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WORKING GROUP ON HATE CRIME REPORT
3. BACKGROUND
3.1 There are differing views on identifying and distinguishing hate crimes from other crimes. Critics of hate crime legislation argue that it amounts to the punishment of individuals' opinion and it creates a "slippery slope" whereby particular groups are singled out for special treatment under the law. Some people object to the fact that hate crime legislation punishes the motivation as well as the crime, meaning that a person convicted of a hate crime can receive a more severe punishment than someone who has been convicted of the same offence, but without the additional motivation. Others simply dismiss it as an extreme form of political correctness.
3.2 While acknowledging and considering these arguments, we do not agree with them. We address them further in Chapter 5. We identified 3 strong reasons why the introduction of hate crime legislation should be considered:
- Research consistently shows that some social groups are proportionately more often victims of harassment and crime and that much of this is motivated by prejudice against those groups. 5
- Hate crimes can cause more psychological damage to a victim than crimes that are not motivated by hatred, because the victim's core identity is being attacked. This personalises the crime and can cause the victim a greater amount of distress. 6
"There is nothing worse than being slagged and attacked for being what you are."
(Anonymous; Response number 026)
- Hate crime is socially divisive. Such crimes need to be particularly condemned in order to avoid a situation in which the relevant group feels victimised as a group, with members in constant fear of attack. Prejudice against groups can lead to a number of consequences, ranging from fear of crime and inability to participate in normal social activities to paranoia and vigilantism. 7
3.3 Hate crime legislation already exists for racial hatred and religious hatred. The Public Order Act 1986 made it a criminal offence throughout Britain to incite racial hatred. In Scotland, the offence of racially aggravated harassment was introduced in the Crime and Disorder Act 1998. The same Act includes a provision for the courts to increase the sentence when any criminal offence is aggravated by racial prejudice. The Criminal Justice (Scotland) Act 2003 includes a similar provision for offences aggravated by religious prejudice.
3.4 Hate crime can range from name-calling, to day-to-day harassment, violence and in extreme cases, murder. Victims of hate crime often have a visible or other distinguishing characteristic which acts as a "marker" of their difference and may single them out for abuse, such as "looking gay" or being seen coming out of a gay venue, having a dedicated accessible parking bay, or using a wheelchair. Hate crime represents an antipathy towards particular social groups whereby perpetrators of hate crime believe that they can, and should be able to, get away with their crimes. They may believe the victim deserves to be attacked because they are different, that they are "fair game", and in some cases, the perpetrator feels he or she is "helping" society. They feel superior by making their victim feel inferior. 8 No matter what the offence, even relatively minor incidents have a detrimental impact on society, creating divisions and tension.
Vulnerability
3.5 It is important to note the distinction between vulnerability on the one hand and malice and ill-will towards a social group on the other. We were very aware that there can be a grey area where these overlap and that it should be an essential element of a hate crime to prove that a crime has been motivated by malice and ill-will towards an individual because of a presumed membership of a social group rather than because of their vulnerability. For example, if someone is attacked, but because of their disability is unable to run away, the crime occurred because the individual was vulnerable and this would not constitute a hate crime. The individual has been targeted because of their vulnerability rather than because of their membership of a social group.
Domestic and International Context
3.6 Other parts of the UK are currently adopting measures to deal with hate crime. The UK Government introduced an aggravation in the Criminal Justice Act 2003, which increases the sentence for crimes motivated by hatred because of a person's actual or presumed disability or sexual orientation. This legislation covers England and Wales only.
3.7 The Secretary of State for Northern Ireland announced proposals for legislation on hate crime motivated by religious hatred, racism or sexual orientation in October 2003. Following a consultation which concluded in April 2004, Northern Ireland laid legislation against hate crime in July 2004. It is expected to come into effect in September 2004. The legislation will incorporate an incitement to hatred offence to cover disability and sexual orientation and an aggravation based on race, religion, disability and sexual orientation.
3.8 Internationally, the group looked at the situation in the European Union and the United States of America. European Community law covers civil discrimination but not any criminal justice issues. The European Union introduced Article 13 of the Treaty of Amsterdam to tackle the issue of discrimination against individuals on the grounds of specific characteristics (race and ethnic origin, religion and belief, gender, sexual orientation, age and disability).
3.9 The United States of America have fairly extensive "hate crime" laws. A publication produced by the US Department of Justice called "A Policymaker's Guide to Hate Crimes" (see Bibliography at Annex A) provides a chart detailing which states in America have hate crime provisions and covering which groups. We also examined in more detail Californian gender hate crime legislation.
Other initiatives and relevant legislation
3.10 In addition to looking at possible legislation and what support could be given to victims of hate crime, we were keen to examine the existing initiatives and relevant legislation which impact on these victims. There are many existing valuable initiatives but these do not generally target hate crime as such and are mainly generic as shown in the following paragraphs.
Victim Support Scotland
3.11 Victim Support Scotland is funded by the Executive to deliver services to victims of crime and to witnesses. The police pass on to Victim Support Scotland details of all victims who wish to access support. Local victim support services then get in touch with them to offer support. Victim Support Scotland also delivers the Witness Service in the Sheriff Courts and High Court. This provides information and support to all witnesses before, during and after the trial.
Victim Information and Advice (VIA)
3.12 VIA is a service for vulnerable victims that is currently available in every Procurator Fiscal area and will be in every Procurator Fiscal district by the end of 2004. It is a division of the COPFS that provides a "way through" the criminal justice system for victims and bereaved next of kin by providing information about the progress of cases and putting them in touch with other agencies that offer support if they so wish. VIA support is automatically offered to victims from ethnic minority groups and victims of homophobic crimes. Other victims, including disabled victims,
are offered support if they are considered to be vulnerable.
The Scottish Strategy for Victims
3.13 The Scottish Strategy for Victims was published by the Scottish Executive in 2001. It sets a challenging new agenda which brings together all interests within the criminal justice system to deliver policies and services to meet the needs of victims and witnesses. Commitments included piloting victim statements; the provision of funding for a court-based volunteer Witness Service: establishing a new service working alongside the Procurator Fiscal Service to provide advice and information to victims and witnesses (Victim Information and Advice - VIA - see above); looking at ways of expanding the statutory definition of "vulnerable person"; and examining how those who need it could be given support or protection. Many of these have already been implemented but the Strategy is a living document and is currently being reviewed with a view to establishing a work programme for the next 4-5 years.
Criminal Justice (Scotland) Act 2003
3.14 The Criminal Justice (Scotland) Act 2003 introduced new rights for victims. This included a right for victims of certain types of crime to be able to make a written statement to the court about the impact of the crime on them. Victim statement schemes are being piloted in Edinburgh, Kilmarnock and Ayr and will run until November 2005. In the pilot areas, people who have been victims of a racist incident will have the right to make a victim statement, as well as those who have been victims of crimes of violence, crimes of indecency and domestic housebreaking.
3.15 The 2003 Act also introduced provisions to extend the Victim Notification Scheme, under which victims of crime have the right to be informed when their assailant is released from a prison sentence of 4 years or more. The extended scheme will apply to the victims of racist offences
and is likely also to include the victims of offences aggravated by religious prejudice.
Vulnerable Witnesses (Scotland) Act 2004
3.16 Much of the Act relates to increased protection for children. However, the Act also includes discretionary entitlements to special measures for people with a mental disorder which affects their ability to give evidence, or for those where fear or distress could prevent them from giving their best evidence to the court. These special measures include screens, the witness having a supporter, a live TV link being used for the witness to give evidence and a prior statement given by a vulnerable witness, which can be used as evidence in chief. In certain circumstances, the accused can be prohibited from personally conducting their own defence on the application of the prosecutor if the court so decides. These provisions may enable vulnerable victims of "hate crimes" to benefit from the use of special measures when they give evidence.
Antisocial Behaviour etc. (Scotland) Act 2004
3.17 The Antisocial Behaviour etc. (Scotland) Act 2004 received Royal Assent in July 2004 and commencement is planned for many of the measures in the new legislation for October 2004. The legislation forms part of a wider antisocial behaviour strategy that is intended to provide additional protection and support to those whose quality of life is undermined by threatening and intimidating behaviour and behaviour that can ruin the physical, economic and social fabric of communities. The Executive recognises that groups who are subject to hate crime may also be more likely to experience the effects of antisocial behaviour.
3.18 The antisocial behaviour legislation will complement work on hate crime as it provides additional tools to protect victims of antisocial conduct, which may involve incidents not sufficiently clear-cut to be prosecuted on a criminal basis.
Summary
3.19 We concluded that while these initiatives were helpful in so far as they provide general help for victims of hate crime, other measures are necessary to target hate crime directly.
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