Disability Hate Crime - Guidance on the distinction between vulnerability and hostility in the context of crimes committed against disabled people
- Setting the Standard
- Hostility and Vulnerability
- Common factors in disability hate crime cases
- Common erroneous assumptions in disability hate crime cases
- Identifying Disability
- Prosecuting "minor" offences - the public interest factors
- Section 146 Criminal Justice Act 2003
- Hate Crime Co-ordinators
- Flagging and monitoring
- Annex A: Speech of Sir Ken Macdonald, QC, DPP - October 2008
- Annex B: Section 146 Criminal Justice Act 2003
- Annex C: ACPO/CPS Nationally Agreed Definition Of Hate Crime
- Annex D: Flagging and Monitoring
- Annex E: Considerations
- Annex F: Investigatory Considerations
This additional guidance should be read in conjunction with the CPS Policy for Prosecuting Cases of Disability Hate Crime, the CPS Guidance on Prosecuting Cases of Disability Hate Crime (both of which were published in 2007) and the speech made by the then DPP, Sir Ken MacDonald QC in October 2008 (Annex A).
This guidance deals with crimes committed directly against disabled people, but it should also, where relevant, be read in the context of crimes committed against people who work with or are connected with disabled people.
Not every crime committed against a disabled person is a disability hate crime for the purposes of s.146 Criminal Justice Act 2003, but many more are than are currently being identified by police or prosecutors.
Although the vulnerability of a victim is an aggravating factor leading to enhanced sentences in any event, where there is an extra factor of hostility based on disability, it is important that this is identified and the court invited to apply the provisions of s.146 so that the offence is properly dealt with for what it is - a hate crime.
In October 2008, the former DPP, Sir Ken MacDonald QC gave a speech to the Bar Council in which he set out CPS expectations as to how disability hate crime should be dealt with by prosecutors (see Annex A).
This was against a background of concerns, shared by the then DPP, that prosecutors were setting the threshold too high for disability hate crime (the requirements were for evidence of hostility, not hatred) and that the way in which the label "vulnerable" was being applied to disabled people had the effect that "vulnerability" was becoming
"an innate, unchanging and unchangeable characteristic of disabled people. We are one step away from making the assumption that disabled people should expect to be attacked because of who they are."
"I am on record as saying that it is my sense that disability hate crime is very widespread. I have said that it is my view that at the lower end of the spectrum there is a vast amount not being picked up. I have also expressed the view that the more serious disability hate crimes are not always being prosecuted as they should be. This is a scar on the conscience of criminal justice. And all bodies and all institutions involved in the delivery of justice, including my own, share the responsibility."
The approach set out by Sir Ken MacDonald has been endorsed and further built upon by the present Director, Keir Starmer QC, who, in January 2010, said in a BBC interview
"I think we haven't collectively picked them [disability hate crimes] up and investigated and prosecuted them in the way we should".
In offences of incitement to racial and religious hatred the threshold for prosecution is set deliberately high (hatred) because these offences impact on the right to free speech.
Section 146 Criminal Justice Act 2003 (CJA 03) however, which provides for sentences to be increased for aggravation related to disability or sexual orientation, does not require evidence of hatred, but of hostility. (Annex B). This lower threshold for prosecution is also deliberately set because of the significant impact hate crime (see Annex C) has on the victim and on the community.
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.
In cases involving criminal offences committed against disabled people, hostility is not always explicit and evidenced by the use of clear and crude language. Prosecutors need to examine all the surrounding circumstances to ensure they have a proper understanding of the offence and the context in which it has been committed.
For example, an incident which, on its own, does not appear to be linked to hostility based on disability, may take on a different perspective when it is shown to be part of a pattern of similar incidents involving the offender and/or his associates against a particular disabled person - such as the disabled victim's house being the only one in the road that is repeatedly targeted for criminal damage.
Equally, evidence of previous history of targeting other disabled people or evidence from other witnesses of an offender's prejudicial attitudes, can support a finding that an offence is a disability hate crime.
It is important to remember that, for the purposes of section 146 (2) CJA 03, it is immaterial whether or not 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.
Obviously, not all crimes against disabled people are based on hostility towards their disability. In some cases the fact of a disability may be completely unrelated to the commission of the offence. For example, when the offender is unaware of the victim's disability.
In other cases, the fact of disability may appear to be merely coincidental. For example, when a wheelchair user's cleaner steals from her handbag.
But where a person is targeted to be the victim of an offence because of their disability, prosecutors must consider the issue of hostility.
A disabled person is not vulnerable/easy target per se. It is the particular situation in which they may find themselves and which is then exploited that makes them vulnerable to be targeted for some types of criminal offences.
For example, just because someone is a wheelchair user does not make them vulnerable/easy target to de-fraud. It may however make them an easier option for someone looking to steal a handbag in the street.
It can be simpler, more intuitive, to proceed on the basis of vulnerability but an inappropriate focus on vulnerability risks enhancing an already negative image of disabled people as inherently "weak", "easy targets" and "dependent" requiring society's protection.
Instead, the focus ought to be on enforcing the victim's right to justice and scrutinising the offender's behaviour, prejudices and hostility so that the case is properly investigated and prosecuted for what it is.
Some years ago, in domestic violence cases, the focus was on the victim's behaviour; why did she stay? She could/should just leave. When the dynamics of domestic violence became better and more widely understood by the criminal justice system, the focus shifted to the offender's behaviour, holding him accountable for his actions, and not the victim.
This is the perspective now required in cases involving disabled people. Care is therefore needed both in the analysis of the offence and its context and in the language used by prosecutors.
Other than, for example, in the context of section 16 Youth Justice and Criminal Evidence Act 1999, prosecutors should not generally describe disabled people (as opposed to their situation) as "vulnerable" because this conflates the situation with the person. (See further, below, for a brief explanation of the social model of disability.)
When the nature of a person's disability makes it easier for the offender to commit a particular offence, police and prosecutors often focus on the victim being "vulnerable", an "easy target" and no further thought is given to the issue of hostility. This approach is wrong.
As can be seen from the paragraphs above, these two factors are not mutually exclusive. The vulnerable situation, within which a disabled person may find themselves, can provide the opportunity for an offender to demonstrate their hostility based on disability. Investigation can reveal evidence both of opportunism and hostility.
Where both vulnerability and hostility exist, both should be drawn to the attention of the court.
Targeting a particular person to be the victim of an offence, because they are black or gay or disabled is often, but not always, a clear indication of hostility (unfriendliness, ill-will etc) based on race, sexual orientation or disability. Seeing the particular disabled person as an easy target for a particular criminal offence, does not alter this. The victim is still being targeted specifically because of their disability.
It is almost axiomatic that victims of crime often happen to be the easiest target available to the offender at the time. Offenders do not usually pick hard targets. They tend not to pick the hardest property to burgle or the toughest person to assault. They tend to assess the risk to themselves, of being caught or injured, and select the person who they perceive poses the least risk.
Targeting the smallest or drunkest or least mobile person to assault or rob, does not automatically remove the element of potential hostility, if the principal criterion for selection is the fact that someone is, for example, black or gay or disabled.
Prosecutors must therefore explore fully the surrounding context of an offence committed against a disabled person, so that the true nature of the offence can be put before the court.
There will be cases in which there is no other reasonable explanation, other than that the offender's hostility was based on disability. This is particularly so in cases of abuse, violence or other offensive conduct as these offences tend to carry inbuilt within them the demonstration of hostility. For that hostility to be based on disability is but a short evidential step in many cases.
In other cases the question may be asked: what other explanation can there be? Let the defendant give his explanation and let the court decide.
Courts are entitled to draw a reasonable inference that hostility based on disability was the whole or partial motivating factor.
An overview of disability hate crimes reveals a common trend of extra factors, in addition to the offence itself, such as:
- there have usually been previous incidents;
- opportunistic criminal offences become systematic and regular targeting, either of the individual victim or of their family/friends, or of other disabled people;
- perpetrators are often "friends", carers, acquaintances, neighbours etc.;
- incidents escalate in severity and frequency;
- 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.
It can't be disability hate crime because:
- the offender is the victim's carer;
- the offender is disabled too;
- the offender has assaulted other people and they weren't disabled;
- the victim was just in the wrong place at the wrong time;
- the victim isn't in fact disabled;
- the offender was motivated by drink and anger;
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.
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 or disability.
Apparently minor incidents of mimicry or name calling and harassment on the street or at home may not seem important, but the impact on the disabled victim and on the disabled community can be significant.
Additionally, research from a number of sources consistently shows that incidents of low level criminal behaviour against disabled people tend to increase in severity and frequency unless intercepted at an early stage.
Prosecutors will be familiar with the public interest factors in favour of prosecution, set out in the Code for Crown Prosecutors. These include where the prosecution would have a significant positive impact on the community and where there are grounds for believing that the offence is likely to be continued or repeated.
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.
Prosecutors must keep the applicability of section 146 under constant review. If relevant evidence comes to light after charge, the case should be prosecuted as a disability hate crime, even if such evidence only becomes apparent at a late stage, such as during the court proceedings.
Evidence of hostility based on disability, demonstrated otherwise than "during or immediately before or after the offence" as required by s.146 (2)( a), should be considered by prosecutors in the context of s.146 (2)(b) i.e. as providing evidence of motivation.
In every case where disability is a relevant factor, the reviewing lawyer(s) should fully address:
- how s.146 CJA does or does not apply to the circumstances of the case and give reasons for their decision;
- what, if any, special measures seem appropriate under s.16 or s.17 YJCEA 99 - 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.
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 them self 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.
We should avoid saying:
- "motiveless crime" - if we mean the motive is not known or is not clear to us.
- "there is no evidence" - if we mean there is insufficient evidence.
- "vulnerable victim" - when we mean someone was in a vulnerable situation that was exploited by the offender (as opposed to, for example, the use of the word in the statutory context of s.16 YJCEA 99).
- "bullying" - use of this word 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 crimePeople with learning disabilities or mental health issues are often "befriended" by people who then exploit them. The term "mate crime" is being 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 we believe it introduces further confusion regarding terminology and is potentially confusing to people with learning disabilities.
The phrase 'disabled people' is generally used to reflect the social model of disability. This model (as opposed to the medical model of disability, which focuses on the impairment) recognises that a group of people has been viewed in such a way that their rights and opportunities are limited by society and its choices, rather than any inherent characteristic of them as people. For example, where a library is fully accessible by wheelchair, the user is not "disabled" from using the building or its facilities.
The social model of disability distinguishes between 'impairment' and 'disability'. Impairments are certain functional limitations of the mind, body or senses. Disability is the disadvantage or restriction of activity caused by a society which takes little or no account of people who have impairments, and thus excludes them from mainstream activity.
The implication is that the removal of attitudinal, physical and institutional barriers will improve the lives of disabled people, giving them the same opportunities as others on an equitable basis.
Some people prefer to use the more American phrase "people with disabilities". Currently, CPS tends to use the term "disabled people".
Prosecutors should work closely with their Area Hate Crime Co-ordinators to ensure that the Co-ordinators have an overview of all the disability hate crime cases in their Area, can identify trends, ensure cases are being properly dealt with and, where appropriate, ensure Community Impact Statements are obtained.
In some cases, Co-ordinators may wish to consider initiating a multi-agency case-conference to ensure an holistic approach to safeguarding, sharing of information and enforcement of rights.
For example, community safety partnerships (Local Criminal Justice Boards, Crime and Disorder Reduction Partnerships, Adult Safeguarding or Local Safeguarding Children Boards) neighbourhood police, housing, highways, transport, leisure or education departments of the local authority may need to be informed of the circumstances of an offence, as relevant, so that they can take action to discharge their own duties and put in place preventative or protective measures and sanctions.
Where there is good news, or indeed where there are lessons to be learned, Co-ordinators should draw cases to the attention of CPS local communication managers, EDCEMs, HQ Policy Directorate and EDU and share this information (as appropriate) with local cjs partners and community groups.
Full guidance was issued to Areas 12 December 2008 and further guidance will be issued in March 2010. Annex D of this document provides extracts from the new guidance.
The applicability of s.146 CJA 2003 should be considered in every case in which disability is a factor. As stated earlier in this guidance, both the decision and the reasons for the decision should be recorded. Where s.146 is considered to be relevant, instructions to the court prosecutor should be clearly recorded and a subsequent record made of whether or not s.146 was applied by the court.
Prosecuting disability hate crime
I am on record as saying that it is my sense that disability hate crime is very widespread. I have said that it is my view that at the lower end of the spectrum there is a vast amount not being picked up.
I have also expressed the view that the more serious disability hate crimes are not always being prosecuted as they should be.
This is a scar on the conscience of criminal justice. And all bodies and all institutions involved in the delivery of justice, including my own, share the responsibility.
Of course much good work is going on inside the CPS and elsewhere to develop our response to these ghastly crimes. But we need to build on this work. We need urgently to press forward.
Overview of the speech
I want to explain how the CPS views hate crime. I want to remind us about the purpose of the legislation which targets it. And I want to examine some of the barriers to prosecution that are offered as unique to disability hate crime.
They are not - but that is how they are offered. I will set out the approaches that I believe need to be taken to expose them as false.
Finally, I want to set out our expectations for the way these crimes should be dealt with by prosecutors. And I will explain the steps that we're taking to realise these expectations in the future.
Setting the scene
To begin with I want to tell you a story that has been told to me. This story adds to my belief that we have a very long way to go before we can say that we are even beginning to tackling disability hate crime appropriately.
It's about a man who has been an activist for the rights of people with learning disabilities for 15 years. He has spoken to ministers, MPs, chief executives, and he has spoken to me about the issues affecting people in his situation. He has addressed international conferences and seminars. He travels all over the country to train organisations and meet local disability groups. He has enormous courage.
He is not a 'vulnerable man'. Very far from it. In fact he is known and respected as a leader in the disability rights movement and he's often turned to for advice and guidance.
However, the harassment that he has suffered constantly throughout his life has led him to decide that he will never leave his house after 8 pm. And every time he sees a group of young people on a street corner in his neighbourhood he crosses the road because in his words, 'if I walk passed them something will happen. I will get spat at, or called names'.
Each of these acts, it should be noted, is criminal. But why is this happening to him?
There is a common reaction to this type of story- disbelief. And then a view that he's only targeted because he's seen as a soft touch, an easy target.
People seem to want to believe that there is no hostility towards disability involved in these crimes. He's just an easy victim.
I cannot accept this view. And I know that this is not the view of many disabled people who are targeted every single day.
The man I am talking about doesn't believe this either. He believes that he is targeted, not because he is somehow vulnerable - but because he looks different. As far as he is concerned, the people who do this to him are driven by hostility towards him because he has a learning disability.
This would certainly seem to be very clear from the insults that accompany the objects they throw at him.
I am struck by one commentator's description of public life for many disabled people: 'each entry into the public world will be dominated by stares, by condescension, by pity and by hostility'. [Note: J. Morris Pride Against Prejudice. (Women's Press. London 1991). p. 27. cited in T. Shakespeare 'Cultural representation of disabled people: dustbins for disavowel? In L. Barton and M. Oliver (eds) (Disabilty Studies: Past present and future. (Leeds, The Disability Press, 1997) pp. 217-233. p.224.]
There is also the experience of people with learning difficulties interviewed for Mencap's report Living in Fear in 1999. 'We had stones thrown at our windows and bad eggs. They said people like us should be put down at birth.'
We know from MIND's report, Another Assault, published last year, that people with mental health problems have stuff pushed through their letter boxes. Their houses are pelted with stones and they receive threatening phone calls.
Of course, being targeted in this way, disabled people can feel extremely isolated and fearful of going out. Indeed in some cases, they are even scared to stay at home.
When disabled people report these incidents, they often feel that they're not believed. They are often told that it's unlikely that perpetrators will be found and dealt with. They're advised to take precautions, not to go out. In some cases they're even told to move house.
Of course, quite grotesquely, this reaction turns criminal activity against disabled people into their problem rather than everybody else's. It compounds injustice. It is shameful.
Confusion, fear and lack of safety, all these have a ripple effect in wider communities. Entire groups of people feel victimised and vulnerable to further attack. Indeed, in truth they are. Because the law is failing them and denying them the protection they deserve as equal members of a free society.
In an illuminating sense all this sounds depressingly familiar. We've been here before.
Many of you will be reminded of the days when racist chanting at football matches was ignored. It was 'part of football'. Lads will be lads. You will remember accounts of Asian corner shop owners scrubbing out racist graffiti day after day. We somehow thought they learnt to live with it.
And you will recall gay nightclubs endlessly targeted by 'gay bashers' without redress. To our shame now, it was as if we thought that it was just a part of being gay.
Of course these things still happen and indeed all too often. But no one would support the view that these crimes shouldn't be taken seriously. No one would say that they should be accepted as an everyday occurrence to go unchallenged.
No one would say that racism and homophobia are not seriously aggravating features to be vigorously confronted- and the people responsible brought firmly to justice.
Everybody has heard of Stephen Lawrence. Most people have heard of Jody Dubrowski. And so they should. Things remain far from perfect, there is much still to do, but the centre of gravity has shifted on racist and homophobic crime. We understand it better. There has been a sea change.
This is simply not the case when it comes to disability hate crime. We have not made the shift. We are still making excuses for ourselves.
Indeed I believe we are in the same place prosecuting disability hate crime today, that we were in 10 or 15 years ago prosecuting race hate crime: we are failing the victims of prejudice because we are often refusing to recognise what is staring us in the face.
And it is staring us in the face.
What is hate crime?
But why are these crimes so damaging?
Well one commentator points out that 'hate crime is about the assertion of the offender's own identity and belongingness over and above others - in short it is about power'. [Note: Barbara Perry (2001) In the Name of Hate. New York: Routledge.]
These crimes sustain prejudice and discrimination in our society. They attack all of us. They make our country ugly. People who commit them use violence to keep people in their place - literally.
In the case of the man I described earlier, the effect is to make him stay at home. The streets are no longer his. His own country is foreign to him.
We have hate crime laws because we recognise the particular harm these crimes inflict on whole communities. We recognise that they represent a crude assault on human rights.
Victims suffer on many levels. They lose the fundamental freedom to live their lives they way they want, and to live without fear.
A failure to tackle this not only makes us complicit in the most shocking way. It also disempowers the courts from sentencing appropriately to reflect accurately culpability and harm. This is the urgency of the situation.
The CPS role
Let me say a little bit about our role in the Crown Prosecution Service. The CPS is the principal public prosecuting authority for England and Wales.
Following the transfer of the power to charge criminal offences from the police to us, it is our job to decide charges in all but the most routine cases. In deciding which cases to prosecute we apply the Code for Crown Prosecutors.
The Code is a public document, issued by me, in which I set guidance public prosecutors must follow in every case. The purpose is to promote transparent, consistent and fair decision-making.
It sets out two tests that are applied by prosecutors when considering whether or not to prosecute a case.
The first is the evidential test - there must be sufficient evidence for there to be a realistic prospect of conviction. If this test is not met, the case cannot go ahead, no matter how serious the allegation.
The second test requires us to consider whether the public interest requires a prosecution. Not every criminal act requires a prosecution. However the CPS regards disability hate crime, indeed all hate crime, as particularly serious.
For that reason, where the evidential test is met, there will almost certainly be a prosecution.
There are and always will be many cases where a victim is bitterly upset by our decision that 'their' case can't proceed. But with the two tests of the Code come dual aims. We cannot unrealistically raise the expectations of victims who want to see offenders brought to justice. And we must uphold everyone's right not to be prosecuted without due cause.
So the CPS is independent. We serve the public. We are bound to ensure that the prosecutions we bring are based on robust evidence and are in the public interest.
The CPS approach to hate crime
The CPS has public policies and guidance for prosecutors in the areas of racist and religious crimes, homophobic and transphobic crimes and most recently disability hate crime.
All of our policies are based on the Macpherson definition of hate incidents. Key to this approach is that it is the victim's perception that leads to the identification of hate crime. It is not the police officer's or the lawyer's view that determines how the offence is perceived.
If the victim or any other person perceives the offence to be motivated by hostility based on race, sexual orientation, religion or disability, our policy is that we approach the case on that basis.
We will actively look for any evidence to support it.
The CPS and disability hate crime
Section 146 Criminal Justice Act 2003 provides that where it has been proved that hostility based on a person's disability was demonstrated at the time the offence was committed, or immediately before or afterwards, or proved that the offence was motivated by hostility towards the disability, the court must declare this an aggravating factor at the sentencing stage.
This is a crucial statutory provision.
Following its implementation, we published our Disability Hate Crime Policy and guidance for prosecutors. We developed these with disabled people themselves, and with organisations who work with them. And we took account of everything we were told before drafting and publishing the policy documents.
The idea of developing policy in this way is that we are properly informed. And that we can be judged against what we say we will do. This is particularly important in the area of hate crime.
Recognising disabled people as potential targets of hostility
The work of Voice UK, Disability Now, MIND and other organisations makes clear that disabled people are victims of offences motivated or accompanied by hostility on a daily basis. Their work has shown how widespread the problem is.
So why are we still struggling to bring these offences to justice?
I think the biggest barrier to effective prosecution is a widespread mindset that doesn't perceive disabled people as targets of hostility. Rather, it prefers to see them being taken advantage of for being 'vulnerable'.
It is a common view that where disability is a factor in a case, it's not because disabled people are 'hated'. It's because they are an 'easy target'.
Following this logic, we may be tempted to think: well if a victim's vulnerable that's an aggravating feature in itself, and we're going to get a higher sentence anyway. So let's go for that. Let's not worry about section 146. Let's not worry about hostility and hatred.
I want to make it very clear that prosecutors within the CPS, and all counsel instructed by us, must at all costs avoid this approach. Too often it's a cop out.
Because it means we aren't marking the crime for what it is. We aren't acknowledging its gravity. We are making excuses and we are not protecting the victims of crime.
A mistaken and misplaced focus on vulnerability risks enhancing an already negative image of disabled people as inherently 'weak', 'easy targets' and 'dependent'.
This approach is wrong. It means that the opportunity to condemn the prejudice and hostility of the offender is missed.
Parliament has said that hostility based on disability is a seriously aggravating factor. It must be marked. Failure to charge it where appropriate, or accepting a lesser charge to clear a case, is wrong.
It needs to be charged for what it is because, where it's proved, by law disability crime must be sentenced on that basis.
I believe it's time for us to understand what is obvious: too often the perceived vulnerability of a victim simply presents an opportunity for the offender to manifest his hostility more easily. He can strike out in confidence. He can get away with it.
It makes it easier for him to commit disability hate crime.
Recognising the importance of building a case based on evidence of hostility is not just about semantics. Parliament did not pass this law in some misguided bout of political correctness.
The way that we prosecute sends a message. The messages we send have real consequences. The wrong message damages the confidence of disabled people.
The wrong approach also undermines that fundamental principle of equality before the law that all prosecutors should be spending their working lives trying to uphold.
Section 146 of the Criminal Justice Act 2003 contains a critical message. It says that this behaviour is deeply criminal and has to be punished severely. It says we're going to uphold disabled people's rights as free citizens in a civilised society.
So I want to be clear with you that where there is evidence of hostility, police and prosecutors must ensure that that it is put before the court. It is our duty to give effect to the law that supports the struggle for disabled people to live as full and valued members of society.
Let me be clear. Of course I am not saying that all crimes against disabled people are motivated by hostility towards their disability. There are obviously occasions where disabled people are targeted because of their perceived vulnerability.
The fact is that many disabled people find themselves in vulnerable situations. As the Equality and Human Rights Commission has pointed out, disabled people often have unequal access to safety.
This reality is created by a number of factors including poverty and social exclusion.
And where people are deliberately targeted because of their vulnerable situation, it is our duty to bring the sentencing court's attention to this fact.
However each of us needs to be careful about the language that we use. There is a world of difference between calling a person 'vulnerable' and labelling their situation at the time of the offence as vulnerable.
What do I mean by this? I think a recent report by Disability Now, a specialist magazine, was spot on in this regard. It pointed out that calling a person vulnerable conflates their situation with their identity.
The effect of this is that 'vulnerability' becomes an innate, unchanging and unchangeable characteristic of disabled people. We are one step away from making the assumption that disabled people should expect to be attacked because of who they are.
We know that disabled campaigners and activists have fought for decades, and are still fighting, to shed this label of weakness and vulnerability. We must support them in this.
Because they are doing it to combat the view that a consequence of being targeted is that their freedom should be curtailed.
On the other hand, identifying a situation as vulnerable puts the blame firmly on the perpetrator, the one who exploited this social reality, and is all the more culpable for it.
Finally we need to be clear that the two factors, vulnerability and hostility, are not mutually exclusive.
We can probably all think of cases where the vulnerability of the victim presents an opportunity to an offender.
This does not mean that hostility to disability does not kick in as the criminal conduct is put into effect. And where they are both present, both factors need to be brought to the attention of the court.
Sustained degrading treatment
I have talked about hostility. I have referred to people's experiences. I have explained how I think a focus on vulnerability can cloud our appreciation of how hostility is expressed in disability hate crime.
However this is not the full story.
Some exceptionally grave cases have shown disabled people treated like animals. People subjected to sustained, violent and viciously degrading treatment. Each case looked at in isolation may seem like senseless and unprovoked violence. Simply an episode of unexplained, indeed inexplicable, depravity.
But what is really going on?
It seems to me that when we're examining these cases, we must ask a simple and obvious question:
If the victim were not disabled would they have been subjected to this sort of treatment?
And the violence, the sadism, the persistence- are they really all there simply because the opportunity presented itself? Did the offenders really do all this simply because they could?
And the violence, the sadism, the persistnce - are they really all there simply because the opportunity presented itself? Did the offenders really do all this simply because they could?
Was it really just inexplicable depravity or was there a deeper motivation?
Let's for a moment think about the approach that might be taken if race or sexual orientation were a possible factor in the offence.
The question would automatically be asked, wouldn't it? We would expect it to be. We would be surprised if it were not.
I want to make my expectation clear. When prosecutors are presented with cases like these, they must explore the facts with the question of disability hate crime firmly in their minds.
They must look for evidence and, in appropriate circumstances, they must build cases.
I have used the words 'disability' and 'disabled' throughout my speech so far. Yet do we know what we mean by these words? Let's take alcoholism and drug dependency. Are these conditions you would normally associate with disability?
Disability takes many forms. People can have visual impairments, or hearing impairments. People can be physically disabled in a way that means they need to use a wheelchair or another aid. People can have cognitive impairments such as learning disabilities. Some people have mental or psychological impairments such as depression or schizophrenia.
Many of these disabilities can be masked, or exacerbated by alcoholism and drug dependency. Some people have a combination of disabilities. Some are obvious. Some are quite hidden.
We can probably all think of a local social 'misfit'. The man who people think is strange - the local 'weirdo'. Perhaps he talks to himself. Maybe he shouts at passers by. He might look like he hasn't had a shower for a while.
His behaviour and appearance might make people feel uncomfortable, even threatened. Most people ignore him. A few might try to connect with him, seeing that he is troubled. Others will take the opportunity to violently abuse him.
But we don't need to see medical confirmation of his disability to be put on notice that this person might have one. We don't need further evidence to simply explore the possibility that he was targeted because of it.
I fear that if we are not robust in our approach, the myriad of disabilities that exist and may be present in a case will be hidden from us. As a result, they will be hidden from the court.
Some disabled people trust the criminal justice system enough to disclose their disability. Others will not want to tell us that they are disabled and that they feel they were targeted because of this.
This could be for a variety of reasons. They may have had poor experiences with criminal justice agencies as suspects or defendants. They may have had the experience of not being believed. They may previously suffered the dreadful humiliation of being labelled unreliable the minute they disclosed their disability.
This complexity of disability, coupled with a lack of understanding on our part, can come together to create a serious barrier to justice. We must tackle this. If we don't, people will not have equal access to justice.
We need to recognise that there is potentially a whole group of people who are outside the protection of the criminal justice system. This is not acceptable.
The problem with the language of 'hate'
As prosecutors, we have to ask ourselves if we are setting the threshold too high for disability hate crime. We need to remember that the requirement is for evidence of hostility, not 'hatred'.
In the absence of a precise legal definition of hostility, let us consider dictionary definitions including 'unfriendliness', 'antagonism' and 'meanness'.
In the offences of incitement to racial and religious hatred the bar for prosecution is set deliberately high. This is particularly the case with incitement to religious hatred. And this is right, because these offences impact on the important right to free speech.
But it think there is a danger that the high bar in those cases is somewhat clouding our understanding of what is evidentially necessary to prove other hate crimes.
Let us consider the number of convictions for racially aggravated offences.
Were all of the 6,000 odd racially aggravated offences we successfully took through the courts last year committed by ardent racists or fully signed up members of far right extremist groups? Of course not. The legislation does not require evidence of this sort of fanatical commitment to hatred.
It is simply there to recognise and deal with offenders who evidence hostility towards people based on their identity.
Case law from race hate crime might help in locating the threshold. Recently, by taking a case through the courts, we were able to establish that the phrase 'bloody foreigners' did amount to evidence of hostility for the purposes of proving a racially aggravated offence. [Note: In R v Rogers (2007) 2 W.L.R. 280, the defendant was involved in an altercation with three young Spanish women during the course of which he called them "bloody foreigners" and told them to "go back to your own country". The House of Lords, in upholding the defendant's conviction, held that the definition of a racial group clearly went beyond groups defined by their colour, race, or ethnic origin. It encompassed both nationality (including citizenship) and national origins. The statute intended a broad non-technical approach. Furthermore the victim might be presumed by the offender to be a member of the hated group, even if s/he was not. Also, the fact that the offender's hostility was based on other factors as well as racism or xenophobia was irrelevant.]
What is the equivalent in disability hate crime?
The point is that we don't need to wait for cases in which explicit hostility based on a person's disability has been expressed in clear and crude language. We need to look at all the circumstances. Think about whether disability has been properly identified. Consider the victim's view.
Each apparently minor incident of name calling and harassment on the street seems not overly important. However, taken together a pattern of hostility can be traced. The features of disability hate crime become clear.
Evidence such as a previous history of targeting disabled people, repeat victimisation, evidence from other witnesses of a perpetrator's prejudicial attitudes- all these can support a prosecutor bringing disability hate crime to court.
So build the case.
Further guidance for prosecutors is being developed to address the points that I have talked about this evening.
We are carrying out a review of our handling of disability hate crime throughout the CPS. And we will be bringing all Area leads together to develop awareness and build competence in handling disability hate crime.
We will continue to assess our Areas' performance in these cases on a quarterly basis through our performance review system.
Above all I want prosecutors to hear this message: it is time for us to recognise these crimes for what they are. It is time for us to give the victims of disability hate crime the full protection of our law. This is their absolute entitlement.
And we must equip ourselves with the knowledge and skills that we need.
This means all of us. So counsel instructed by us must familiarise themselves with our Guidance for prosecuting disability hate crime. If they need any clarification, they must seek it from us.
It is time for everyone in criminal justice to start giving proper effect to the will of Parliament.
I am very pleased to see so many people from organisations that support disabled people here this evening to hear what I wanted to say to our criminal justice colleagues.
Some of you have helped us develop policies such as our single equality scheme, disability hate crime policy and our policy for cases involving people with learning disabilities and mental health problems. Others of you sit on our hate crime scrutiny panels.
I am grateful for all your contributions. I know that the conversations we have, and the consultations you take part in, make a real difference. Your involvement means that we can produce informed policies which communicate real understanding.
You have given us the building blocks for positive change.
All of us in the room share the same objectives. We have different roles in achieving these objectives. But our roles are complementary. We are in this together. I cannot overemphasise the importance of partnership and dialogue.
I believe that through working constructively together, we will better deliver justice for victims of disability hate crime.
146 Increase in sentences for aggravation related to disability or sexual orientation
(1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).
(2) Those circumstances are:
(a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on:
(i) the sexual orientation (or presumed sexual orientation) of the victim, or
(ii) a disability (or presumed disability) of the victim, or
(b) that the offence is motivated (wholly or partly) -
(i) by hostility towards persons who are of a particular sexual orientation, or
(ii) by hostility towards persons who have a disability or a particular disability.
(3) The court:
(a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and
(b) must state in open court that the offence was committed in such circumstances.
(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
(5) In this section "disability" means any physical or mental impairment.
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.
- "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."
- Any racial group or ethnic background including countries within the United Kingdom and 'Gypsy & 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 under the Gender Recognition Act 2004.
- 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: As Hate Incident above.
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: As Hate Incident above.
Reviews of cases involving disability should include the following:
- What is the actual or perceived disability involved?
- Previous incidents involving the victim and / or offender?
- Nature and location of previous incidents?
- Escalating in severity and frequency?
- Opportunistic offending becoming systematic and regular targeting?
- Status of offender - "friend", carer, acquaintance, relative, stranger?
- Role of any bystanders?
- Multiple perpetrators condoning and encouraging, taking photos/video-ing?
- Appropriate to charge any of them?
- False accusations of victim being paedophile or "grass"?
- Sustained attack?
- Excessive violence?
- Cruelty, humiliation or degradation involved?
- 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?
- Did the disability facilitate the commission of the offence(s)?
- Was the disability completely co-incidental?
- Community Impact Statements appropriate?
- Views of carer / relatives / others? (as appropriate)
- What evidence is there to suggest this is NOT a s.146 disability hate crime?
- Ensure careful use of vocabulary
- Careful consideration of support and/or special measures
- Further action needed by external partners? Housing / Social Care etc
- Ongoing protection needed e.g. s.12 DVCVA Restraining Order? CRASBO, barring orders, ASBO, housing injunction, eviction, etc?
Examples of issues to be addressed in the Investigation / Pace Interview
MENCAP's report Living In Fear found that of those who had reported incidents, only17% had reported to the police, 79% had told a care worker, family or friend.
In relevant cases therefore, appropriate enquiries should be made of family, carers, social services, housing authorities, school, neighbours, neighbourhood 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.
Often, especially where the victim has learning disabilities or mental health problems, enquiries reveal a history of previous incidents involving, 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 etc.