A missed opportunity: Why the Law Commission got it wrong on hate crime

Jon Garland, Department of Sociology, University of Surrey

Jon GaJG picrland and Neil Chakraborti are co-editors of Responding to hate crime: The case for connecting policy and research, published by Policy Press last month.

 

Recently the Law Commission published the results of its year-long investigation into the efficacy and scope of hate crime laws. The consultation, a reference from the Ministry of Justice, had the specific remit of examining the ‘aggravated’ offences and incitement to hatred legislation in order to see if these should be extended to include groups that were not previously protected.

That the Law Commission was asked to undertake this review at all was a reflection of the increased social significance of hate crime and also (and relatedly, of course) the heightened importance of hate crime legislation. Supporters of this legislation argue that it has a specific, symbolic importance in that it reflects society’s condemnation of the victimisation of marginalised and disadvantaged groups. However, one of the issues examined in this process was the inequality that exists in the provision for different victim groups within the mish-mash of hate crime legislation. The criminal justice system currently recognises just a handful of different identity communities as hate crime victim groups – the so-called ‘five strands’ of race, religion/faith, sexual orientation, disability and gender identity – about which the police are required to collect hate crime statistics. Surprisingly, though, some of these ‘five strands’ receive more protection from the law than others. For example, the aggravated offences provision within the Crime and Disorder Act 1998 currently covers race and faith groups, but not those relating to disability, sexual orientation or gender identity. Similarly, in the case of the incitement to hatred legislation, race, faith and sexual orientation groups are included, but not disability or gender identity.

So how has this rather odd situation come about? Well, the explanation is, in some ways, quite simple: there is no single all-encompassing ‘Hate Crime Act’ that covers different types of offences and all identity groups, but instead there exists a number of different pieces of legislation that have been drawn up over time which have, gradually, included one group after another in a rather piecemeal fashion. This has resulted in the disparities of provision that the Law Commission was asked to investigate.

Under a degree of expectation, the Law Commission therefore published the findings from its extensive investigations at the end of May. The Commission concluded, perhaps rather disappointingly, that a further, Government-sponsored review into a wider set of questions surrounding the aggravated provisions was necessary. It also, rather frustratingly for some disability campaigning groups such as the Disability Hate Crime Network, declined to recommend that the incitement legislation be broadened to include the strands of gender identity and disability. The Commission’s reasoning for this was that it had not been persuaded of the ‘practical need to do so’, that prosecutions might in any case be rare and that new incitement legislation might ‘inhibit discussion of disability and transgender issues’.

This verdict means that disabled and transgender communities still find themselves ‘out in the cold’ regarding the incitement laws. It also means that some groups appear to be accorded a more ‘privileged’ position than others within the five strands, which is an unfortunate outcome of the Commission’s work. Although the justification provided by the Commission for declining to make this recommendation  has some logic, it does seem a shame that it failed take the opportunity, in the words of the Disability Hate Crime Network, to extend the law’s coverage to ‘capture a unique, specific and grave type of wrong’.

 

 

 

 

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