaviour" clearly set out the CPS understanding of offending behaviour?

Working with stakeholders

We work locally and nationally, with the police and other partners in the criminal justice system, as well as with individuals and community groups with experience and expertise in relation to hate crime. This ensures that we are able to properly understand the nature of racially and religiously aggravated offending and can improve our response to it.

Criminal investigation

We will adopt a proactive approach and, where appropriate, will seek further information from the police to assist in the identification of evidence of hostility in support of a sentence uplift application.

In some cases, we may advise the police to pursue other possible lines of enquiry. This may include looking at previously reported incidents involving the same victim, or the same suspect. It may also involve seeking information or evidence from other agencies, for example specialist support groups and relevant community groups.

Hostility on the grounds of race or religion is not the same thing. However, it is important to recognise that the perceptions of the perpetrator may be wrong and that the offending behaviour may contain evidence of both racially and religiously aggravated hostility. What remains essential is identifying the evidence of hostility in support of ss. 28-32 CDA 1998 or s.145 CJA 2003 sentence uplift.

Charging decisions

WWhen making charging decisions relating to racially or religiously aggravated crime, as in all cases, prosecutors must apply the Code for Crown Prosecutors (the Code).

Bail

Following a decision to charge, a victim may fear that there will be repeat offending.

If there is a risk of danger or threats or repeat offences, we will seek to protect victims and witnesses by seeking to remand the defendant in custody where appropriate or by asking the court to impose conditions on bail where possible (for example, not to approach any named person or to keep away from a certain area).

Prosecution and sentencing

In all prosecutions involving racially or religiously aggravated hostility, we will build cases that present evidence of these aggravating factors. We will remind the court of its duty to increase the sentence where the offence is aggravated by hostility on the basis of race or religion.

Prosecutors will draw the court's attention to any relevant parts of a Victim Personal Statement and evidence of the impact of the offending on the community, including any relevant Community Impact Statements. Victims are entitled to say whether they would like to read it aloud or would like someone else to read it aloud or played back (if recorded) for them.

We have a responsibility to assist the court in sentencing. Prosecutors will apply for appropriate ancillary orders, including restraining orders and for compensation for loss, injury or damage. We will always have regard to the victim's needs, including the question of their future protection.

Withdrawal

Sometimes, a victim will ask the police not to proceed any further with the case, or will ask to withdraw the complaint. This does not necessarily mean that the case will automatically be stopped. Applying the Code for Crown Prosecutors, we will prosecute all cases where there is sufficient evidence and there are no factors that prevent us from doing so.

Victim's Right to Review

If a victim requests a review of our decision not to bring proceedings, or to end all proceedings, we will look again at the decision to establish if it was correct. For more detail see our Victim's Right to Review Policy.

Support

We recognise that those who face hostility may often lack the confidence to report it. This can stem from previous experience or the experience of family and friends. It can also arise from not knowing what to expect when supporting a complaint from initial report, through the investigation and finally to prosecution.

It is therefore important to note that 74% of racially and religiously aggravated prosecutions in 2015/16 resulted in a guilty plea from defendants, reducing the need for victims and witnesses to give evidence in court.

Victims of hate crime are also entitled to enhanced support services. Reporting restrictions can be applied for and special measure applications can be made, so that victims can give evidence from behind screens in court or from a separate courtroom via a video link.

Equality duty

We are a public authority for the purposes of equality legislation. This policy and its related legal guidance form a key part of our efforts to meet our obligations under the General Public Sector Equality Duty to eliminate the harassment of people on the basis of race, religion or belief and to promote equality and good relations.

Ensuring that this policy is implemented

We are committed to implementing this policy and will monitor our performance within our Hate Crime Assurance Scheme, through the oversight of our hate crime governance structures and with community engagement via our Community Accountability Forum.

Our Hate Crime Annual Report provides transparent accountability in respect of our performance.

Question 5: Do you have any further comments on the CPS Policy on Prosecuting Racially and Religiously Aggravated Offences?