Disability Hate Crime
- Introduction
- Disability hate crime - the legislation
- How to take full account of a disability element when we prosecute a case
- Prosecuting case of disability hate Crime
- Information and support for disabled victims and witnesses
- Sentencing
- Annex A - glossary
- Annex B - contact details
Introduction
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 a person who has a disability. However, it should be noted that there is no offence of inciting hatred based on disability, which is in marked contrast to the position when it comes to inciting hatred based on race, religion or sexual orientation. Prosecutors have a duty to ensure that evidence of such hostility is brought to the attention of the sentencing court.
The CPS published a policy statement in 2007 on prosecuting cases of disability hate crime. The policy statement makes clear our commitment to dealing effectively with this type of offending. We want disabled victims and witnesses and their families and communities, as well as the general public, to be confident that the Crown Prosecution Service (CPS) understands the serious nature of this type of crime. We want them to know what they can expect from us. This guidance document gives more detail about some of the key areas of the policy statement to assist prosecutors when they deal with this type of crime.
The policy statement is primarily focussed on how the CPS deals with disability hate crime as defined by section 146 of the Criminal Justice Act 2003. However, it also makes reference to crimes committed against disabled people because of their perceived vulnerability or because they have unequal access to safety (for example, where the defendant is the victim's carer, or in cases of domestic violence), recognising that these people may need support to enable them to give evidence in order to ensure they have equal access to justice. The policy statement also explains how the needs of a disabled victim and a disabled witnesses will be assessed at the earliest opportunity in order to see what measures, including special measures, may be available to support them in court.
The idea of people being targeted as a victim of crime because of their disability is still relatively new. It is not fully understood by the general public and, more surprisingly perhaps, 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. That may be because such behaviour is so widespread as to be considered routine.
However, safety and security, and the right to live free from fear and harassment, are fundamental human rights. Disability hate crime strikes at all disabled people by undermining their sense of safety and security in the community. For this reason disability hate crime should be regarded as particularly serious.
In the policy and in this guidance, crimes which fall within the ambit of section 146 are referred to as disability hate crimes.
The Legislation
Section 146 of the Criminal Justice Act 2003
Section 146 did not create any new offences; it imposed a duty upon courts to increase the sentence for any offence committed in any of the circumstances mentioned in section 146(2):
a. that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on a disability, or presumed disability, of the victim;
or
b. that the offence is motivated, wholly or partly, by hostility towards persons who have a disability or a particular disability.
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 is always difficult to prove and it is likely that section 146 will be more widely used in relation to demonstrations of hostility than in relation to hostile motivation. However, prosecutors should work proactively with the police to identify any evidence that will assist in these types of cases.
As sections 146(2)(a) and (b) mirror sections 28(1)(a) and (b) of the Crime and Disorder Act 1998, which relate to racially and religiously aggravated offences, it is helpful to look at case law in that area to explain the difference between subsections (a) and (b). In RG & LT v DPP [2004] EWHC 183 May LJ said that section 28(1)(a) is: "not so much to indicate the offender's state of mind as to prove what he said so as to demonstrate racial hostility towards the victim. Often the demonstration will be by words or shouting. It may equally be possible to demonstrate racial hostility by means of doing something other than literally by means of words as, for instance, holding up a banner with racially offensive language on it". By contrast, section 28(1)(b) is concerned with the offender's motivation, requiring proof that the substantive offence was wholly or partly motivated by racial hostility. May LJ said that: "motive, in my judgment, is at least capable of being established by evidence relating to what the defendant may have said or done on another or other occasions".
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.
"Disability"
For the purposes of section 146, "disability" means any physical or mental impairment - see section 146 (5).
It should be noted that the Equality Act 2010 and section146 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 section146 issues must be considered in accordance with the definition of disability in section 146(5) of the Criminal Justice Act 2003.
The definition of disability in section 146 includes people living with HIV or AIDS.
"Hostility"
Hostility is not defined in the Act. The ordinary dictionary definition of hostile includes simply being "unfriendly". 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" (DPP v Woods [2002] EWHC 85 or "African bitch" (R v White [2001] EWCA Crim 216).
Proving that there was a "demonstration" of hostility requires 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 of Parry v DPP [2004] EWHC 3112 confirmed that:
- hostility can be demonstrated even if the victim is absent, as long as it occurs in the immediate context of the substantive offence; and
- the word "immediately" qualifies both the words "before" and "after".
Proving that a crime was "motivated" by hostility based on disability may be more difficult in practice. In the absence of a clear statement by the defendant that their actions were motivated by hostility towards the victim based on his or her disability, how can motive be proved? Such a motive cannot be inferred simply from the fact that the victim is a disabled person. In some cases, background evidence can be important, for example, evidence of expression of views against disabled people in the past might be sufficient.
Offences that are motivated by hostility based on disability may not be directed towards a disabled person; for example, the victim may be someone who associates with a disabled person, such as a parent or carer.
Cases where the offender's hostility is also based on other factors
Section 146(4) states that it is immaterial for the purposes of section 146(2) whether or not the offender's hostility is also based, to any extent, on any other factor. This mirrors the law for racially and religiously aggravated offences (s28(3) of the Crime and Disorder Act 1998).
The case law in that area shows that hostility is sometimes based on additional factors and that the courts have sometimes erred in taking these factors into consideration. 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, not the victim, was entitled to park. The Deputy District Judge was not satisfied that the offence was racially aggravated because he believed that what was being demonstrated was hostility towards the victim's conduct in parking in a disabled bay and not towards his membership of a racial group. The Administrative Court said the Deputy District Judge was wrong; the defendant had clearly demonstrated hostility towards the victim based on his membership of a racial group by shouting racial, threatening and abusive words towards him. It was immaterial that the defendant may have had an additional reason for uttering the racial words in question,.
InDPP v M [2004] EWHC 1453 (Admin) the defendant had an argument with the chef in a kebab shop about whether he had paid for his food. He then went outside, shouting "bloody foreigners" and broke the shop window. The magistrates were not satisfied that the offence of criminal damage was racially aggravated, believing that it was possible that the defendant's actions "were the result of annoyance following the dispute over payment for the food or a mindless act of violence". The Administrative Court said that the magistrates had been wrong. Use of the words "bloody foreigners" in this case was capable of amounting to a demonstration of hostility based on racial group or presumed racial group; the fact that is was possible that the defendant's hostility was also based on annoyance over the dispute about payment for food was immaterial.
The reaction of the victim to the demonstration of hostility
It does not matter what the victim thought about the "demonstration of hostility". Again, reference can be made to the case law on racially and religiously aggravated offences.
In DPP v Woods [2002] EWHC 85 (Admin) 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 which were often made in that type of situation, so long as those who made them did not "touch" him. The magistrates were not satisfied that the assault was racially aggravated, stating that they had taken into account "how the victim assaulted perceived the comments" and that "he made no play (at any stage) of the words being racially offensive and said he was not bothered by such comments". They also said that they found the defendant's hostility to be borne out of his frustration and annoyance as a result of his companion being denied entry to the premises. They said that they believed that the defendant's frame of mind was such that he would have abused any person standing in the victim's shoes "by reference to any obvious physical characteristic, had that individual happened to possess one".
The Administrative Court said that the magistrates had been wrong in three ways.
- They were wrong to take into account the victim's perception of the words. The fact that the person to whom the words were directed may have had a personality which enabled him to take a resilient or broad-shouldered view of the situation is irrelevant to the question of whether an offender demonstrates towards the victim hostility based on the victim's membership of a racial group.
- It was immaterial that the defendant had or may have had an additional reason for uttering the words, that is to say, a reason unrelated to race, and in this case his apparent annoyance as a result of his companion being denied entry to the premises.
- The fact that the defendant's frame of mind was such that he would have abused any person standing in the victim's shoes by reference to an obvious physical characteristic was irrelevant. The court said: "if the [defendant] would have assaulted another person and called him, say, "a fat bastard", that would not have been an aggravated offence because Parliament has not found it necessary to provide additional protection to the overweight by the creation of an aggravated form of the offence by reference to that characteristic".
Disability hate crimes and crimes committed against disabled people
It is 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.
Not all crimes committed against disabled people are disability hate crimes. Some crimes are committed because the offender regards the disabled person as being vulnerable and not because the offender dislikes or hates disabled people. For example, in the case of the theft of a wallet from a blind person, if there is no demonstration of hostility based on disability or any evidence that the crime was motivated by hostility based on disability, the offender is simply likely to have been preying on the victim's perceived vulnerability. This will not be a disability hate crime within the definition of section 146.
However, even where s146 does not apply, the vulnerability of a victim due to their disability will make an offence more serious for sentencing purposes: see section 6.
How to take full account of a disability element when we prosecute a case
We must make sure that we identify all those cases that might properly be prosecuted as disability hate crimes. This begins at the point where we are first consulted by the police. The police should record as a 'disability related incident' (sometimes referred to as a 'disablist incident') any incident which falls within the following definition:
"Any incident which is perceived to be based upon prejudice towards or hatred of the victim because of their disability or so perceived by the victim or any other person".
This definition has been developed from the definition of a 'racist incident' which was set out in the February 1999 report of The Stephen Lawrence Inquiry.
For hate crime definition see: Hate Crime: Delivering a Quality Service-Good Practice and Tactical Guidance(ACPO Hate Crime guidance).
It is imperative that police notify prosecutors that a crime has been identified as a disability related incident and also whether the victim(s) or a key witness is disabled, as this informs the way that the prosecutor will handle the case.
Monitoring
All cases referred to us by the police, which have been identified as a disability related incident, should be flagged on COMPASS. Some cases will need more than one flag, for example, cases that also involve domestic violence, rape, or racist, religious or homophobic elements. The 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.
Prosecuting cases of Disability Hate Crime
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.
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.
Where a domestic violence offence or a racist, religious or homophobic crime is committed against a disabled person, or where the disabled person who is the victim of or witness to a crime is a child, reference should be made to our Policy for Prosecuting Cases of Domestic Violence, Racist and Religious Crime-CPS Prosecution Policy, Policy for Prosecuting Cases of Homophobic and Transphobic Crime, Supporting Victims and Witnesses with a Learning Disability and Children and Young People-CPS Policy on Prosecuting Criminal Cases involving Children and Young people as Witnesses as appropriate.
Charging
The Director's Guidance on Charging requires offences classified as Hate Crime or Domestic Violence under CPS Policies to be referred to a Prosecutor for early consultation and charging decision, whether admitted by the suspect or not.
Since section 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 for Crown Prosecutors (the Code). However, if the case passes the evidential stage and it is a case of disability hate crime, the public interest will almost always be in favour of prosecution: see paragraph 4.12(c) of The Code.
As in other cases, we have a duty to inform the victim where the charge is withdrawn,discontinued or substantially altered: see The Code of Practice for Victims of Crime (Victim's Code) (at paragraph 7.4) and The Prosecutors' Pledge.
Bail
See also the CPS Legal Guidance on Bail
Victims of and witnesses to disability hate crime may be afraid of what will happen to them once the matter has been reported to the police and also after a defendant has been charged.
Bail conditions may be appropriate in hate crime cases, for example, to address concerns about interference with witnesses or the commission of further offences. Note that a person may only be released on conditional bail before charge for the purpose of enabling a prosecutor to make a charging decision. Conditional bail before charge is therefore not permitted when a person is bailed pending further investigation.
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 ACPO Hate Crime guidance advises (at paragraph 11.3.7) 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;
- the police view on victim and family safety;
- the likelihood of recurrence;
- the existence of any other orders e.g. ASBOs, 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 Victim's Code (at paragraph 5.17).
Victims and witnesses who withdraw support for the prosecution or indicate that they are no longer willing to give evidence
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 ACPO Hate Crime guidance advises (at paragraph 11.6.2) 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.
Prosecutors should assess whether there is sufficient evidence to proceed without the victim, for example by relying on statements from other witnesses, 999 call recordings, admissions in interview, CCTV evidence, forensic evidence, photographs and officers' statements. If there is sufficient evidence, and provided the public interest test continues to be met, there may not be any reason to consider a witness summons. In any event, 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.
Continuing a case where the victim has withdrawn support
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;
- 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.
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.
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.
Prosecutors should establish the reasons why the victim no longer wishes to give evidence. In cases of disability hate crime, this may be because the victim lives in a place in which they feel isolated or particularly vulnerable. 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 such cases, we must have regard to any special measures or other support available to the victim, at least in part, to overcome their concerns.
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.
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.
Information and support for disabled victims and witnesses
Prosecutors must ensure that the standards of witness and complainant care as set out in the Victim's Code and Prosecutor's 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. Prosecutors should refer to the guidance on the Care and Treatment of Victims and Witnesses.
If there is no Victim Personal Statement (VPS) on the file, prosecutors should ask the police whether the victim has been asked whether he or she wishes to make one. 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.
The defence and the court should be provided with a copy of the VPS prior to the sentencing hearing.
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. Prosecutors should refer to the Legal Guidance chapter 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 (see section 29 of the 1999 Act) and the Legal Guidance on the Intermediary Special Measure.
Special measures meetings
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.
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 victims.
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. The Council for the advancement of Communication with Deaf people (CACDP) is the national examining and registration body for sign language interpreters and details of qualified Sign Language Interpreters and Lipspeakers appear in the CACDP Directory.
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 Times 19 September 2000; 2000 WL 1026990 and R v Governor of Brixton Prison ex parte Saifi [2001] 1 WLR 1134; [2001] 4 All ER 168.
A witness who has a speech impairment may be permitted to write down his or her evidence at court.
For further information see the National Register of Public Service Interpreters, and the Directory published by The Council for the Advancement of Communication with Deaf people (CACDP) at http://www.cacdp.org.uk/interpreters/onlinedirectory/online-directory.html.
Treatment of witnesses in the courtroom
The Prosecutors' Pledge confirms that prosecutors will: "protect victims from unwarranted or irrelevant attacks on their character and may seek the court's intervention where cross examination is considered to be inappropriate or oppressive".
It may sometimes assist prosecutors to refer to the Equal Treatment Bench Book, which can be found at http://www.jsboard.co.uk/etac/etbb/index.htm. The book contains clear guidelines for magistrates and judges about appropriate language and behaviour.
Sentencing
Procedure in cases to which section 146 applies
There is no procedure laid down by which the court is to determine whether or not an offence was aggravated by hostility based on disability. If the defendant is convicted of an offence to which section 146 applies and evidence tending to show that the offence was aggravated by hostility has not been adduced during the trial, the prosecution should seek to establish the aggravating feature in a Newton hearing (see R v Newton (1983) 77 Cr App R 13 CA) following the guilty verdict.
Similarly, where a defendant pleads guilty to the offence but does not accept the aggravating factor under s146 a Newton Hearing may be necessary. See the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise (2009) for the principles to be followed when considering the acceptance of a plea:
If there is admissible evidence of hostility based on disability, it must be put before the court and accepted by the defendant, or found proved, for the court to take it into account in sentencing for the purposes of section146. 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 (1975) 63 Cr App R (S) 29.
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. If it is found proved, section 146(3) will apply and any sentence that the court would have imposed for the 'basic' offence should be increased accordingly.
How does the court decide on the sentence in a case to which section 146 applies?
There is no current sentencing case law on disability hate crimes but the case law on racially aggravated crime provides 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 (Racially Aggravated Offences published on 29 August 2000
http://www.sentencingguidelines.gov.uk/advice/index.html#raciallyaggravated) and largely adopted by the Court in R v Kelly & Donnelly [2001] 2 Cr App R (S) 73 CA:
- a sentencer should first arrive at the appropriate sentence without the element of racial aggravation but including any other aggravating or mitigating factors
- 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
- 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)
- the appropriate amount to be added for the racial element of the offence would depend on all the circumstances of the individual case;
- serious aggravating factors to be taken into account are:
a. planning;
b. a pattern of racist offending;
c. membership of a group promoting racist activities;
d. deliberately setting the victim up for the purposes of humiliation or to be offensive;
e. if the offence took place at the victim's home;
f. if the victim was particularly vulnerable or providing services to the public
g. g.if the timing or location of the offence maximised the harm or distress it caused;
h. if the expressions of racial hostility were repeated or prolonged;
i. if fear and distress throughout a particular community resulted from the offence; and
j. if particular distress was caused to the victim or the victim's family; - less seriously aggravating factors are:
a. if the racist element was limited in scope or duration;
b. if the motivation for the offence was not racial; and
c. if the element of racial hostility or abuse was minor or incidental.
Although guidelines on sentencing disability hate crimes have not been published, the Sentencing Council's 'Definitive Guidelines on Assault Offences'. published in March 2011, apply to all offenders aged 18 and over sentenced on or after 13 June 2011, regardless of date of offence. The Guidelines confirm that, when determining the offence category, the courts shoudl determine the offender's culpability and the harm caused. Statutory aggravating factors which indicate higher culpability include:
- Offence racially or religiously aggravated
- Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)
- Offences motivated by, or demonstrating, hostility to the victim based on the victim's disability (or presumed disability)
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 racial, religious, homophobic or disability-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.
Sentencing in cases to which section 146 does not apply
Prosecutors should always have regard to the guidelines issued by the Sentencing Council in December 2004, Overarching Principles: Seriousness. They state that a court is required to pass a sentence that is commensurate with the seriousness on the offence. The seriousness of an offence is determined by two main factors: the culpability of the offender; and the harm caused or risked being caused by the offence. Culpability will be greater "where an offender targets a vulnerable victim (because of their old age or youth, disability or by virtue of the job they do)" (see paragraph 1.17); factors indicating a more than usually serious degree of harm include the fact that the "victim is particularly vulnerable" (see paragraph 1.23).
Orders made at the time of sentencing
The Prosecutors' Pledge confirms that we will: "on conviction, apply for appropriate orders for compensation, restitution or future protection of the victim".Prosecutors should ensure that the court has all relevant information concerning any order which might be imposed upon conviction.
Restraining Orders
In Protection from Harassment Act 1997 cases, although the court may make a restraining order (under section 5) of its own volition, it is expected that the prosecution will ask for an order where appropriate, and that the contents of the order would be discussed in any pre-sentence report.
- The contents of the order are at the court's discretion, and the court must be satisfied that the conditions are necessary to protect the victim or other person named in the order. However, the prosecutor should be prepared to assist the court with suggested conditions. The order gives protection to the victim, and is not a punishment. The duration of the order should reflect the need for future protection and not the seriousness of the previous conduct. Indefinite orders may be appropriate in many cases, with discharge or variation being considered in due course.
- The contents of section 12 of the Domestic Violence Crime and Victims Act 2004 should also be noted. This section amends section 5 of the Protection from Harassment Act 1997 to make it possible for the court to impose a restraining order upon conviction or acquittal of any offence).
ASBOs
In cases where there has been a pattern of anti-social behaviour causing or likely to cause harassment, alarm or distress, continuing over a period of time and having an adverse effect on neighbours and the community, it will be appropriate to make an application for an antisocial behaviour order (ASBO) upon conviction, under the Anti-Social Behaviour Act 2003. The police should be asked to provide as much information as possible to support the application and a draft order should be prepared for the assistance of the court.
Unduly Lenient Sentences
It is possible that any type of offence may be aggravated by hostility based on disability because any type of offence may involve a disabled victim or witness. It is therefore 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, 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 written application for leave to refer, signed by the Attorney, must be lodged with the Registrar of Criminal Appeals within 28 days of the sentence being passed. The 28 day time limit is absolute so prosecutors must ensure cases are handled expeditiously so that the time limit is met. Prosecutors should refer to the CPS Legal Guidance which clearly sets out the procedure to be followed.
Consideration of a sentence for possible referral as an unduly lenient sentence may arise in one or more of the following ways:
- the CPS may consider whether the sentence merits a reference;
- the CPS may receive a complaint about the sentence from, for example, the victim or the victim's family, a member of the public, a lobby group, or from a police officer;
- the Law Officers may receive a complaint about a sentence;
- the Law Officers may call for the case papers, for example after reading reports of individual cases.
In cases where, following receipt of a complaint, the CPS considers the case and decides not to submit the case to the Law Officers for consideration, it must notify the complainant without delay so that the complainant's option of complaining direct to the Law Officers is preserved and so that the Law Officers will have sufficient time, if a complaint is made, to consider the case.
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.
Downs 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 Downs child/person is unacceptable. Say: a person with Downs syndrome.
Learning disability 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 is 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.
Annex B - Contact details
Listed below are contact details for some of the organisations that support disabled people & 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.
19-23 Featherstone Street
London
EC1Y 8SL
Tel: 020 7296 8000
Fax: 020 7296 8199
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.
Centre for Social Work
University of Nottingham
University Park
Nottingham
NG7 2RD
Telephone: 0115 9515400
Fax: 0115 9515232
www.anncrafttrust.org
DIAL (Disability Information and Advice Line)
Dial is a national organisation of a network of approximately 130 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.
DIAL UK
St Catherine's
Tickhill Road
Doncaster
DN4 8QN
Tel: 01302 310 123
Fax: 01302 310 404
www.dialuk.org.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.
The EHRC Helpline is the first point of contact for all enquiries.
England Helpline: 0845 604 6610
Textphone: 0845 604 6620
Wales Helpline: 0845 604 8810
Textphone: 0845 604 8826
www.cehr.org.uk
Guide Dogs for the Blind Association
Guide Dogs for the Blind Association aims to create a world in which all people who are blind and partially-sighted enjoy the same rights, opportunities and responsibilities as everyone else.
Hillfields
Burghfield Common
Reading
RG7 3YG
Tel: 0118 983 5555
Fax: 0118 983 5433
www.gdba.org.uk
Leonard Cheshire
Leonard Cheshire is the UKs 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.
England Office
Leonard Cheshire Disability
66 South Lambeth Road
London
SW8 1RL
Tel: 0203 242 0200
Fax: 0203 242 0250
Wales Office
Leonard Cheshire Disability Wales
Llanhennock Lodge
Llanhennock
Nr Caerleon
Newport
Gwent
NP18 1LT
Tel: 01633 431309
Mencap
Mencap is the UK's leading learning disability charity working with people with a learning disability and their families and carers.
123 Golden Lane
London
EC1Y 0RT
Phone: 020 7454 0454
Fax: 020 7608 3254
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.
15-19 Broadway
London E15 4BQ
Tel: 020 8519 2122
Fax: 020 8522 1725
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.
3rd Floor
24-32 Stephenson Way
London
NW1 2HD
Tel: 020 7383 0700
Fax: 020 7387 1222
Helpline: 0808 808 0700
www.respond.org.uk
RNIB (Royal National Institute for Blind People)
RNIB offers information, support and advice to people with sight problems.
105 Judd Street
London
WC1H 9NE
RNIB Helpline 0303 123 9999
Tel: 0207 388 1266
Fax: 0207 388 2034
www.rnib.org.uk
United Kingdoms Disabled Peoples 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.
Stratford Advice Arcade
107-109 The Grove, Stratford
London
E15 1HP
Tel : 0208 522 7433
Victim Support
Victim Support is the national charity for people affect by crime. Our volunteers provide free and confidential support to help people deal with their experience whether or not they report the crime. Victim Support also runs the Witness Service and Supportline. The Witness Service helps witnesses, victims and their families before, during and after a trial. Trained volunteers provide emotional support and practical information about court proceedings, a visit to the court, and a quiet place to wait before and during the hearing.
Victim Supportline can give practical help and emotional support in confidence and anonymously: ring 0845 30 30 900.
www.victimsupport.org.uk
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.
Rooms 100-106 Kelvin House
RTC Business Centre
London Road, Derby
DE24 8UP
Tel: 01332 291 042
www.voiceuk.org.uk
