The Law Commission’s failure to ensure disability hate crime laws are changed 4 June 2014

The Law Commission’s report on hate crime and the case for extending the existing offences has come up with a mixed bag of recommendations. We know the Law Commission agreed that improvements needed to be done to the existing legislation. However it has been a bit of a let down as there has been some backtracking. One of the reasons for this is that disability hate crime’s considered “an extreme and rare form of conduct.” (DNS)

One of the major objectors to the improving of hate crime legislation for disabled people came from The General Council of the Bar of England and Wales whose decision can be seen here:

The Bar Council said it could not see any reason for a “new offence of stirring up hatred on grounds of disability” and added that any “economy is a virtue of law reform.” ( BC2013 ). Clearly a disappointment from one of the UK’s leading authorities on law. 

In its introduction to its paper, the Bar Council concluded members of the groups targeted by hate indeed deserved the full protection of the law, however it added:

1) “No new criminal offence should be created unless there is clear evidence of a pressing need for it. We do not think the case has been made for it.
 

2) The existing range of offences suffices to identify such crimes.

3) Further protection can be provided by enhancing the Courts’ sentencing powers and by improving the recording of ‘hate crime’ offences.” ( BC2013 )

Enhanced sentencing:

The Law Commission did agree that on the one hand extended sentencing is agreed as something that needs to be done:

The Law Commission agreed that there should be some improvement to the enhanced sentencing aspect of hate crime. It did agree that this element was under-used (as we have so often seen in 2013 and 2014):

“The enhanced sentencing system is a potentially powerful weapon in the fight against hate crime. Its communicative power lies in the requirement that the judge declares in open court that the offender’s sentence has been increased because the hate element has made the offence more serious. But it is being under-used and no adequate record is made of cases where it has been applied.”

(1) “New guidance from the Sentencing Council on the sentencing approach in hate crime cases; and

(2) Every time enhanced sentencing is applied, this should be recorded on the offender’s criminal record in the Police National Computer (PNC) so that the record will show the offence was aggravated by hostility, just as it would show a conviction for an aggravated offence.”

“These reforms should be introduced whether or not aggravated offences are extended.” ( Law Commission website )

This means that sentences will be more severe when the hate crime element is taken into consideration. It is a move that has been applauded by many.

On the other hand, the proposal for a new aggravated offence for disability has been dropped. The Law Commission does not recommend it, much to the dismay of many.It had been hoped that this would be accepted thus making the hate crime legislation much more consistent right across all the five characteristics (disability, transgender identity, race, religion, sexual orientation.)

A new aggravated offence for disability:

The Law Commission says that a major compenent of disability hate crime is “the wrongdoing which hate crime offences seek to capture is the denial of equal respect & dignity to people who are seen as ‘other.'” LC2014

“Given the different context from which they are drawn, we consider that adopting the definition of disability in the CRPD would cause unacceptable uncertainty and inconsistency in the prosecution of disability hate crime.” LC2014 

The stirring up offences:

“Although we consider there would be a case in principle for creating new offences of s
tirring up hatred on grounds of disability or transgender identity, we have not been persuaded of the practical need to do so. The consultation produced no clear evidence of conduct or material intended or likely to stir up hatred on grounds of transgender identity or disability.” 
( Law Commission website ) 

“New offences of stirring up hatred on the grounds of disability and transgender identity would rarely, if ever, be prosecuted, and their communicative or deterrent would therefore be negligible. Criminalisation might also inhibit discussion of disability and transgender issues and of social attitudes relating to them.” ( Law Commission website )
 
“For these reasons we do not recommend extending these offences.”
 ( Law Commission website )

The EHRC suggested that the scope of the Law Commission’s consultation was not thrown open wide enough, for there was no opportunity given to “examine the rationale for the existing offences.” The EHRC also added that the legislation should be extended to include  characteristics that were not currently covered, and also a need for all five types of offence to be adequately covered, rather than the uneven legislation that is clearly apparent at present.

There is considerable evidence that hate crime IS extreme and most definitely NOT rare. Therefore the UK’s leading lights on law have delivered a somewhat muted and rather disappointing conclusion which will no doubt leave many of us still quite vulnerable to the extreme excesses of an ableist society.

Bibliography:
BC2013 – Bar Council response to the Hate Crime: The Case for Extending the Existing Offences consultation paper September 2013 – Obtainable from the Bar Council

DNS – Disability News Service 

EHRC – Equality and Human Rights Commission – Hate Crime Consultation November 2013

LC2014 – Law Commission Consultation Paper No 213 Hate Crime – the case for extending the offences May 2014 – Obtainable from the Law Commission

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