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Guidance on Prosecuting Cases of Disability Hate Crime

Introduction

Discrimination and prejudice lie at the heart of disability hate crime in the same way as they do in crime motivated by hostility on the grounds of race, religion, sexual orientation and transgender identity. The CPS is committed to addressing all forms of discrimination and prejudice-based offending and continues to work to improve the quality of prosecutions and the accuracy of recording.

Not every crime committed against a disabled person is a disability hate crime for the purposes of section 146 of the Criminal Justice Act 2003. Yet we know that many of these offences are not reported and many are not recognised as diability hate crime.

Despite the emergence of some useful research in this area the extent and impact of disability hate crime is not necessarily as fully understood as it might be. Equally it is not always recognised by the victims of such behaviour or by those with responsibility for dealing with it. Many disabled people do not appreciate that constant name calling, mimicking and bullying which often escalates to more serious forms of harassment and violence are criminal activities.

The CPS wants disabled victims and witnesses and their families and communities, as well as the general public, to be confident that the CPS understands the serious nature of this type of crime and know what they can expect from the Service.

Section 146 of the Criminal Justice Act 2003 places a duty on courts to increase the sentence for any offence where a defendant demonstrated hostility based upon the victim's actual or presumed disability, or where the offence is shown to be motivated by hostility towards persons who have a disability or particular disability. This reflects the significant impact hate crime has on the victim and on the community. Prosecutors have a duty to ensure that evidence of such hostility is identified and brought to the attention of the sentencing court, and the court invited to apply the provisions of s.146 so that the offence is properly dealt with as a hate crime.

This guidance document is primarily focused on how the CPS deals with disability hate crime as defined by s.146 of the Criminal Justice Act 2003. Prosecutors are encouraged to be pro-active in identifying cases in which s.146 may apply, seeking the evidence required and making applications for a sentencing uplift, where appropriate. However, it is recognised that evidence will in many cases not be available to support a s.146 application, even though disability may have been a factor in the case. This guidance also addresses these circumstances, where the prosecutor should ensure that the sentencing judge has all relevant information to pass a sentence that reflects the seriousness of the offence, in terms of the culpability of the offender and /or the harm caused to the victim.

The CPS recognises that some disabled persons may have access and support needs to enable them to give evidence. The guidance explains how the needs of the disabled victim and any disabled witnesses will be assessed at the earliest opportunity in order to see what measures, including special measures, may be available and suitable to support them in court.

It should be noted that there is no offence of stirring up hatred based on disability, which contrasts with the position in relation to offences of stirring up hatred on grounds of race, religion or sexual orientation as those offences impact on the right to free speech. In addition, whilst there are aggravated offences in respect of hostility shown on grounds of race or religion which carry longer maximum sentences than their basic offence equivalents, no such aggravated offences apply to disability.

The NPCC/CPS shared definition of monitored disability hate crime is set out in Annex B.

In this guidance document, crimes which fall within the ambit of s.146 or the NPCC/CPS definition are referred to as disability hate crimes.

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"Vulnerable Victim"

It is recognised that many people with disabilities do not consider themselves to be "vulnerable" and may be offended by the use of that word to describe their position.

Where this guidance refers to a "vulnerable" victim or person, it does so in the context of the person being vulnerable to a particular criminal offence at a particular time, or in the context of a relevant Sentencing Guideline. The guidance does not suggest that a disabled person is vulnerable per se. For example, just because someone is a wheelchair user does not make them vulnerable or an easy target to defraud. It may however make them an easier option for someone looking to steal a handbag in the street. There will be cases where, notwithstanding the fact the victims do not consider themselves to be vulnerable, the evidence points to the offender having treated them as such.

Identification and flagging of "Disability Hate Crimes"

All cases referred to the CPS by the police which have been identified as a disability related incident, should be flagged on Compass CMS.

We also flag a case as a "disability hate crime" if the victim (or any other person) perceives the incident was motivated by hostility or prejudice towards a person because of their disability or presumed disability. This is a subjective question. Flagging a case puts us on notice that someone at some stage has perceived the incident that gave rise to the case had such an element to it. For a conviction to receive enhanced sentencing in court the police need to provide sufficient evidence to prove the hostility element, however this is not required for recording purposes. Therefore, whilst not all flagged cases will result in an application for an uplift of sentence under s.146 of the Criminal Justice Act 2003, or of that uplift being granted, they should still be flagged on CMS.

Prosecutors should work proactively with the police to identify any evidence that will assist in these types of cases. The decision to flag can be taken at almost any stage of the process; if not already flagged by the investigating officer, it might be flagged by the reviewing prosecutor, at review stage even up to and including the trial. It is best practice to flag as soon as possible in order to ensure the correct support is made available to the victim and facilitate a proactive investigation of the evidence.

Some cases will need more than one flag, for example, cases that also involve domestic violence, rape, or racist, religious or homophobic elements. Accurate flagging of cases is important: it means that we can monitor how we handle these cases so that we can report back to communities on our performance in tackling these types of hate crime.

It is important that the relevant fields on Compass CMS are completed where flagged hate crimes qualify for an enhanced sentence under s.146 of the Criminal Justice Act 2003. This enables monitoring of whether or not the prosecutor drew the court's attention to the sentencing provisions, and whether or not the court applied an enhanced sentence. See CMS guidance on VAW and hate crime data fields for further details.

It is also imperative that police notify prosecutors whether the victim(s) or a key witness is disabled, as this informs the way that the prosecutor will handle the case.

It is not CPS policy to remove a flag in the absence of sufficient evidence to support a sentence uplift. This in part reflects our commitment to treat hate crime seriously and to support the victim's perception and also to encourage community confidence in reporting all such offending. However, if a flag has been attached to a file due to an administrative error, it will be removed, as this will support increased data accuracy.

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Application of the Code for Crown Prosecutors

Not all incidents that the victim or some other person has perceived to be a disability hate crime will actually be a disability hate crime in law. For s.146 to apply the prosecution must first have proved that the offender has committed a criminal offence and then have proved that that offence was aggravated by hostility based on the victim's disability.

Each individual case must be considered on its own facts and on its own merits when applying the Full Code Test as contained in the Code for Crown Prosecutors. The Full Code Test has two stages - the evidential stage, and the public interest stage.

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Evidential and Public Interest considerations

The Director's Guidance on Charging requires offences classified as Hate Crime under CPS Policies to be referred to a Prosecutor for early consultation and charging decision, whether admitted by the suspect or not. See the Director's Guidance on Charging - 5th Edition: May 2013 (Revised arrangements).

Since s.146 does not create an offence, it is not necessary to consider the aggravating factor when assessing the evidential stage of the Full Code Test of the Code. However, if the case passes the evidential stage and it is a case of disability hate crime, it is more likely that a prosecution is required in the public interest. The Code for Crown Prosecutors at paragraph 4.12(c) refers to the circumstances of and the harm caused to the victim. Prosecutors must have regard to whether:

"... the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or 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 a prosecution is required.

Paragraph 4.12(c) also states that the greater the vulnerability of the victim, the more likely it is that a prosecution is required.

Paragraph 4.12(b) of the Code directs prosecutors to consider whether the offending was or is likely to be continued, repeated or escalated and paragraph 4.12(e) deals with an assessment of the impact of the offending on the community.

It is important to act at an early stage:

  • to stop further incidents against that victim;
  • to avert incidents against other potential victims;
  • to prevent an escalation in severity and frequency;
  • to mark the offender's propensity for future reference;
  • to raise public and judicial awareness of the existence and scale of disability hate crime;
  • to improve the confidence of the disabled community;
  • to mark the behaviour for what it is.

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Charging

The charges should always reflect the seriousness and extent of the offending supported by the evidence, any element of pre-meditation or persistence in the defendant's behaviour, the provable intent of the defendant and the severity of any injury suffered by the victim. Reference should always be made to any relevant Charging Standards. The charges should help the prosecutor to present the case in a clear and simple way and give the court adequate powers to sentence and impose appropriate post-conviction orders.

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Case Building

Prosecutors should adopt a proactive approach to seeking further information from the police to help them decide if a case can properly be prosecuted as a disability hate crime. This may be especially important if the situation represents repeat victimisation. This might include looking at previous reported incidents involving the same victim, or the same suspect; or seeking information or evidence from other agencies, for example, Social Services, the National Health Service, specialist support groups or community groups working with disabled people.

Research into disability hate crime reported in "Living in Fear: Better Outcomes for people with learning disabilities and autism" identified that 17% of people told nobody of incidents, 38% of people reported them to the police, whilst 48% told family and 50% told a friend.

Therefore, in relevant cases, appropriate enquiries should be made of family, carers, social services, housing authorities, school, neighbours, police etc. to check whether they were aware of any other relevant incidents involving this or other disabled victims - even if those other incidents had not been reported to the police. Such enquiries will give the bigger picture, putting the current offence in context.

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Common Factors in Disability Hate Crime

An overview of disability hate crimes reveals a common trend of extra factors, in addition to the offence itself, such as:

  • there have often been previous incidents. For example, financial or sexual exploitation; making the victim commit minor criminal offences such as shoplifting; using or selling the victim's medication; taking over the victim's accommodation to commit further offences such as taking/selling drugs, handling stolen goods, encouraging under-age drinking and sexual behaviour;
  • opportunistic criminal offending becomes systematic and there is regular targeting, either of the individual victim or of their family/friends, or of other disabled people;
  • perpetrators are often "friends", carers, acquaintances, or neighbours;
  • incidents escalate in severity and frequency;
  • the absence of derogatory words (commonly heard as part of racist and other hate crimes) can make gathering of evidence of hostility more difficult. However, where such evidence is not available, but there is evidence of the offender targeting a vulnerable victim because of their disability, or causing greater harm to a disabled person, this should be presented to the court as it is relevant to the seriousness of the offence;
  • multiple perpetrators are involved in incidents condoning and encouraging the main offender(s) - often filming on their mobile phones and sending pictures to friends/social networking sites, YouTube etc.;
  • false accusations of the victim being a paedophile or "grass";
  • sustained attacks, excessive violence;
  • cruelty, humiliation, degrading treatment, often related to the nature of the disability for example blindfolding someone who is profoundly deaf, destroying mobility aids etc;
  • barriers to, and negative experience of, reporting to criminal justice agencies which leads disabled people to feel that they are not being taken seriously;
  • disabled people have a tendency to report incidents to a third party rather than to the police.

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Common Erroneous Assumptions in Disability Hate Crime cases

It cannot be disability hate crime because:

  • the offender is the victim's carer, friend or family member;
  • the offender is disabled too;
  • the offender has assaulted other people and they were not disabled;
  • the victim was just in the wrong place at the wrong time;
  • the victim is not in fact disabled;
  • the offender was motivated by drink and anger;
  • the victim does not have an impairment that is easily identifiable;
  • the victim gave 'consent' or returned to the abusers following earlier incidents.

None of these factors rules out a disability hate crime. Erroneous assumptions can lead to prosecutors overlooking or misinterpreting information/evidence that is before them, or failing to look for that evidence.

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Identifying Disability

For the purposes of s.146, "disability" means any physical or mental impairment - see s.146 (5). Section 146 is also relevant to cases where the offender has assumed a person is disabled, whether or not that assumption is correct.

It should be noted that the Equality Act 2010 and s.146 of the Criminal Justice Act 2003 do not define "disability" in identical terms. Issues arising under the Equality Act 2010 will therefore need to be considered in the light of the statutory definition of disability in that Act and s.146 issues must be considered in accordance with the definition of disability in s.146(5) of the Criminal Justice Act 2003.

The definition of disability in s.146 includes people living with HIV or AIDS.

In some cases, disabilities can be masked or exacerbated by alcoholism and drug dependency. Some people have a combination of disabilities. Some disabilities are obvious, some are hidden. Some people may not wish to disclose the fact that they have a disability.

Medical confirmation is not necessary to put a prosecutor on notice that a person might have a disability and may have been targeted because of it.

For example, where the victim of an offence is a local "eccentric" known to talk to himself, shout at people, dress and behave strangely - those factors, in themselves, neither point towards nor away from the possibility that he was targeted for being or perceived to be disabled.

Again, it is important that prosecutors fully explore the surrounding circumstances to an offence. Difference is often a significant indicator in hate crimes, whether based on race, religion, sexual orientation, transgender status or disability.

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Preparing and Managing the Case

Case Review

In every case where disability is a relevant factor, the reviewing prosecutor(s) should fully address:

  • how s.146 of the Criminal Justice Act 2003 does or does not apply to the circumstances of the case and give reasons for their decision;
  • if s.146 does not apply, whether there is evidence of the offender targeting a vulnerable victim because of their disability, or causing greater harm to a disabled person;
  • what, if any, special measures seem appropriate under section 16 or section 17 of the Youth Justice and Criminal Evidence Act 1999 - to be discussed with the witness in the first instance and then, possibly, for a meeting to be held with the witness to discuss further; and
  • any other issues relevant to the disability, such as ensuring enquiries are made about other forms of support the witness may need regarding transport, medication, timing of court appearances etc; and
  • what, if any, ancillary order applications may be appropriate at the conclusion of the case e.g. a restraining order under s.5 of the Protection from Harassment Act 1997 or Criminal Behaviour Orders.

All these issues should be kept under continuous review.

In some cases, where a disabled person is suspected of committing an offence, it will be important to explore whether that person has themself been the victim of previous incidents involving, in particular, the current alleged victim.

Many disabled people report being the victim of repeated incidents, being deliberately goaded and provoked into reacting and then finding that they are arrested as the offenders. Proper application of the Code for Crown Prosecutors will assist prosecutors to reach the right decision in each case.

A review of cases involving disability should consider the following non-exhaustive set of issues:

Incident:

  • Are there false accusations of the victim being a paedophile or a "grass"?
  • Was it a sustained attack?
  • Did it involve excessive violence?
  • Was cruelty, humiliation or degradation involved?
  • Was there any focus on the disability itself or disability aids? For example, language, gestures, gratuitous damage to hearing aid, crutches, wheelchair, scooter etc, blindfolding a profoundly deaf victim?

Offenders:

  • Was hostility based on the victim's disability demonstrated by the perpetrator?
  • Did the offender target or cause harm to a victim? who was in the circumstances vulnerable because of their disability? Although such evidence will not necessarily support a s.146 uplift, it will be relevant to sentence as an aggravating factor.
  • Have there been any previous incidents involving the offender and hostility or targeted ASB?
  • If so, what was the nature and location of previous incidents?
  • Have the incidents escalated in severity and frequency?
  • Has opportunistic offending become systematic and regular targeting?
  • What is the status of the offender - "friend", carer, acquaintance, relative, stranger?
  • What was the role of any bystanders?
  • Were there multiple perpetrators condoning and encouraging, taking photos/videos?

Disability:

  • What is the actual or perceived disability involved?
  • Did the actual/perceived disability facilitate the commission of the offence(s)?
  • Was the actual/perceived disability completely co-incidental?
  • What evidence is there to suggest this is NOT a s.146 disability hate crime?

Support Needs:

  • Prosecutors should ensure careful use of vocabulary.
  • Prosecutors should carefully consider support and/or special measures including intermediaries.
  • Is further action or information needed by external partners? Housing / Social Care etc.
  • Is ongoing protection needed? For example Criminal Behaviour Order (CBO), housing injunction, eviction etc.

Views of others:

  • What are the views of carer / relatives / others?

If satisfied that there is sufficient evidence to prove that the offence is aggravated in accordance with section 146, prosecutors should make it clear to the defence and to the court at the earliest opportunity that they intend to so advise the court for sentencing purposes.

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Bail

See also the legal guidance on Bail.

Bail conditions may be appropriate in hate crime cases, for example, to address concerns about interference with witnesses or the commission of further offences.

The time after an offender is charged with a crime can cause anxiety for the disabled victim. Some disabled victims may well be dependent for their care on the suspect / defendant and in such cases we should work with partners to identify support mechanisms which may be provided in the community. At court, it is vital that we have as much information as possible about the offence, the effect on the victim and any fears or concerns that the victim may have about repeat offending or intimidation in order to make the decision whether to oppose bail or seek conditional bail. The College of Policing Hate Crime Operational Guidance (2014) advises that the following information should be provided to the CPS:

  • details of the defendant's previous convictions;
  • details of any previous incidents involving the defendant;
  • details of any previous breaches of bail conditions;
  • the police view on victim and family safety;
  • the likelihood of recurrence;
  • the existence of any other orders e.g. ASBOs, CBOs, civil injunctions;
  • any Victim Personal Statement; and
  • any other relevant information.

Care should be taken when formulating conditions to ensure that the victim retains as much freedom of movement as possible by curbing the ability of the defendant to approach or intimidate the victim at home, work or when in public.
It is important that any changes to the bail conditions or custody status of a defendant are communicated to the victim in accordance with the Code of Practice for Victims of Crime (Victim's Code).

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Victim and Witness Issues

Information and support for disabled victims and witnesses

Those affected by disability hate crime are sometimes reluctant or unable to report the incident without support and for fear of repeat victimisation. This may also be the case where disabled people are targeted because of their unequal access to safety or on account of the environment in which they live, for example, in a hospital, care home or in their own home. Even if incidents have been reported disabled people may be reluctant to give evidence if the perpetrator is prosecuted, or may need particular support and help to do so. Prosecutors should do everything that they can to make giving evidence in court as easy as possible.

Therefore, prosecutors must ensure that the standards of witness and complainant care as set out in the Code of Practice for Victims of Crime (Victim's Code) and the Prosecutors' Pledge are adhered to. Support will also be available from the police and also through Witness Care Units, Social Services and other support agencies, which should continue throughout the life of the case.

As in other cases, we have a duty to inform the victim where the charge is withdrawn, discontinued or substantially altered: see the Victim's Code and the Prosecutors' Pledge. In those circumstances the prosecutor must notify the victim. If the victim is vulnerable or intimidated, persistently targeted, or a victim of the most serious crime (this category includes hate crime) the prosecutor must notify them within one working day and within five working days for other victims. For disability aggravated offences, the prosecutor must also offer to meet the victim to explain the decision. Where a prosecutor has made a decision not to charge during a face to face consultation with an investigator, the investigator must advise the victim.

In addition, if a decision is taken about the case which has the result that evidence of aggravation (the s.146 CJA 2003 element) will no longer be put before the court (therefore reducing the seriousness of the case and the sentence), a letter should be sent to the victim, even though there is no alteration to the charge. However, where there is evidence of the offender targeting a vulnerable victim because of their disability, or causing greater harm to a disabled person, the letter should explain that, following any conviction, this evidence will be relevant to the seriousness of the offence, and should be reflected in any sentence.

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Victim Personal Statements

The Victim Personal Statement (VPS) scheme gives victims an opportunity to describe the wider effects of the crime upon them. Prosecutors can use these statements to help them make decisions about cases, for example, when deciding whether they should ask the court to impose conditions when a defendant is on bail.

In addition to making a VPS, victims are entitled to say whether they would like to read their VPS aloud in court or whether they would like it read aloud or played (if recorded) for them (usually by the prosecutor). In all cases, the VPS and the information about the victim's preference must be relayed to the court at the first hearing by the CPS advocate. It is for the court to decide whether or not to allow the victim to read their VPS aloud.

If there is no VPS on the file, prosecutors should ask the police whether the victim has been asked whether they wish to make one.

The defence and the court should be provided with a copy of the VPS prior to the sentencing hearing. For further guidance see the legal guidance on Victim Personal Statements.

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Special measures, including the use of an intermediary

Prosecutors should be familiar with the provisions of Part II of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act) and the availability of special measures for vulnerable or intimidated witnesses. Special measures can help disabled people give evidence in the best way and with as little stress as possible.

Prosecutors should refer to the legal guidance on Special Measures. Prosecutors should be particularly aware of the availability and potential value of the use of an intermediary, whose services enable witnesses and the court to communicate.

When an application is made for special measures, the witness should be asked if he or she would like to meet the prosecutor. The purpose of the meeting is not to discuss the evidence in the case, but to reassure witnesses that their needs will be taken into account and thereby help build up their trust and confidence.

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Reporting restrictions for adults

Section 46 of the 1999 Act allows the CPS to apply for an order preventing the reporting of certain details of witnesses in the media that may lead to their identification. The court must be satisfied that the quality of evidence or level of cooperation given by the witness is likely to be diminished by reason of fear or distress about being identified as a witness, and that it is in the interests of justice and the public interest to allow the application. Such applications may sometimes be appropriate in respect of disability hate crime victims46 of the 1999 Act allows the CPS to apply for an order preventing the reporting of certain details of witnesses in the media that may lead to their identification. The court must be satisfied that the quality of evidence or level of cooperation given by the witness is likely to be diminished by reason of fear or distress about being identified as a witness, and that it is in the interests of justice and the public interest to allow the application. Such applications may sometimes be appropriate in respect of disability hate crime victims.

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Help for deaf people and for people with a speech impairment

A witness who is deaf or has a hearing impairment may require the services of a qualified Sign Language Interpreter or, for those who do not know or use sign language, a Lipspeaker in order to give their evidence at court. Only registered Sign Language Interpreters or Lipspeakers should be used. They should normally be selected through the MoJ Framework Agreement for interpretation and translation services, from the National Register of Public Service Interpreters (NRPSI) or The National Registers of Communication Professionals working with Deaf and Deafblind People (NRCPD), supported by Signature (previously, The Council for the Advancement of Communication with Deaf people (CACDP)). See the legal guidance on Interpreters and the National Agreement.

Selection through the MoJ Framework Agreement is strongly recommended as this offers a minimum and measurable standard of training and quality assurance and interpreters are subject to a Code of Conduct, standards of competence and professional skills, and disciplinary proceedings.

The true record of the original statement of a witness or defendant who uses sign language is a video recording, not the interpreter's written or oral version of what they say the defendant or witness conveyed: see R v Raynor 165 JP 149, CA; [2000] TLR 669 and R v Governor of Brixton Prison ex parte Saifi [2001] 1 WLR 1134.

A witness who has a speech impairment may be permitted to write down his or her evidence at court.

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Use of interpreters

Independent interpreters should be made available to help the witness give evidence in the language of their choice as disability hate crime is also a prevalent feature among the ethnic minority communities. This will normally be the witness's first language, unless specific circumstances result in their second language being more appropriate e.g. the witness could be perfectly fluent in English, but might use their first language to express intimate or more complex concepts. See the legal guidance on Interpreters and the National Agreement.

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Treatment of witnesses in the courtroom

The CPS is committed to treating witnesses at court with respect and sensitivity. Whenever possible we should introduce ourselves at court and try to put nervous or vulnerable witnesses at ease and explain court procedures. Prosecutors should, wherever possible, indicate how long victims may have to wait before giving evidence and explain any delay in proceedings. They should also make sure that victims and witnesses are released from the court building as soon as possible after giving evidence.

Prosecutors should ask the court to intervene if the defence advocate is being aggressive or not giving the victim or witness time to answer a question. The prosecutor will also challenge the defence if they make unfair comments about the victim's character.

It may sometimes assist prosecutors to refer to the Equal Treatment Bench Book, which can be found at http://www.judiciary.gov.uk. The book contains clear guidelines for magistrates and judges about appropriate language and behaviour.

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Withdrawals in disability hate crime cases

When, after reporting a crime, a victim withdraws support for a prosecution or indicates an unwillingness to give evidence, certain steps must be taken:

  • ensure that an experienced prosecutor supervises the case;
  • if the victim decides to withdraw support, ask the police to take a written statement from the victim explaining the reasons for that withdrawal, confirming that the original complaint was true and identifying whether the victim has been put under any pressure to withdraw support; and
  • ask the police to give their views.

The College of Policing Hate Crime Operational Guidance (2014) advises that, in these circumstances, the officer must include in the report to the CPS his or her views on:

  • the reasons given by the victim;
  • how the victim would react if compelled to attend court;
  • future risks to the safety of the victim and their family; and
  • the impact on the wider community.

As a result of receiving the withdrawal statement and accompanying police report, prosecutors may need to consider whether further charges, for example, witness intimidation or harassment are appropriate. It may also be appropriate to ask the police to offer the victim the services of a specialist support agency if this has not already been done.

In cases of disability hate crime, the reasons why the victim no longer wishes to give evidence may be because the victim lives in a place in which they feel isolated or particularly vulnerable, where supporting the prosecution may place the victim at further risk of harm, such as in domestic violence cases or situations where the defendant is the victim's carer.

In some cases, a special measures application may provide sufficient reassurance to the victim for them to reconsider and support a prosecution. If such an application is not possible or the victim remains unwilling, in any event, consideration must be given to which of the following alternatives is possible and appropriate:

  • proceeding without using the victim's evidence, for example by relying on statements from other witnesses, 999 call recordings, admissions in interview, CCTV evidence, forensic evidence, photographs and officers' statements;
  • making a hearsay application to admit the victim's evidence under section 116 of the Criminal Justice Act 2003;
  • compelling the victim to give evidence; or
  • discontinuing.

Background information will assist a prosecutor to make the correct decision about how to proceed in a case where the victim has withdrawn their support for the prosecution. Some of the factors that should be considered include:

  • the ability of the victim to testify;
  • whether there is an ongoing relationship between the victim and the defendant, for example, where the defendant is the victim's carer;
  • if there is an ongoing relationship, the history of the relationship and any instances of previous abuse;
  • the chances of the defendant offending again;
  • the impact on the victim of proceeding or not proceeding with the case; and
  • whether there have been any threats made since the incident.

If there is sufficient evidence either without the victim's testimony or through the victim's evidence being admitted under the hearsay provisions, and provided the public interest stage continues to be met, there may not be any reason to apply for a witness summons. Generally, the more serious the offence (because of, for example, the level of violence used or the real and continuing threat to the victim or others) the more likely it is in the public interest to prosecute, even if the victim does not support the prosecution. It is important for perpetrators of hate crime to know that a prosecution will not simply rely on the victim's willingness to give evidence.

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Witness summonses

Section 169 of the Serious Organised Crime and Police Act 2005 allows the court to issue a witness summons if it considers it to be in the interests of justice to do so. It should only be considered as a last resort.

Before taking a decision to issue a summons, prosecutors must make enquiries to satisfy themselves as far as possible that the safety of the victim will not be endangered by their decision. The safety of the victim is a prime consideration. Some of the factors to be considered in assessing the safety of the victim are:

  • the views of the victim about the impact on their safety in proceeding with the prosecution;
  • whether a witness summons would make it safer for the victim to attend by effectively making it clear that the decision to proceed with the case is that of the CPS rather than that of the victim;
  • the views of the officer in the case, including the likelihood of further harm and any risk assessment carried out by the police; and
  • whether or not the victim is being supported by any specialist agency outside the CJS

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Discontinuance

If an experienced prosecutor has considered whether it is possible to proceed without the victim, and decided that it is but that it would not be right to do so in the particular circumstances, the case will be discontinued. These cases will be rare and should be marked as discontinued in the public interest.

Where it is not possible to continue without the victim and the decision is made not to compel attendance, again the decision to discontinue is on public interest grounds.

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Sentencing

Section 146 of the Criminal Justice Act 2003 and relevant case law

Whilst s.146 does in itself not create any new offences, it does impose a duty upon courts to increase the sentence for any offence committed in any of the circumstances mentioned in section 146(2):

  1. 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 ... a disability, or presumed disability, of the victim.
    For example, an assault upon a disabled person by an offender who, immediately before hitting the victim, makes a derogatory and offensive comment about the person's disability.
    or
  2. that the offence is motivated (wholly or partly) ... by hostility towards persons who have a disability or a particular disability.
    For example, assault of the parents of a disabled child where there is evidence of hostility towards the disabled child by the offender because of previous remarks made.

It is important to note that (a) and (b) are alternatives. This means that in a case where a demonstration of hostility can be proved (this will usually be in the form of spoken words) there is no need also to prove a hostile motivation, and vice versa. It may be helpful to think of section 146(2)(a) as being about 'demonstration' and section 146(2)(b) as being about 'motivation'. Motive can be more difficult to prove but proactive case building can help to identify previous offending of a similar nature or patterns of offending. Where relevant, prosecutors will look to make appropriate use of bad character evidence. It is sufficient for the offence to be only partly motivated by hostility, as well as being motivated by other matters.

Under section 146(3), the court must treat the fact that the offence was committed in any of those circumstances as an aggravating factor and state so in open court.

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Meaning and ambit of section 146

To understand the meaning and ambit of sections 146(2)(a) and (b), it is reasonable to have regard to the case law on the proper construction of sections 28(1)(a) and (b) of the Crime and Disorder Act 1998, which relate to racially and religiously aggravated offences, as the wording of section 146 mirrors that used in section 28.

Disability

See the section above on Identifying Disability

Hostility

Hostility is not defined in the Act. In the absence of a precise legal definition of hostility, consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike.

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Demonstrated: S.146(2)(a)

The words of the subsection require an indication by the offender of hostility towards the victim based on a disability. The demonstration of hostility must be nearly contemporaneous to the conduct element of the offence (at the time of the offence or immediately before or after). The demonstration of hostility is likely, in many cases, to be something different from and additional to the conduct element of the offence.

It will therefore require evidence of words or actions which show hostility towards the victim. This may be in the form of spoken or written words. The words "cripple out" spray painted on the home of a disabled person would be sufficient to prove a demonstration of hostility for the purposes of section 146(2)(a), as would the words "take that, you blind bastard" shouted by the perpetrator immediately after an assault on a blind victim.

The case law on racially aggravated offences illustrate that "demonstrations" of hostility often involve swear words, for example: "bloody foreigners" (R v Rogers [2005] EWCA Crim 2863); "black bastard" (R v Woods [2002] EWHC 85) or "African bitch" (R v White [2001] EWCA Crim 216).

In R v Rogers the court also observed that the necessary hostility could be demonstrated in other ways, such as the wearing of swastikas or the singing of certain songs. In RG & LT v DPP [2004] EWHC 183 May LJ said "It may be possible to demonstrate racial hostility by, for instance, holding up a banner with racially offensive language on it".

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Demonstrated Hostility

A demonstration of hostility need not be based on any malevolence towards the group in question. Disposition at the time is irrelevant: see DPP v Green [2004] EWHC 1225 (Admin.) and R v Woods, in which it was irrelevant that the offender, who was having a go at a doorman who refused entry to his friend, might well have abused anyone standing in the victim's place by reference to any obvious physical characteristic.

Offender's hostility can be based on other factors

It is immaterial for the purposes of section 146(2)(a) whether the offender's hostility is also based on any other factor. For example, where a wheelchair user is verbally abused by a passenger for causing the train to be delayed whilst ramps are sought, it is immaterial that the main reason for the passenger's anger is the fact of the delay.

In DPP v McFarlane [2002] EWHC 485 (Admin), the defendant shouted threatening and racist abuse at the victim after finding the victim parked in a disabled bay in which the defendant was entitled to park. The Administrative Court found that once the "basic" offence was proved and that racist language was used that was hostile to the victim, it was immaterial that the defendant may have had an additional reason for uttering the racial words in question.

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The victim's reaction to the demonstration of hostility

It does not matter what the victim thought about the "demonstration of hostility".

In R v Woods, the victim, a nightclub doorman, refused entry to one of the defendant's companions. The defendant became abusive towards the doorman and called him a "black bastard" immediately before punching him in the head. In giving evidence, the victim said that he was "not bothered" by such comments. The magistrates were not satisfied that the assault was racially aggravated. The Administrative Court found that whilst the primary reason for the offence was not racially motivated, the use of racist abuse during the commission of the basic offence nonetheless made out the test for racial aggravation in section 28(1)(a). The point was made that, ordinarily, the use of racially (or religiously) insulting remarks would in the normal course of events be enough to establish a demonstration of hostility.

Demonstrated: multiple offenders

Prosecutors will need to analyse carefully the facts of a particular case to determine whether a particular offender can be said to have participated in a demonstration of hostility.

In R v Davies and Ely [2004] 2 Cr App R (S) 148 (29), a joint allegation of wounding with intent, the fact that one offender uttered words of racial abuse during the attack did not make all guilty of the aggravated offence, on the facts of the case, and the defendants should not be so sentenced when the evidence did not identify the one who uttered the words.

However, in RG and LT v DPP May LJ said that:

"an offender may demonstrate racial hostility by joining in the activities of a group of people where a sufficient number of members of the group are themselves demonstrating racial hostility, and where the defendant's adherence to the group is such as to go beyond mere presence within the group, but so as to associate himself or herself with the demonstration of racial hostility which the group as a whole is displaying".

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Motivated: S.146(2)(b)

By contrast to subsection (2)(a), section 146(2)(b) is concerned with the offender's motivation, requiring proof that the substantive offence was wholly or partly motivated by racial hostility. Motive can be established by evidence relating to what the defendant may have said or done on other occasions. It has been held that section 28(1)(b) of the 1998 Act, which refers to "hostility towards members of a racial group", is wide enough to include hostility towards one member of such a group, since section 6(c) of the Interpretation Act 1978 provides that "words in the plural include the singular" unless the contrary intention appears, and no such contrary intention appears in the provision.

In addition, the circumstances include those where an offence is motivated by hostility towards a third party, based on the relevant characteristic, who is not present: see Taylor v DPP [2006] EWHC 1202 (Admin). Accordingly, an offence committed against one person (or many persons) but motivated by hostility towards another person or persons with a disability would seem to satisfy the statutory test. However, note that in DPP v Howard [2008] EWHC 608 (Admin), (the offender had chanted "I'd rather be a Paki than a cop" at his two neighbours, who were police officers off duty), the Administrative Court observed that there was no question of section 28(1)(a) being of application: it was not suggested that the victims were members of the identified racial group.

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Elements of s.146 and how to prove them

To assist prosecutors to build cases that will satisfy the criteria for an increased sentence under s.146, the elements of each subsection that need to be satisfied are set out below, followed by the evidence that will be necessary or useful to establish those elements.

A. Demonstrating hostility

The elements to be satisfied are that:

  1. The offence to be sentenced has one or more identifiable victims.
  2. The victim (or one of them) has a disability (i.e. some physical or mental impairment) or there is evidence that the offender presumed that he or she did so at the time of the offence.
  3. The offender, by words or deeds or other indication, demonstrated (i.e. actually manifested or indicated) some hostility towards the victim based on the actual or presumed disability. Where the offence itself involves some hostile act towards the victim (i.e. an offence of assault) there must additionally be some evidence of a demonstration of hostility on grounds of disability or that the hostility demonstrated was indeed based on the actual or presumed disability. It need not be proved that the offender was actually motivated by any malevolence on grounds of the disability but it must be shown that, viewed objectively, he did in fact make some outward indication of hostility on that ground. Verbal abuse, referring to the disability or a feature of it, will suffice provided it actually demonstrates hostility towards the victim's disability. Expressions of, or behaviour consistent with, contempt for the individual victim is unlikely alone to suffice, unless it can be show to amount to the necessary demonstration of hostility based on the actual or presumed disability.
  4. The demonstration of hostility must have occurred at the time of or immediately before or after the conduct element of the substantive offence.
  5. In any case involving multiple offenders, consider first whether there is evidence that each offender, by his behaviour in committing the conduct element of the substantive offence, associated himself with the demonstration of hostility proved (in which case all will be liable for the aggravating feature). If there is no such evidence, can it be shown that the individual offender was himself responsible for the demonstration of hostility relied upon.

The following evidence will be necessary:

  1. Evidence of the utterance, doing or showing of any indication of hostility towards the victim. The evidence should be as particular as possible as to the terms of the indication of hostility.
  2. Evidence that the victim actually suffers from a disability.
  3. Alternatively and/or additionally, evidence that the offender either knew or presumed that the victim had a disability.
  4. Evidence that the hostility referred to in (1) was based on the actual, known or presumed disability of the victim.
  5. Evidence that the demonstration of hostility relied upon was more or less contemporaneous with the conduct element of the offence, or that it can immediately be related to it in time.

In addition, evidence of some malevolence towards the victim based on his or her actual or presumed disability, although not necessary, will be useful. This need not necessarily be contemporaneous to the substantive offence.

It should be noted that mere evidence of the commission of the substantive offence against a disabled victim will not suffice. That is not to say that it is irrelevant: evidence of the commission of an assault offence or one that involves the use or threat of violence may well be good evidence of the relevant hostility being present or demonstrated. Typically however there will be another explanation for the commission of the offence and so further evidence of a specific, express demonstration of hostility based on disability will be required.

Examples

The following examples may help to illustrate the sort of questions a prosecutor needs to ask in order to determine the type of evidence required for a "demonstration" of hostility. In all cases it will be necessary to examine carefully the particular circumstances of the offending, and consider whether the factors present amount to a "demonstration" of hostility. Evidence of accompanying words should always be sought but are not always necessary, as the "demonstration" can be proved in other ways:

  1. A male carer repeatedly has sexual intercourse with young women who have severe communication and learning disabilities.

    Questions:
    • Can the evidence of repeat offending against such persons be seen as a pattern of targeting which amounts to hostility?
    • Can the views of the victims be ascertained by means of special measures?
  2. Kicking away the stick of a blind man during a robbery.

    Questions:
    • Is there evidence of accompanying words?
    • Is the action of kicking away the stick gratuitous and unconnected with the robbery itself or part of a tactic of disorientation in order to commit robbery?
    • Is the action necessary to complete the offence?
    • Is the action after the offence is completed?
  3. Tipping a disabled person out of his wheelchair during a robbery.

    Questions:
    • Is there evidence of accompanying words?
    • Is the action gratuitous and unconnected with the robbery or is it done in order to go through his trouser pockets to facilitate the robbery itself?
    • Is the action necessary to complete the offence?
    • Is the action after the offence is completed?
  4. Acquisitive offending, such as theft, or assault against, someone with learning difficulties (which amount to impairment).

    Questions:
    • Is there evidence of accompanying words?
    • Does the offending amount to the sort of behaviour sometimes referred to as "mate crime"? Although not all such offending will attract a s.146 uplift, can a demonstration of hostility be shown by, for example, a number of occasions or a course of conduct of repeated bullying?
    • Are there any gratuitous actions which are not necessary to complete the offence? For example, actions calculated to humiliate the victim, such as urinating on the victim?
  5. A young woman, with learning disabilities amounting to impairment, is held captive by her friends who treat her to an escalating range of humiliating emotional and physical abuse, including serious assault.

    Questions:
    • Is there evidence of accompanying words?
    • Is there any evidence of recording of the offending behaviour by video phone?
    • Can the combination of escalating abuse, utterances and offences amount to a demonstration of hostility towards the woman based on her disability or presumed disability?

B. Motivated by hostility

The elements to be satisfied are that:

  1. The offender can be shown to harbour a hostility towards persons who have a disability or a particular disability (some actual physical or mental impairment). It is arguable that this requirement is satisfied by evidence of the offender's antipathy to one such person for that reason, by the operation of section 6(c) of the Interpretation Act 1978 (see Taylor v DPP [2006] EWHC 1202 (Admin)).
  2. At least one reason why the offender committed the offence was his hostility towards that person or such persons who have a disability i.e. his purpose or incentive for committing the substantive offence included that hostility, even if it was also motivated by other reasons. It need not be shown that it was his sole or main motivation.
  3. It need not necessarily be the case that the immediate victim of the offence suffers from a disability or the particular disability founding the motivation. Indeed, it is not necessary that there is one, or more than one, individual victim of the offence, provided that the directed hostility is one of the motivations. For example, an offence may be directed at someone collecting for a disabled charity or the premises of such a charity, or at the partner or child of a disabled person.

The following evidence will be necessary:

  1. Primary evidence, whether direct or circumstantial, from which it can be deduced or inferred that the offender has a hostility towards people (or one person) with a disability or a particular disability. The kind of evidence will vary from case to case but may well include, for instance:
    • words, whether contemporaneous or not;
    • writings;
    • social media postings;
    • insignia;
    • presence with others promoting such hatred or association with them;
    • previous incidents of hostility, e.g. targeting only disabled persons as the victims of criminal attacks or forms of abuse, such as a disabled person's house for criminal damage but no other houses in the same street; and
    • previous convictions for offences directed at similar victims.
  2. Evidence from which it can be inferred that the current offence is motivated by the hostility referred to. In some cases the existence of the hostility and the fact of its contribution to motivation may derive from the same evidence and may be direct and simple: for example, the words accompanying the conduct element of the offence, as reported by the victim, may make clear the hatred of the offender for disabled people and the association of the feeling with the commission of the offence. In other cases a more determined search for such evidence will be necessary.

In cases where the obvious motivation for the commission of the offence is common to all such offending (theft, robbery, sexual offending, drugs offending, etc.) there will have to be discrete, additional evidence of motivation which displaces the obvious inference.

In cases where the offence charged usually has a fact specific motive (public order offences directed at individuals, offences against the person, etc.), it may be that the primary evidence readily gives rise to the conclusion that the hostility is based on disability. If not, some further, secondary evidence of motive will be necessary.

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Disability hate crimes and crimes committed against disabled people

Not all crimes committed against disabled people are disability hate crimes. In some cases the fact of a disability may be completely unrelated to the commission of the offence such as when the offender is unaware of the victim's disability.

It is also important to make a distinction between a disability hate crime and a crime committed against a disabled person because of his or her perceived vulnerability. Some crimes are committed because the offender regards the disabled person as being vulnerable and not because of hostility towards their disability.

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How to distinguish hate crimes from crimes committed against disabled people

When seeking to prove a hate crime and apply for a s.146 uplift, we seek to draw the inference that the targeting is motivated by the required hostility or, objectively viewed, is a demonstration of such a hostility. However, in many cases there will be an alternative inference that can be drawn.

For instance, in the case of acquisitive crime, such as the theft of a wallet from a blind person, the equally obvious reason for selection of the particular disabled victim is that it renders the commission of the substantive offence much more easy and the likelihood of immediate detention or apprehension that bit less. In other words, offenders tend to pick easy targets, such as the smallest or drunkest or least mobile person to rob or steal from.

If both inferences - hostility / easy target - are equally consistent conclusions from the primary facts, the inference relating to hostility is unlikely to be proved. For this reason, many offences against disabled persons, even when characterised by exploitative behaviour, or taking advantage of the person, or contempt for the person, may not amount to a hate crime for the purposes of s.146.

In the case of sexual offences, similar considerations may well arise. In such cases the usual motivation of the offender is his own sexual gratification. Further evidence of a dual motivation is likely to be necessary, or evidence of a positive demonstration of the required hostility, beyond merely that the offender was aware that the victim was disabled.

In the case of offences against the person, very often the motivation for the violence will be apparent and capable of proof. Where it appears motiveless but is accompanied by a sufficient demonstration of hostility, then the first limb of s.146 may well be satisfied. Where there is no such demonstration and no obvious contemporaneous evidence of motive, the suspicion that the case is one of disability hate crime may arise. In such a case, it will be necessary to find other evidence of the animosity of the offender towards persons with a disability or particular disability. This may be evident from, for example:

  • The offender's behaviour on other occasions;
  • Previous utterances;
  • Possession of material or articles.

Depending on the nature of the disability of the victim, some circumstances will be covered by charging specific offences where the condition of the victim is an element of the substantive offence. For example:

  • The offence by a care worker of sexual activity with a person with a mental disorder, under s.38 of the Sexual Offences Act 2003.
  • The offence by a carer of ill-treatment or wilful neglect of a person who lacks capacity, under s.44 of the Mental Capacity Act 2005.

In order to determine whether a case is a hate crime or one that merely targets a vulnerable victim, prosecutors must make sure that the police obtain a thorough account from the victim, especially as to things done or said at the time of the offence and as to any matter of history, before or afterwards. In addition, the separate taking of a full and complete Victim Personal Statement (see above), is of the utmost importance in such cases.

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Vulnerability and sentencing

Prosecutors should note that even where s.146 does not apply, the vulnerability of a victim due to their disability will make an offence more serious for sentencing purposes. Accordingly, where there is insufficient evidence to apply the s.146 uplift but there is evidence that the victim was vulnerable, particularly where the victim was considered an easy target due to their vulnerability, cases should be built and presented in such a way to ensure that the judge is able to properly reflect the seriousness of the offence when passing sentence.

Prosecutors should always have regard to the relevant Sentencing Council Guidelines, including the Overarching Principle: Seriousness Guideline. Under many of the Guidelines, including those relating to Robbery, Theft and Burglary, Sexual Offences, Domestic Violence, Assault and Fraud, the seriousness of the offence, and hence the severity of sentence, is increased where the offender is more culpable because he targets a victim who is vulnerable due to disability, or where a greater degree of harm is caused, due to the disabled victim being vulnerable. All Sentencing Council Guidelines can be found on the Sentencing Council website.

Where appropriate, prosecutors should explain to the court why s.146 does not apply and why the sentence should nevertheless be increased (albeit not to the degree that would apply in a s.146 case), due to the victim's vulnerability. Relevant sentencing Guidelines should be highlighted, including any aggravating factors relating to the disability or vulnerability of the victim. Judges should be encouraged to state in their sentencing remarks the basis for any increase in sentence due to the victim's vulnerability.

This approach was approved in R v Bridge [2012] EWCA Crim 2270, which concerned a s.146 uplift. The appellant pleaded guilty to offences of robbery and perverting the course of justice. He had spent time drinking with the victim, a young man who suffered from the effects of cerebral palsy. The victim told him of his disability, which caused him weakness on his right side. On leaving, the appellant struck him and beat him saying "Give me everything or I'll fuck you up", taking his jewellery and two mobile phones, leaving him with bruising and cuts to his face, mouth and head. The prosecution advocate told the court that the Crown did not contend that the case came within section 146 and so the judge sentenced on that basis but nonetheless took into account the disability of the victim as an aggravating feature. Holroyde J. said [13]:

"The prosecution rightly accepted that there was no evidence that the appellant either displayed hostility towards Mr Thomas based on his disability or that he was motivated by such hostility, but that simply means that a potential statutory aggravating factor was absent. It does not mean that Mr Thomas's disability was therefore irrelevant. The judge was entitled to act upon the unchallenged evidence that Mr Thomas had made the appellant aware of his disability. The judge was right to regard that knowledge of the vulnerability of the victim as an aggravating feature."

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Procedure in cases to which s.146 applies

Where the evidence to support s.146 has been identified, the intention to raise the issue should be noted at the earliest opportunity, usually at the first court hearing. Instructions to the prosecuting advocate should include an explicit request that an application for an uplift be made, with the basis for this clearly set out.

There is no procedure laid down by which the court is to determine whether a s.146 uplift should be applied.

If there is a trial, although not a necessary element of the offence, ideally the issues will at least have been canvassed during the evidence, so that the defendant can have an opportunity to deal with them. Care will have to be taken not to use this as an excuse to introduce evidence that is otherwise strictly inadmissible to prove the elements of the substantive offence, if it has no relevance to the matter in issue in the trial.

Following conviction, whether after a trial or on a plea of guilty, again the issues need to be raised and form part of the presentation of the case on sentence. Any basis of plea should be scrutinised before acceptance to ensure that the issue is either accepted or not denied. In most cases involving a plea, the defendant is unlikely to accept that section 146 applies to his case. See the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise for the principles to be followed when considering the acceptance of a plea.

In the event of a dispute, the burden of proving the requisite elements of either limb of s.146 is on the prosecution and the standard is the criminal one. Case law on racially aggravated offences confirms that the judge should not draw an inference that the offence was so aggravated and pass sentence on that basis without putting the defendant on notice and allowing him to challenge the inference: see for example R v Lester 63 Cr App R (S) 29. A Newton hearing may well be necessary. See the legal guidance on Newton Hearings for the procedure to be followed.

After hearing the relevant evidence, the court should announce whether the aggravating feature has been found proved. If it is not found proved, section 146 will not apply and the court will proceed to sentence accordingly. The sentence may still be increased (although to a lesser degree than where s.146 applies) if the victim was vulnerable: see above. If the aggravating feature is found proved, s.146(3) will apply and any sentence that the court would have imposed for the "basic" offence should be increased accordingly.

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Assessing the uplift in s.146 cases

How does the court decide on the sentence in a case to which s.146 applies?

Although Guidelines on sentencing disability hate crimes have not been published, the case law on racially aggravated crime provides helpful guidance.

How a court should decide the appropriate increase in sentence for racial aggravation was addressed by the Sentencing Advisory Panel in its advice to the Court of Appeal in 2000 and largely adopted by the Court in R v Kelly & Donnelly [2001] 2 Cr App R (S) 73 CA. It was recommended that:

  1. a sentencer should first arrive at the appropriate sentence without the element of racial aggravation but including any other aggravating or mitigating factors
  2. the sentence should then be enhanced to take account of the racial aggravation, increasing the sentence by an appropriate amount to reflect the degree of racial aggravation
  3. the sentencing judge should declare what the appropriate sentence would have been for the offence without the racial aggravation so that the sentence for the racial element of the offence can be clearly seen. That would lead to transparency in sentencing which would benefit both the public and the Court of Appeal (it should be noted that this process is particularly important in cases in which there is subsequently an argument about whether the sentence is unduly lenient)
  4. the appropriate amount to be added for the racial element of the offence would depend on all the circumstances of the individual case
  5. serious aggravating factors to be taken into account are:
    1. planning;
    2. a pattern of racist offending;
    3. membership of a group promoting racist activities;
    4. deliberately setting the victim up for the purposes of humiliation or to be offensive;
    5. if the offence took place at the victim's home;
    6. if the victim was particularly vulnerable or providing services to the public
    7. if the timing or location of the offence maximised the harm or distress it caused;
    8. if the expressions of racial hostility were repeated or prolonged;
    9. if fear and distress throughout a particular community resulted from the offence; and
    10. if particular distress was caused to the victim or the victim's family;
  1. less seriously aggravating factors are:
    1. if the racist element was limited in scope or duration;
    2. if the motivation for the offence was not racial; and
    3. if the element of racial hostility or abuse was minor or incidental.

The fact that the abuse may be of a relatively minor nature is not a reason for a prosecutor not to pursue an aggravated offence. The Sentencing Council's position is that hate crime related hostility or abuse, which is minor or incidental in the context of the overall offence, can properly be reflected in the penalty to be imposed.

Note that under the Assault Guideline, the s.146 statutory aggravating factor should be taken into consideration at step 1 (determining the offence category). There must be no subsequent element of double counting.

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Schedule 21 - Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence)

From 3 December 2012, section 65 (9) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends Schedule 21 paragraph 5(2)(g) by providing for a starting point of 30 years (rather than 15 years) for the minimum term for a life sentence for murder aggravated on the grounds of the victims disability (or transgender identity).

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Other factors and policy considerations

Sometimes the offence committed against a disabled person is one of domestic violence or a racist, religious or homophobic crime. Or, it may be that the disabled person who is the victim of or witness to a crime is a child or an older person. In such cases, it is important that reference is made to other relevant CPS Policies or guidance documents, for example:

When there is evidence of more than one form of hostility which may attract a sentence uplift, prosecutors should ensure that all relevant information is properly placed before the court to allow a suitable sentence to be passed. Prosecutors should state explicitly the forms of aggravation that attract an uplift, and note with care the comments made by the court when sentence is passed.

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Ancillary Orders

Prosecutors should ensure that the court has all relevant information concerning any order which might be imposed upon conviction.

Restraining orders

Whilst a court may make a restraining order of its own volition (under section 5 of the Protection from Harassment Act 1997) prosecutors have an obligation to remind courts of the option to impose a restraining order and should provide a draft order to the court setting out proposed prohibitions.

For further guidance see the legal guidance on Restraining Orders.

Criminal Behaviour Orders (CBOs)

In appropriate cases, prosecutor should consider applying for a CBO, which is available following a conviction for any criminal offence in the Crown Court, magistrates' court or youth court.

The court must be satisfied that the offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person.

Unlike for its predecessor, the ASBO, the behaviour in question may be directed towards persons of the same household.

Special measures are available in proceedings for CBOs in the case of witnesses who are under 18 and vulnerable and intimidated adult witnesses (sections 16 and 17 Youth Justice and Criminal Evidence Act 1999).

A CBO:

  1. Prohibits the offender from doing anything described in the order which might include a condition preventing specific acts which cause harassment, alarm or distress or preparatory acts which the offending history shows are likely to lead to offences (for example the individual entering a defined area);
  2. Requires the offender to do anything described in the order (for example, attendance at a course to educate offenders on alcohol and its effects).

An increasing number of incidents of anti-social behaviour are targeted at particular individuals, rather than neighbourhoods. Those individuals are often disabled or have a member of their family who is disabled.

Prosecutors must be proactive in seeking further information from the police where the target of the anti-social behaviour is disabled or has a disabled family member.

In all cases of hate crime, prosecutors should consider whether it is appropriate for the police to make further enquiries, for example:

  • asking the victim, the victim's carer and / or family, neighbours, housing agencies etc if there have been any other incidents involving this victim;
  • checking whether the suspects have been involved in any other incidents and, if so, whether ethnic minorities, gay, transgender or disabled people were victims on those occasions too.

Correctly identifying an anti-social behaviour case as a hate crime is important because the case can then be flagged and treated as a hate crime.

For further guidance see the legal guidance on Criminal Behaviour Orders.

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Unduly lenient sentences

It is possible that a crime that has been sentenced as a disability hate crime may become the subject of an unduly lenient sentence referral (for example wounding with intent, rape and robbery).

Sections 35 and 36 of the Criminal Justice Act 1988 empower the Attorney General to apply to the Court of Appeal for leave to refer for review any sentence which appears to the Attorney to be unduly lenient; which was passed on an offender for a limited range of offences; and which was passed in the Crown Court. A referral to the Court of Appeal must be made within 28 days of sentence. The 28 day time limit is absolute; there is no power to extend the time limit or to apply for leave to refer out of time. Submissions from Areas should be sent to the Unduly Lenient Sentence Team, Appeals Unit, Special Crime and Counter Terrorism Division.

For further guidance see the legal guidance on Unduly Lenient Sentences.

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Vocabulary

Prosecutors should avoid saying:

  • "bullying" - whilst this term is more commonly used in relation to the behaviour and experience of children and young people (by one person or group intended or perceived to cause hurt, pain, suffering, humiliation or degradation to another person or group) the use of this word can understates the seriousness of incidents that often involve intimidation, persecution, terror, fear, harassment i.e. behaviours amounting to criminal offences. Even "mere" queue barging, ridicule, mimicking, exclusion can amount to causing serious harassment, alarm or distress, particularly if repeated;
  • "has a mental age of" - comparison of an adult person with a child is often considered to be demeaning and unhelpful - better practice is a reference to the person's level of social functioning and understanding;
  • "mate crime" - people with learning disabilities or mental health issues are often "befriended" by people who then exploit them. The term 'mate crime' is used by some disability organisations within the disabled community to raise awareness of the issue. It is not CPS policy to use this phrase as it may introduces further confusion regarding terminology and is potentially confusing to people with learning disabilities.

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Hate Crime Co-ordinators

Prosecutors should work closely with their Area Hate Crime Co-ordinators to ensure they have an overview of all the disability hate crime cases in their Area, can identify trends and ensure cases are being properly dealt with.

Revised minimum standards for Hate Crime Co-ordinators were circulated in May 2015. Hate Crime Co-ordinators provide leadership on a range of hate crime related issues and support good governance. The standards reflect the need to deliver on both our corporate commitments and legal obligations.

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Annex A: Glossary

ADHD (attention deficit hyperactivity disorder) relates to learning and behavioural problems which are not caused by any serious underlying physical or mental disorder. It is frequently characterised by difficulty in sustaining attention, impulsive and disruptive behaviour, and excessive activity. Say: a person with ADHD.

AIDS (acquired immunodeficiency syndrome) is an infectious disease resulting in the loss of the body's immune system to ward off infections. The disease is caused by the human immunodeficiency virus (HIV). A positive test for HIV can occur without symptoms of the illnesses that usually develop up to ten years later, including tuberculosis, recurring pneumonia, cancer, recurrent vaginal yeast infections, intestinal ailments, chronic weakness and fever, and profound weight loss. Do not say: AIDS victim. Say: a person living with HIV; a person with AIDS; or a person living with AIDS.

Autism is a mental disorder originating in infancy that is characterised by self-centre subjective mental activity, especially when accompanied by withdrawal from reality, inability to socially interact, repetitive behaviour, and language dysfunction. Do not say: autistic. Say: a person with autism.

Blind describes a condition in which a person has loss of vision for ordinary life purposes. Visually impaired is the generic term used by some individuals to refer to all degrees of vision loss. Say: a person whose sight is impaired or a person who has low vision.

Brain injury describes a condition where there is long-term or temporary disruption in brain function resulting from injury to the brain. Difficulties with cognitive, physical, emotional, and/or social functioning may occur. Do not say: brain damaged. Say: a person with a brain injury.

Chronic fatigue syndrome is also called chronic fatigue and immune dysfunction syndrome. It describes a serious chronic condition in which individuals experience long periods of fatigue accompanied by physical and cognitive symptoms. Never ever use terms such as: Yuppie Flu; malingering; or hypochondria; as they inappropriately imply personality disorders. Say: a person with chronic fatigue syndrome.

Congenital disability describes a disability that has existed since birth but is not necessarily hereditary. The terms birth defect and deformity are inappropriate. Say: a person with a congenital disability.

Deaf refers to a profound degree of hearing loss. Hearing impaired or hearing loss are generic terms used by some individuals to indicate any degree of hearing loss-from mild to profound. These terms include people who are hard of hearing and deaf. Hard of hearing refers to a mild to moderate hearing loss that may or may not be corrected with amplification. Say: a person who is deaf or who has a hearing impairment/loss.

Developmental disability is any mental and/or physical disability usually starting in childhood or teens and continuing indefinitely. It limits one or more major life activities such as self-care, language, learning, mobility, self-direction, independent living, and economic self-sufficiency. This includes individuals with mental retardation, cerebral palsy, autism, epilepsy and other seizure disorders, sensory impairments, congenital disabilities, traumatic injuries, or conditions caused by disease (polio, muscular dystrophy etc). It may also be the result of multiple disabilities. Say: a person with a developmental disability.

Disability is a general term used for a functional limitation. It may refer to a physical, sensory or mental condition. Do not refer to disabled people as: the handicapped; handicapped persons; or being in special need. Impairment details can be used when citing laws and situations, such as access issues.

Disfigurement refers to physical changes caused by such events as burns, trauma, disease, or congenital conditions. Do not use the term 'victim'. Say: a person with burns.

Down's syndrome describes a chromosome disorder that usually causes a delay in physical, intellectual and language development and which usually results in incomplete mental development. Calling a person a mongol, mongoloid or a Down's child/person is unacceptable. Say: a person with Down's syndrome.

Learning disability/Learning difficulty describes a permanent condition that affects the way individuals take in, retain and express information. The term is favoured because it emphasises that only certain learning processes are affected. Do not say: slow learner; retarded. Say: a person with a learning disability.

Mental disability generally comprises mental disability, psychiatric disability, learning disability or cognitive impairment, which are acceptable terms. Always precede these terms with: "a person with ...".

Non-disabled is the appropriate term for people without disabilities. Normal, healthy (compared to unwell or disabled people), or even the word "whole", are inappropriate.

Psychiatric disability, psychotic, schizophrenic and other specific terms should be used only in the proper clinical context and should be checked carefully for medical and legal accuracy. Words such as crazy, maniac, lunatic, demented, schizo and psycho are highly offensive and should never be applied to people with mental health problems. Say: a person with psychiatric disabilities, emotional disorders, or mental disorders.

Seizure describes an involuntary muscular contraction, a brief impairment or loss of consciousness resulting from a neurological condition, such as epilepsy or from an acquired brain injury. The term "convulsion" should be used only for seizures involving contraction of the entire body. Do not say: a person has fits; or a person is spastic; or a person is a spastic. Say: a person with epilepsy; or even a person with a seizure disorder.

Small/short stature describes people generally under 4'10" tall. Never refer to dwarfs or midgets, which imply a less than full adult status in society. Dwarfism is an 'accepted' medical term, but it should not be used as general terminology. Beware of the (joke) term "vertically challenged". Say: a person of small (or short) stature.

Speech disorder is a condition in which a person has limited or difficult speech patterns. Never use mute or dumb. Say: a person who has a speech disorder or a person with a speech impairment.

Spinal cord injury describes a condition in which there has been permanent damage to the spinal cord. Quadriplegia denotes substantial or significant loss of function in all four extremities. Paraplegia refers to substantial or significant loss of function in the lower part of the body only. Do not use the term: someone with back pain. Say: a person with paraplegia; a person who is paralysed; or a person with a spinal cord injury.

Stroke is caused by interruption of blood to the brain. Hemiplegia (paralysis on one side) may result. Do not say: a person is a stroke victim. Say: a person is a stroke survivor; or a person who has had a stroke.

Substance dependence refers to patterns of substance use that result in significant impairment in at least three life areas (family, employment, health etc). Substance dependence is generally characterised by impaired control over consumption; preoccupation with the substance; and the denial of impairment in life areas. Substance dependence may include physiological dependence/tolerance withdrawal. Although such terms as: alcoholic and "addict" are medically acceptable, they may be derogatory to some individuals. Say: a person who is substance dependent; or a person who is alcohol dependent.

An individual who has a history of dependence on alcohol and/or drugs and is no longer using alcohol or drugs may identify themselves as "recovering" or as a person in recovery.

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Annex B: NPCC/CPS Nationally Agreed Definitions of Monitored Hate Crime

Hate Motivation

Definition:

  • "Hate crimes and incidents are taken to mean any crime or incident where the perpetrator's hostility or prejudice against an identifiable group of people is a factor in determining who is victimised."

Included subjects:

  • This is a broad and inclusive definition. A victim does not have to be a member of the group. In fact, anyone could be a victim of a hate crime.

Hate Incident

Definition:

  • "Any non-crime incident 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 perceived race", or
  • "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's religion or perceived religion", or
  • "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's sexual orientation or perceived sexual orientation", or
  • "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's disability or perceived disability", or
  • "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender."

Included subjects:

  • Any racial group or ethnic background including countries within the United Kingdom and 'Gypsy and Traveller' groups;
  • Any religious group including those who have no faith;
  • Any person's sexual orientation;
  • Any disability including physical disability, learning disability and mental health;
  • Including people who are Transsexual, transgender, transvestite and those who hold a Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (although it should be kept in mind that holding a GRC is not mandatory and that it is the perceived gender identity or status of the victim that is important, not their actual identity or status).

Hate Crimes

Definition:

  • A Hate Crime 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 perceived race" or
  • "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 religion or perceived religion" or
  • "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 sexual orientation or perceived sexual orientation" or
  • "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 disability or perceived disability" or
  • "Any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender".

Included subjects:

Hate Crime Prosecution

Definition:

  • "A hate crime prosecution is any hate crime which has been charged in the aggravated form or where the prosecutor has assessed that there is sufficient evidence of the hostility element to be put before the court when the offender is sentenced."

Included subjects:

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Annex C: Sources of Further Information

General

Casework Hub contains hate crime pages covering:

  • Disability Hate Crime Checklist and practice lessons
  • MG3 Effective for hate crime
  • Essential guide to sentence uplift
  • Autism Checklist

Prosecution College e-learning material is available:

  • Prosecuting Hate Crime
  • Special Measures (Part 1, 2, 3)
  • Supporting Vulnerable Victims and Witnesses
  • Victim's Code

Mind (mental health charity for England and Wales) have published a mental health 'toolkit' for prosecutors and advocates which can be accessed here:
http://www.mind.org.uk/assets/0000/9950/Prosecutors__toolkit.pdf

The National Autistic Society has published: Autism - a guide for criminal justice professionals, which can be accessed here: http://www.autism.org.uk/working-with/criminal-justice/autism-a-guide-for-criminal-justice-professionals.aspx

The Advocate's Gateway provides practical guidance on vulnerable witnesses and defendants, including a range of toolkits providing good practice guidance when preparing for trial in cases involving a witness or defendant who is vulnerable or with communication needs.

Organisations that support disabled people

Listed below are contact details for some of the organisations that support disabled people and that provide information on disabilities.

Action on Hearing Loss

This is the largest charity providing support, services and advice to deaf and hard of hearing people throughout the UK.
http://www.actiononhearingloss.org.uk

Ann Craft Trust

The Ann Craft Trust works with staff in the statutory, independent and voluntary sectors to protect people with learning disabilities who may be at risk from abuse. The Ann Craft Trust also provides advice and information to parents and carers who may have concerns about someone they are supporting.
www.anncrafttrust.org

DIAL (Disability Information and Advice Line) Network

Dial is a national organisation of a network of approximately 120 local Disability Information and Advice Line services (DIALs) run by and for disabled people, based throughout the UK. DIAL provides information and advice to disabled people and others on all aspects of living with a disability. The DIAL Network is a service that was formed when DIAL UK and Scope merged in 2008.
www.scope.org.uk/dial

Disability Network

The Disability Network is an online Forum for disabled people to share their views and experiences and is dedicated to ensuring that disabled people have immediate access to all relevant information, resources and advice that the web can offer.
www.disabilitynetwork.co.uk

Equality and Human Rights Commission

The Commission have a statutory remit to promote and monitor human rights and to protect, enforce and promote equality across the nine "protected" grounds - age, disability, gender, race, religion and belief, pregnancy and maternity, marriage and civil partnership, sexual orientation and gender reassignment.
www.equalityhumanrights.com

Guide Dogs (formerly Guide Dogs for the Blind Association)

Guide Dogs deliver a world class guide dog service as part of a range of mobility services, and work to break down barriers to ensure blind and partially sighted people can get out and about on their own terms.
www.guidedogs.org.uk

Leonard Cheshire

Leonard Cheshire is the UK's leading provider of disability support services, and campaigns on the rights of disabled people. Services include supported living, care at home, residential care, rehabilitation, resource centres and training and employment programmes.
www.lcdisability.org

Mencap

Mencap is the UK's leading learning disability charity working with people with a learning disability and their families and carers.
www.mencap.org.uk

MIND

MIND works to create a better life for everyone with experience of mental distress by advancing the views, needs and ambitions of people with mental health problems.
www.mind.org.uk

Respond

Respond offers a range of services which provide emotional and psychological support to victims and perpetrators of abuse who have learning disabilities. Respond also provides training and support to professionals and carers.
www.respond.org.uk

RNIB (Royal National Institute for Blind People)

RNIB offers information, support and advice to people with sight problems.
www.rnib.org.uk

United Kingdom's Disabled People's Council (UKDPC)

UKDPC is an umbrella organisation that represents some 80 organisations run and controlled by disabled people to promote full equality and participation within society.
http://www.ukdpc.net/index.asp

Voice UK

Voice UK supports people with learning disabilities and other vulnerable groups who have experienced crime or abuse and offers support to families, carers and professional workers.
www.voiceuk.org.uk

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