Peter Hedley: Was this really a disability hate crime?

Disability News Service (DNS) reported that the Hedley case was a failure to implement S146 of the Criminal Justice Act 2003 – in other words determine it a disability hate crime and thus give the sentence passed to murderer Claire Humbler an extra uplift. She has already been sentenced to life – meaning a maximum of 20 years. The following is an excerpt from DNS:

Justice system allows another murderer to escape a hate crime sentence 

By John Pring May 29, 2015The criminal justice system’s continuing failings on disability hate crime have been highlighted by the sentencing of a brutal murderer, just 24 hours after the publication of a highly-critical new report by three watchdogs.

Clare Humble, 50, from Bedlington, near Newcastle, was convicted of murdering her disabled partner Peter Hedley (pictured) in a violent and sustained attack….

The court had heard how she repeatedly punched and kicked his face, hit him repeatedly with a heavy round table-top, stabbed him with broken crockery, and possibly even tried to gouge his eye out. She then took his body to woodland and set it on fire….

…..the murder was not treated as a disability hate crime. If it had been, Humble would have had to serve a minimum of at least 30 years in prison.

….the judge merely took account of Hedley’s “vulnerability” in sentencing.

The court heard that Humble had exploited Hedley and used his benefits

Anne Novis, a coordinator of the Disability Hate Crime Network (DHCN), said: “It saddens me that yet again ‘vulnerability’ is used as a reason why someone is attacked, abused, taken advantage of and murdered when it’s so clear this man was killed due to being a disabled person.

“Hostility directed towards a disabled person because they are ‘vulnerable’ is clearly cited as hate crime in the CPS guidance on disability hate crime and perceived as such by those of us who have worked on this issue for decades.

“When will justice agencies get it right so disabled people get the justice they should get? How many more decades will it take?”

Full report at Disability News Service
 
 
This is a difficult case. Hedley became disabled during the course of the relationship as a result of the injuries sustained by Humble. Hedley was a epileptic however there is no record of whether this began during the relationship or even before the relationship began.
 
If we have to apply S146 in terms of Hedley’s poor health then it is clear we need to apply S146 in many other cases that have never been seen as a disability hate crime and are clearly borderline cases where the disability element is difficult to determine. 
 
It just exposes the weaknesses in the whole approach to the subject from both sides, including the judicial bodies (CPS, HMIC, etc) and the arguments that are even used by DHCN.
 
It is quite possible that the judicial services are hesitant at applying S146 (barring the many clear and glaring errors they have made – eg Craig Kinsella, Scott Blackwood etc) for fear of creating an all out that practically determines every case a disability hate crime.
 
Hedley never told anyone he was a victim of disability hate crime. No reports were made to Northumbria Police. Not at any one time did Hedley ever say “I am a victim of disability hate crime.” (This is a quite crucial and essential element in the CJA 2003 – eg the perception of the hate crime).

The concept of vulnerability is also a moot point. It is argued that cases are focused on a disabled person’s vulnerability and not the disability itself and therefore this is why S146 is not applied. Yet the CPS guidance clearly sets out reasons for not using the vulnerability card – it seems quite amazing that the courts are using it!

Vulnerability is debatable, clearly disabled people are vulnerable, for example I’m vulnerable to those who can exploit certain things within the ableist sphere. In other words I’m vulnerable when amongst those who dont have the disabilities I have.

Hence the ‘can’t’ element means vulnerability is essentially a part of disability hate crime whether people like it or not. Let’s think on this, isn’t this what mate crime is about? Exploiting someone’s vulnerability? Cause célèbre cases such as Gemma Hayter, Steven Hoskins etc, it’s the same old playing of the vulnerability card to such an extent that the victim’s totally entwined within the clutches of evil perpetrators and so powerless to escape.

Clearly Peter Hedley was vulnerable – subtly groomed to accept his lot was to be bullied, harassed and an acceptance that there is no way out. Its much like the many domestic violence victims who despite bruises, cuts, swelling, etc will assert they had fallen down the stairs or tripped upon a kerb. The classic signs of being vulnerable in the face of a powerful adversity.

Comparing Hedley with other disability hate crimes of the past, once again there’s little to indicate that an insidious, certainly dangerous situation, was being subtly brewed with the all too common fatal consequences.

The Hedley case wont be a cause célèbre case – like Bijan Ebrahimi or others, yet its the failures of the judicial system to determine whether a disability hate crime has occurred. Not only that its the regular inability to view disability in a proper light, the unequal power relations that arise as a result of the disabled person vs the perpetrator, and thus in this sense the vulnerability itself only works to occlude the equation.
 
 
Disability Hate Crime Network’s Facebook discussion on the merits of denoting the Hedley case a disability hate crime and applying the S146 sentencing: 

Justice system allows another murderer to escape a hate crime sentence

The criminal justice system’s continuing failings on disability hate crime have been highlighted by the sentencing of a brutal murderer, just 24 hours after the…
disabilitynewsservice.com
Anthony Mark Cutter: A question to consider:Would it really have resulted in a harsher sentence if they’d used s146?

Murder carries a mandatory life sentence and vulnerability taken in to account in this instance does a similar job when setting the tariff (the minimum period behind bars, before being released on permanent licence).

Baring in mind this is a domestic violence case involving a disabled person it may actually have been more appropriate to use vulnerability than not. We’d need to look at the entire circumstances of the case before knowing whether s146 would have been the right thing to do.

Remember the relevant bit of the legislation says:

Those circumstances are—

(a)that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

(i)the sexual orientation (or presumed sexual orientation) of the victim, or

(ii)a disability (or presumed disability) of the victim, or

(b)that the offence is motivated (wholly or partly)—

(i)by hostility towards persons who are of a particular sexual orientation, or

(ii)by hostility towards persons who have a disability or a particular disability.

That may have been very difficult to prove in this domestic situation.

Also imagine if he had been sentenced using 146 and then because of the complexity of his relationship/situations had appealed the sentence?

That would have done more damage to DHC cause than not using it has done.

We need to remember that the way THE LAW is currently written creates our own ‘fallacy of the raven’ to the extent that:

All disability hate crimes involve disabled victims, but not all disabled victims are the subject of hate crime.

Ann Novis’ point as quoted about ‘vulnerability’ is well made, and the cited blog post on DHCN.com worth reading.

However, from time to time (because of the way the law is written as much as anything else) we need to embrace (situational) vulnerability as doing an important job for disabled and non-disabled victims alike AND really make sure that:

s146 is used often & well in cases where there is route cause hostility on the basis of disability.

Editorial note:

It’s worth highlighting that disability hate crime isn’t actually listed in the sentencing guidelines for a 30 year starting point as published in the publicly available sentencing guidelines (as published online at present), but it was a proposal of the Conservative-Liberal Democrat government that it should be, and included in changes in the 2012 act.

Katharine Quarmby: From 2012 onwards it is possible to sentence murderers for up to 30 years for disability related murders under the Legal Aid Sentencing and Punishment of Offenders Act – something I and others had been campaigning for for many years, so I find this case very disappointing, and agree with the analysis of John Pring. I have attached an article about LASPO. It is also very sad that Northumbria Police, which dealt with the brutal murder of Brent Martin, a young man with learning difficulties in 2007, which was not treated as a hate crime, has not learnt from that case and others. https://www.gov.uk/…/new-sentences-and-criminal…

Anne Novis: The lack of recognisng what is a disability hate crime from the outset of investigations leads to poor justice, whilst the law re section 146 is not sufficient it should be used. it certainly affects our confidence that any justice service can actually get it right in a consistant process. Whilst we see patches of good practice here and there its not good enough and always seems reliant on one or two individuals rather then the service as a whole. This must change.John Pring: Anthony, I think you’ve got this wrong re sentencing for murder. Might be worth correcting your piece so you don’t mislead people.

Katharine Quarmby: John, I’ve pointed this out in my comment – LASPO amended this of course but not widely known. Such a pity that it wasn’t used this time – just as with Bijan Ebrahimi, another case of justice foregone.

Anthony Mark Cutter: I don’t disagree with the analysis about vulnerability or hate crime in general, but my point is that s146 would never have stuck in this case, and she would have won an appeal against her sentence. I’ve now read three different reports on the case and it reads like a domestic violence case that reads a bit like “mate crime”.

Anthony Mark Cutter: I am wrong above, In that meant that a new sentencing guide hasn’t been published although the statute has changed. I was voice typing the comment and forgot to edit the change, will do so shortly.

Anne Novis: mate crime is hate crime.

Anne Novis: Befriending a disabled person to take advantage of them is a hate crime, as is the resulting abuse, violence and murder we often see in such cases.

Stephen Brookes: I have put this case forward to the CPS for answers. I have written to our chief contact at CPS policy and said :- This case has caused real discussion and dismay throughout our network (and I did raise it with you in my e mail two weeks ago although you appeared not to have received it first hand).
We saw several press items on the story but the one by Disability News Service sums up our clear views here.
The lack of input of disability hostility is an unacceptable matter as far as we are concerned and for the Northumbria police to say there was not evidence of this being motivated by the victims disability put into question the whole matter of the seriousness with which DHC is considered by the Criminal Justice System.
The mans obvious vulnerability should have been the clear indicator of the actions being possible because of the factor of disability.
Did the CPS not request that this be challenged as a DHC?
Can you please come back to us on this, as it seems once again that justice for disabled people is a far from certain fact.

Anthony Mark Cutter: Just to be clear I know a mate crime is a hate crime, I have lectured on it many times, this just doesn’t seem to have been the case at this point as I interpret the facts. This seems to me to be a domestic violence incident involving a disabled person which is not the same thing. The fact that the law is letting down disabled people is not in dispute, but we have to be careful that not we do not undermine our own mission in pushing for DHC to be applied to all cases that involve a disable person. I look forward to the CPS response to Stephen’s enquiry as we would seem to need more details to make a full analysis. One thing that has become very clear in the last 3 hours of reading is that the framework for murder sentencing is different to that laid out s146. So to begin at 30 ya

Anthony Mark Cutter: Just to be clear, I am a supporter of the use of s146 in as many cases as possible including those of “mate crime” as Anne describes. I just don’t think it would have stuck in this case based on the publicly reported evidence. Further extensive reading this morning has shown me that (in fact) s146 wouldn’t apply to Murder sentencing anyway, but rather it is Section 5 of Schedule 21of the Criminal Justice Act as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that now states that the 30 year starting point for a life sentence tariff if an offence is “aggravated by disability”. It is definitely clear that the victim was vulnerable and in a situation of domestic violence, but it is not clear that the crime was motivated by or aggravated by his disability. I am really looking forward to Stephen receiving a response from the CPS as they will have details that we do not, but certainly the Police response seems to suggest that the law (as it currently stands) has been correctly applied. I don’t deny that the law and our criminal justice system are failing disabled people, and we need to explore what changes we need to press for to see that improved. I genuinely believe that the circumstances of this case would have given rise to the opportunity to appeal a “Hate Crime” style uplift and that would hurt the DHCN cause more in the long run. (I’m not saying it is just that this is the case, but simply that it would have been the likely outcome).

Beverley Smith: The point about the real dangers, evidenced here, of the use of ‘vulnerability’ are covered well in this piece and again put across so well by Anne Novis MBE. We must continue to press this point. It is unacceptable.

Stephen Brookes: I totally go with Anne on the point she made here that the big holes in recognisng what is a disability hate crime from the outset of investigations shows up here and leads to poor justice, and agree with her that whilst the law re section 146 is not sufficient it should be used. As she points out, its the consistency in the system which falls apart too frequently and it certainly affects our confidence that any justice service can actually get it right .

Anthony Mark Cutter: I agree with that too Stephen, but there’s a problem with applying s146 to murder due to the difference between sentence and tariff. I think in this case ‘vulnerability’ was actually the best we could have got under Schedule 21.

It’s another area for us to look at urgently.

We need to think about the specific under ways in which a murder could be aggravated by disability.

If she had killed him and then continued to claim his benefits that would ‘aggravated’ the murder element on the basis of his disability and triggered the 30 year start point. As would killing him becaused she hated his depressive behaviours.

The true failings here aren’t de facto in the sentence but in the failures of various agencies to pick up on hate crime and domestic violence over the last 4 years (as reported in various news articles) which could have prevented it.

It seems there’s a lot of work to do to make the law more relevant to reality

John Pring: Anthony Mark Cutter, you say that ‘certainly the Police response seems to suggest that the law (as it currently stands) has been correctly applied’. I would suggest that various police forces have repeatedly, over the last 8 years, made similar statements about cases that were later shown to be disability hate crimes. Just because the police say they did everything right, does not mean that they did so…

Anthony Mark Cutter: It doesn’t mean they don’t either, at this point I am analysing the evidence in front of me and trying to see how sentencing could have been different based on the information in the public domain. At the end of the day that’s all the judge can do and apply the law as it stands.

Like I said there’s work to be done with both the legal framework and the way it’s applied to make said framework fit for purpose and the realities that disabled people face.

The case also highlights failings by various services to deal with evidence of domestic violence against this man over a number of years.

Katharine Quarmby: There were a number of cases that I covered in Scapegoat that I argued then, and still believe, were both domestic violence and hate crimes at the same time. As I wrote then, locations specific to disability hate crime include intimate settings such as care homes and the home itself, with hate crimes perpetrated by ‘loved ones’ and ‘caregivers’. I think it is dangerous to exclude such cases, as they so often are, from hate crime sentencing. I haven’t changed my thinking on this and will continue to campaign for intimate crimes with a hate crime element to be charged, investigated and sentenced as such.

Anthony Mark Cutter: I am with you on that Katherine.

Do you see my point about how s146 doesn’t necessarily apply to murder sentences so vulnerability may be the closest we could get on these facts? (As the law stands).

Reading this case has raised a massive alarm bell for me about the way the law works in this area.

It feels like we (or at least I) have missed a significant lucuna in the way the law functions over the last few years of engaging with Hate Crime.

Katharine Quarmby: We didn’t have LASPO – that’s why we campaigned, with MP’s, to get the sentence for murder with a disability element extended. I remember writing about disability related murders back in 2007 for Disability Now, and in Getting Away with Murder, and the lack of sentencing powers. It isn’t a gap any more. The problem we have now, I think, is with judges not using their sentencing powers appropriately.

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Update 1 June 2015: DHCN removed topic for unknown reason – screencap of page:


Update 2 June 2015: DHCN page restored – screencap of page:



Update 5th June 2015 – Thoughts from Rose Simkins of Stop Hate UK:

Has justice been served ? – The case for increased use of Section 146, Criminal Justice Act 2003 by Rose Simkins, Chief Executive, Stop Hate UK

Posted on 
Clare Humble, 50, from Bedlington, was convicted in 2014 of murdering her disabled partner Peter Hedley in a violent and sustained attack. She was jailed for life last week at Newcastle Crown Court and was told that she will serve a minimum of 20 years in prison. Many views have been expressed about this case by various organisations saying that the murder was not treated as a Disability Hate Crime and if it had been, Humble may have had to serve a minimum of at least 30 years in prison.
It may be that this legal case has highlighted a misapplication of the principles of S.146[1] which may have resulted in the sentence being unduly lenient – but the truth is we don’t know that this is the case.
Murder is the most serious crime that exists in law but what is lacking in our criminal justice system about Hate Crime is transparency. We believe it is in the public interest that people know on what basis someone has been sentenced. Generally, our system provides for open justice but it is not possible to sit in on every court hearing.
Stop Hate UK therefore call on the Crown Prosecution Service and the Judiciary to routinely make sentencing remarks publicly available in cases of Hate Crime or cases that involve a victim with a protected characteristic.
We believe this is the only way in which members of the public can properly scrutinise whether cases have been properly treated as such.
In our response in 2013 to the Law Commission[2] consultation on extending the existing provisions for Hate Crime offences we called for these changes and I refer the reader to this report particularly paragraph 40, 50 and 73 which are paraphrased here

  • Prosecutors should state, from the outset, that they intend to present a case as a S.146 case – or at the earliest opportunity, as the case proceeds.
  • We believe this reform should happen regardless of whether a new aggravated offence on the basis of disability is introduced.

We accept that not every crime against a disabled person is based on hostility because of that aspect of their identity. However, we are concerned that too many cases, where the motivating factor is hate based on the victim’s disability, are being considered based on the victim’s apparent vulnerability rather than their disability.
[1] Section 146 (S.146) Criminal Justice Act 2003. Where the offender has demonstrated hostility because of the victim’s disability or presumed disability or has carried out an act motivated by hostility towards a person’s disability or presumed disability, the court must treat these circumstances as an aggravating factor and must state in open court that the offence was committed in such circumstances.
[2] The link is to our full response is here Stop Hate UK’s Response to the Law Commission

Stop Hate UK

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