Advanced Search

Guidance on Prosecuting Cases of Homophobic and Transphobic Crime

Introduction

We must always be on our guard to ensure that the courts are made aware of any element of discrimination that may be present in a particular case. The CPS has a duty to ensure that where aggravating features are present in a case, the correct charge is preferred and the facts relating to motivation are brought to the attention of the sentencing court. Prosecutors must pay particular regard to the provisions of sections 28-32 of the Crime and Disorder Act 1998 (increase in sentences for racial or religious aggravation) and section 146 of the Criminal Justice Act 2003 (CJA) (increase in sentences for aggravation related to disability or sexual orientation).

In the past, incidents against lesbian, gay or bisexual people, or against trans people, have been rarely reported and even more rarely prosecuted. Research studies suggest that victims of, or witnesses to, such incidents have very little confidence in the criminal justice system or those agencies that are part of it. Consequently, incidents of this nature have gone largely unreported because the victim or witness often believes either that they may become the subject of a police investigation themselves or that they will be treated disrespectfully because of their sexual orientation or gender identity.

Because the CPS regards any element of prejudice, discrimination or hate in any type of crime as totally unacceptable, we have issued a public statement on how we will deal with cases involving a homophobic or transphobic element. We regard it as an aggravating factor when considering the public interest.

We have recognised the difference, however, between "incidents" and "crimes". We want to encourage victims of, and witnesses to, homophobic or transphobic incidents to come forward and report the incidents to the police. However, not every incident will amount to a crime; not every incident that is a crime will lead to the perpetrator being found and charged.

Not every case that is brought to our attention will automatically allow us to lead evidence of the homophobic element in it for the purposes of section 146 of the CJA 2003. This could be because it may not be in a form, or of sufficient substance, to allow the court to take it into account when sentencing the defendant.

It is therefore important to ensure that members of the LGBT communities are aware of the distinctions involved between "incidents" and "crimes". In building confidence between the LGBT communities and the CPS, we must be careful not to raise expectations inappropriately about how any perceived homophobic or transphobic incident will be dealt with by the police or by the CPS.

However, any member of the LGBT communities who is involved in an incident that is reported to the police, and in which the CPS becomes involved, is entitled to be treated with respect and dignity. An informed approach founded on these principles will help bring down the barriers that exist and help us to explain, when necessary, why the incident that they believe to be homophobic or transphobic cannot be put in that way to the court. All CPS staff should work to a standard of professionalism which shows clearly that its decisions are not influenced by prejudice, and which shows that the quality of its work is not diminished by ignorance of the circumstances that may affect LGBT people.

Experience has shown that when victims and witnesses are treated in this way, any adverse decision that we have to make is better understood and, whilst the victim may not agree with the decision that we take, he or she believes that we have dealt with the case in which they are involved in a proper and sensitive way.

CPS staff should also bear in mind some people may commit crimes for more than one reason. Crimes may be motivated by homophobia or transphobia and also by a hatred based on a person's race, religion or belief, age, gender or disability. Some homophobic or transphobic crimes may be committed in a domestic setting, including between adults, children and young people. Some homophobic or transphobic crimes may occur in the media in, for example, websites, television broadcasts or song lyrics. Where these issues arise, the relevant CPS policy should be applied in each appropriate case.

Every case will be considered on its merits in accordance with the Code for Crown Prosecutors. Our commitment to the individual examination of each case and to the application of the two stages set out in the Code is unwavering. However, there is much that can be done to ensure that we have all the information available from the police so that the decisions that we take are of the highest possible quality. There is much that we can do to keep the victim of a homophobic or transphobic crime better informed about what is happening in the case. We also have a duty to ensure that those who need to attend court to give evidence are advised about what they can expect and what measures might be available to assist them to give the best quality evidence that they can.

Regular and effective communication with the police is also essential to ensure that there are improvements in interview quality; to prevent drift; to provide more focused feedback; and to ensure that decisions are properly recorded. It may be helpful, from time to time, to review with the police common systems and local inter-agency initiatives.

Top of page

Is there a need for specific guidance on homophobic and Transphobic crime?

Victims and witnesses who are affected by homophobic or transphobic incidents often need special consideration. Prosecutors need to appreciate the consequences of their decisions on the lives of those who have come forward to report a homophobic or transphobic incident. They may have partners and families who are not aware of their sexual orientation or gender identity; being "outed" through the criminal justice process may also cause them to lose their jobs; their homes; their economic stability; and their social standing, notwithstanding legislation that attempts to protect them.

Even in today's society, there are people who regard members of the LGBT communities with hostility and contempt simply because of their sexual orientation or gender identity. Further, LGBT people may be treated differently because some people have religious or other beliefs that cause them to regard LGBT people as immoral or inferior because of their sexual orientation or gender identity.

These are factors that will weigh heavily in the mind of any victim or witness and the CPS has a responsibility to treat their concerns with the utmost seriousness.

However, the CPS can only react to the concerns of the individual victim or witness if those concerns are made known. Accordingly, it is essential that we have procedures in place that allow the victim or witness to voice their concerns, set out exactly what they believe the impact on their lives might be if they need to give evidence, and allow the CPS to explain what is available to support them.

Top of page

Terminology relating to LGBT

Terminology and definitions relating to lesbians, gay men, bisexuals and trans people may sometimes seem confusing and they change over the years. We have set out here and in the glossary (annex A) terms that are in current usage and their meanings.

Sexual orientation is the phrase that is used to describe the disposition of individuals to be physically and/or emotionally attracted to others. A lesbian is a woman who is physically, sexually and/or emotionally attracted to women; a gay man is a man who is physically, sexually and/or emotionally attracted to men; and a bisexual person can be either a man or a woman who is physically, sexually and/or emotionally attracted to both men and women.

Gender identity is the term used to describe the personal sense of being either a man or a woman. It is generally assumed that the gender identity will be consistent with the visible sex characteristics of a person. The gender role (social role) which, to a large extent, is culturally determined is also expected to be consistent with the sex appearance. A few individuals, however, are uncomfortable with both their appearance and their social role.

When this dissonance is experienced profoundly and continuously, the people concerned may "transition" to live full time in the role which accords with their gender identity. Many of them will seek medical treatment to bring the body more in line with the gender identity.

Some people, having made a permanent transition to the new role in which they intend to live for the rest of their lives, will obtain legal recognition in the form of a Gender Recognition Certificate (GRC). The Gender Recognition Act 2004 (GRA) bestows a right to be regarded "for all purposes" as belonging to the social gender to which they have transitioned. Although many in this situation will have had gender confirmation surgery (sometimes still referred to as gender reassignment surgery), this is not an essential criterion for acquiring a GRC.

The people who are described above are still referred to in many texts as transsexual people. They form a small part of a much wider group of people whose gender expression may be very varied, many of whom do not feel any discomfort with their sex characteristics, but who may enjoy cross-dressing occasionally (sometimes referred to as transvestite people). The umbrella term which is usually used to encompass all the varieties of gender expression discussed above is trans people. Many trans people prefer the terms, trans men and trans women.

It should be noted that sexual orientation is not the same issue as gender identity. Trans people, like others in the population generally, may be heterosexual, homosexual, bisexual or, occasionally, asexual.

Collectively, people who are LGBT may be referred to as members of the LGBT communities, but it is important to understand that someone's gender identity and their sexual orientation are two different things, and the issues raised can also be very different.

Being a member of the LGBT communities is just one characteristic of an individual, and that person may face other types and forms of prejudice, discrimination or hate. These may be based, for example, on their gender, ethnicity, nationality, religion or belief, age or disability (perceived or actual). These characteristics can invoke prejudice in some people and it is therefore possible that a single incident may be motivated by a number of discriminatory reasons. Prosecutors must be alert to the case in which there are several types and forms of discrimination and ensure that every element of discrimination is properly addressed.

"Homophobia" and "transphobia" are terms used to describe a dislike of LGBT people or aspects of their perceived lifestyle. In other words, homophobia and transphobia are not restricted to a dislike of individuals; the dislike can be based on any sexual act or characteristic that the person associates with a LGBT person, whether or not any specific LGBT person does that act or has that characteristic. That dislike does not have to be as severe as hatred. It is enough that people do something or abstain from doing something because they do not like LGBT people.

Every victim of, or witness to, a homophobic or transphobic incident must be treated as an individual with individual needs. However, for the purposes of the public statement and for this guidance, the CPS considers that there are certain common issues that we can address in the same way. Accordingly, while recognising and appreciating that each victim and witness is different, we have used the phrases "the LGBT communities" and the words "homophobia" and "transphobia" as referring to all those who fall within our statement and guidance.

The term "victim" is perceived by some as negative. "Survivor" or simply "person affected" is often preferred. However, CPS policy reflects the CPS' role in prosecuting cases involving a homophobic or transphobic element and so the term "victim" of a crime is retained.

Finally, a set of words that is frequently used in the LGBT communities that members of the CPS may hear or read about is "out", "outing" or "being outed". The word "out" refers to the extent to which a member of the LGBT communities is known as being lesbian, gay, bisexual or a trans person by others. Many LGBT people may be out to certain groups of people, such as their friends, but not out to other groups, such as their families or their work colleagues. Even then, many LGBT people may be out to only some people within each group of people, so, for example, only some members of their family or only some friends and work colleagues may know that they are LGBT. CPS staff should be careful not to make assumptions about this issue and avoid any possibility that they out a victim or witness on the mistaken assumption that the person to whom they are talking is aware that the victim or witness is LGBT.

Outing occurs when a person's sexual orientation or gender identity is made known or more widely known to others than the person wishes it to be known. Being outed is the term given to the process by which this occurs.

One of the consequences for LGBT people of reporting a homophobic or transphobic incident or supporting a prosecution by giving evidence in court is that they may have to answer questions about their sexual orientation or gender identity. In this way, a person may effectively be outed.

Being outed can be a matter of serious concern to LGBT people. CPS staff must be very sensitive to the worries that LGBT people may have about the possible consequences for them and often for their families, and for the way in which they conduct their lives if knowledge of their sexual orientation or gender identity becomes known or more widely known than the person wishes. CPS staff should also be aware that section 22 of the GRA 2004 restricts the circumstances in which information about a person's gender history may be disclosed.

Top of page

Appropriate language

In all dealings with cases involving a homophobic or transphobic element - whether on paper or at court - it is essential that prosecutors adopt a style of address or reference that demonstrates respect for the victim's, witness' or defendant's sexual orientation, gender identity and lifestyle. When dealing with members of the LGBT communities, prosecutors should avoid making stereotypical assumptions, either about the way in which they lead their lives or about how they wish to be addressed.

All CPS staff should avoid any derogatory words, gestures or actions that could be taken as offensive and should take steps to advise any colleagues who adopt such behaviour that they should stop. Members of the LGBT communities who become victims of homophobic or transphobic incidents should not have to be victimised a second time by the way in which those who work in the criminal justice system treat them - either to their face or behind their back.

Members of the LGBT communities have every right to be treated with dignity and respect by CPS staff - as have every other victim and witness with whom we deal. The decisions that we take may have a material effect on the lives of the victims of and witnesses to crime and it is important that we recognise the sensitivities of victims and witnesses.

If you are in any doubt about how to refer to the sexual orientation or gender of the victim or witness, ask the person concerned how they wish to be addressed and find out the language with which they feel comfortable about having their sexual orientation or gender discussed. All CPS staff should remember that there may be terms or expressions that a member of the LGBT communities might be content to use but which are inappropriate for CPS staff to use without the person's consent. So, just because you hear members of the LGBT communities refer to themselves in a certain way, do not assume that it is appropriate for you to use the same terms or expressions. Always ask.

Similarly, all CPS staff have a responsibility to ensure that those who prosecute cases on our behalf - agents and counsel - are familiar with these issues. Accordingly, CPS staff will want to ensure that there are paragraphs in counsel's instructions and those that go to agents which outline the way in which the CPS expects members of the LGBT communities who are victims of crime or who appear as witnesses to support the prosecution's case to be treated and addressed. The CPS Instructions for Prosecuting Advocates sets out the standards expected of agents and counsel when prosecuting homophobic offences. Agents and counsel are expected to follow the same standards when prosecuting cases of transphobic crime.

These levels of courtesy extend into the courtroom itself and CPS staff should do all that they can to ensure that others involved in the case, from the judge or magistrate to opposing advocate and other witnesses, treat the victim or witness with the dignity that they deserve and that they are addressed in appropriate terms.

Top of page

How to make sure that we take full account of a homophobic or transphobic element when we prosecute a case

The CPS definition of a homophobic or a transphobic incident is:

"Any incident which is perceived to be homophobic or transphobic by the victim or by any other person."

This definition is simple and easy to use. It is based on the Stephen Lawrence Inquiry definition of a racial incident and is broad. It is also the definition used by the Association of Chief Police Officers (ACPO) in their tactical guidance manual. In the way that the definition has been constructed, it is inherent that the incident will be motivated by homophobia or transphobia, that is a dislike of LGBT people. The perception that the incident is based in homophobia or transphobia can come from the defendant.

It is important to recognise that the definition adopted allows a person other than the victim to categorise the incident as homophobic or transphobic. This is deliberate. Notwithstanding the nature of the incident, there may be victims who do not categorise themselves as members of the LGBT communities and who therefore conclude that they have not been involved in a homophobic or transphobic incident.

A person who has sex with a person of the same sex may not see himself or herself as an LGBT person. There may be a number of reasons for this: social pressures; domestic responsibilities; economic pressures; language and culture; or a simple unwillingness to regard themselves as part of the communities when they engage in homosexual or trans behaviour on a part-time basis. Whatever the reason, it is important from the CPS' point of view that incidents in which such people are involved are still within the definition.

The word "incident" has been used deliberately. Apart from the distinction between "incident" and "crime" which is referred to above, examples of homophobic or transphobic incidents go beyond the typical examples that may immediately come to mind, such as physical assaults, sexual abuse or public disorder. Homophobia or transphobia may lie behind crimes of criminal damage; arson; blackmail; robbery; theft; burglary; and indeed almost any other crime. Prosecutors need to be alert to the possibility that these crimes may be based on homophobia or transphobia and they should ask the police to enquire further into this possibility, if they have any suspicions that this might be the case.

All cases referred to us by the police, which have been identified as a homophobic or transphobic related incident, should be flagged on our computerised case management system COMPASS. Some cases will need more than one flag, for example, cases that also involve domestic violence, rape or racist element. 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 handling these types of crime.

Top of page

Prosecuting cases of homophobic and transphobic hate crime

Identifying a case as a homophobic or transphobic incident means that someone at some stage has perceived the incident that has given rise to the charge as being aggravated by hostility based on a victim's sexual orientation or gender identity. It means that section 146 CJA 2003 may be relevant and that efforts should be made to prove whether it is or not. Prosecutors should be vigilant to make sure that at every review they consider the possibility of a case being a homophobic or transphobic crime.

Prosecutors will want to be satisfied that police enquiries in such cases have been thorough and that all possible witnesses have been interviewed. Often, witnesses to homophobic or transphobic crime may be reluctant to come forward because their own position may then become vulnerable to enquiry. Sometimes, the police may not pursue such witnesses because they believe that the case will never be strong enough to go to court.

Prosecutors should liaise directly with the senior police officer in the case to ensure that all evidence has been obtained and forwarded to the reviewing lawyer for decision.

There may be cases where the prosecutor is satisfied that there is a homophobic or transphobic element that is capable of being mentioned in court, but where the victim or witness does not want the prosecutor to refer to it for whatever reason. Such cases need to be considered very carefully, particularly where there are other witnesses who do not share the same view. The final decision is that of the prosecutor. However, the views of the victim in such cases will be important in the decision-making process about whether to refer to the element of homophobia or transphobia in court. The Victim Personal Statement may be of assistance to prosecutors in establishing the wishes of the victim. There is, of course, nothing to prevent the case from continuing in court on the appropriate charge without referring to the homophobic or transphobic element.

We always aim to build the strongest possible cases to put before the court. 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 that they intend to so advise the court for sentencing purposes.

The Director's Guidance on Charging requires offences involving homophobic or transphobic aggravation to be referred to a Crown Prosecutor for early consultation and charging decision.

We review cases referred to us by the police in accordance with the Code for Crown Prosecutors. We make charging decisions in accordance with the Full Code Test, other than in the limited circumstances where the Threshold Test applies.

The first stage of the Full Code Test is consideration of the evidence. We must be satisfied that there is sufficient evidence to provide a "realistic prospect of conviction" against each defendant on each charge. This means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. If a case does not pass the evidential stage, it must not go ahead no matter how important or serious it may be. There is no relaxation in the sufficiency of evidence stage just because the case involves a homophobic or transphobic element.

If the case does pass the evidential stage, we must then decide whether a prosecution is needed in the public interest. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour.

If the case passes the evidential stage and it is a case of homophobic or transphobic crime, the public interest will almost always be in favour of prosecution. The Code for Crown Prosecutors at paragraph 4.12c gives the following example of a public interest factor in favour of prosecution:

"... the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religious belief, sexual orientation, or gender identity or the suspect demonstrated hostility towards the victim based on any of those characteristics. The presence of any such motivation or hostility will mean that it is more likely that prosecution is required."

The charges that we decide to pursue in any prosecution should always reflect the seriousness of what took place; any element of pre-meditation or persistence in the defendant's behaviour; the provable intent of the defendant; and the severity of any injury suffered by the victim. Reference should be made to any relevant Charging Standard. The charges must enable us to present the case clearly and simply and they must give the court the power to impose an appropriate sentence.

The views of the victim in determining the public interest

In cases with a homophobic or transphobic element - as in all cases - the reviewing prosecutor must apply the Code for Crown Prosecutors with regard to the determination of the public interest.

The Code for Crown Prosecutors (paragraph 4.12c) requires prosecutors, when considering the public interest to take into account any views expressed by the victim regarding the impact that the offence has had. In appropriate cases this may include the victim's family.

Because of the particular concerns of some members of the LGBT communities concerning the effect that reporting an incident and supporting a prosecution may have on their lives, it is essential that the reviewing prosecutor has sufficient background information about the offence, the victim and any other witnesses to make an informed decision about where the public interest lies in continuing with the case.

Top of page

Major and minor offending - homophobic and transphobic

The way in which members of the LGBT communities have historically been treated by individuals within the criminal justice agencies has contributed to a reluctance by members of those communities to come forward to report any homophobic or transphobic incident to the police or then to continue to support any prosecution, if the incident is a crime, by giving evidence at court.

That reluctance, borne out of historical experience, can often centre on the concerns that the LGBT person has about the way in which their conduct will be regarded by the police and the CPS. The victim of, or a witness to, a homophobic or transphobic incident may believe that they will become the subject of a police investigation and then a CPS prosecution because of where they were when the incident occurred; because of whom they were with; or because of what they were doing at the time.

The general position of the CPS is that it is more important to prosecute the perpetrator of a more serious crime than someone who may have committed a more minor crime where the former is connected to the latter. For example, it is more important to secure sufficient evidence to prosecute a defendant for a serious wounding than it is to prosecute a person for engaging in sexual activity in a public lavatory, if that second prosecution means that the first will not go ahead.

Accordingly, the CPS has made a public commitment that it will deal with the more serious offending even when that means that the minor offending is not prosecuted.

The position is, however, relative. If a person commits an act of, for example, engaging in sexual activity in a public lavatory and is reported for that act, without that person becoming the victim of, or witness to, a more serious crime themselves, that person should be dealt with in the usual way. The CPS' position is not a commitment to allow people to commit crime with impunity; it is an undertaking to prosecute serious crime effectively wherever it can, even if that means that those who commit minor criminal acts are not put before the courts in that particular case.

This position is not unique to homophobic or transphobic crime; the CPS often has to consider how to deal with (sometimes unrelated) acts of minor offending by victims of, or witnesses to, more major offending. There will be occasions where the minor offending is unrelated to the major offending, for example, where a person engaging in sexual activity in a public lavatory witnesses an attack by one person upon another person. Sometimes, the answer is to prosecute the more minor offending first and then deal with the major crime; on other occasions, it is right to disregard the minor offending as the public interest requires the effective prosecution of the person accused of the more serious crime. It is the latter approach that the public statement emphasises as the way forward in dealing with minor offending when a more serious offence is committed.

Top of page

Possible defences

In addition to the usual array of defences with which prosecutors will be familiar, there are two specific defences which are sometimes raised in response to charges of assault in this context: self-defence and provocation.

By necessity, the prosecutor will need to adopt a different approach depending on whether the charge is one of an assault or one of murder, but in respect of both types of charge, there are common issues that the prosecutor is likely to face.

It will often be the case that there is no independent witness to what occurred. Prosecutors will sometimes be faced with a defence based on the suggestion that the defendant committed the assault because the victim or some other person made a sexual approach to them that so angered them or made them so frightened that they assaulted the individual concerned. Sometimes, it may be suggested that this sequence of events allows a defence of self-defence to be raised; on other occasions, it will simply be raised as a reasonable explanation for what the defendant did.

Top of page

Victims who withdraw support for the prosecution or indicate they are no longer willing to give evidence

Many homophobic or transphobic incidents go unreported because the victim makes an immediate decision not to involve the police. There is little that we can do to prevent this from happening, although by building links with the LGBT communities and by using those links to help the communities to have greater confidence in us, more victims from the LGBT communities may be willing to come forward and report crimes to the police. Each police force has an LGBT liaison officer and every CPS Area has a Hate Crime Co-ordinator; both have a role to play in building these links.

However, there will also be cases in which the victim or a witness has reported the incident to the police and where the defendant has been charged, but where the victim or witness then has doubts about continuing to support the prosecution process.

When, after reporting a crime, a victim withdraws support for a prosecution or indicates an unwillingness to give evidence, the CPS must:

  • ensure that an experienced prosecutor supervises the case;
  • 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;
  • ask the police to give their views and, where appropriate, take advice from the police's LGBT liaison officer and/or the CPS Hate Crime Coordinator and others with a legitimate interest.

As a result of receiving the withdrawal statement and accompanying police report, prosecutors may need to consider whether any further charge, for example witness intimidation, is appropriate. The prosecutor should liaise closely with the Witness Care Officer to establish what support has been provided to the victim and to establish whether it would be appropriate to offer the victim the services of a specialist support agency if this has not already been done.

In cases of homophobic or transphobic hate crime, it may be that the victim or witness is fearful of the consequences of their sexual orientation or gender identity becoming known or more widely known than they wish it to be. In such cases, it will be appropriate for the prosecutor to consider whether there are any measures available to the prosecution or to the court that might help the victim or witness overcome their concerns.

Prosecutors will need to be careful, however, to draw a distinction between measures that go to protect the identity of the victim or witness and measures that exist simply to avoid the victim or witness having to give evidence in court. In the latter instance, the name of the victim or witness will still be given in open court if it is decided that their statement can be read to the court and therefore details of the victim or witness will enter the public domain. However, unless it is required for evidential purposes, the address of a victim or witness should not be disclosed in open court or disclosed to the defendant.

Prosecutors should also assess at an early stage 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, scientific evidence, photographs and officers' statements. If there is sufficient evidence, and provided the public interest stage of the Code test continues to be met, there may not be any reason to consider a witness summons if the victim subsequently withdraws support. 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.

Top of page

Continuing a case where the victim indicates a withdrawal of support in homophobic or transphobic cases

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

  • proceeding without using the victim's evidence;
  • making a hearsay application under section 116 of the Criminal Justice Act 2003;
  • compelling the victim to give evidence; or
  • discontinuing as a result of the victim withdrawing support for the prosecution.

Where we are considering proceeding against the victim's wishes, we must consider all parties' human rights issues and endorse fully and clearly the decision-making process on the file.

In addition to the evidence of the nature and seriousness of the offence, background information is crucial in helping 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;
  • if there is an ongoing relationship, the history of the relationship and any previous incidents;
  • the likelihood 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 seek to establish clearly the reasons why the victim no longer wishes to give evidence. In some cases, 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. We must have regard to any special measures or other support available to the victim that may help them, at least in part, to overcome their concerns.

Before taking a decision to issue a summons to require the victim to give evidence, 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 on the safety of the victim and the likelihood of further harm; and
  • whether or not the victim is being supported by any specialist agency outside the Criminal Justice System (CJS).

If an experienced prosecutor has considered whether it is possible to proceed without the victim, and decided that it is possible 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.

Top of page

Particular issues that affect trans people

The law with regard to sexual assaults on or by trans people was changed by the implementation of the Sexual Offences Act 2003. Section 1(1) of the Act states that an offence of rape is committed if:

"A person (A) - intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, B does not consent to the penetration, and A does not reasonably believe that B consents."

References in the Act to "penis", "vagina" and other parts of the body also include references to a part surgically constructed, in particular, through gender confirmation (otherwise known as reassignment) surgery. It follows, therefore, that the law now recognises that vaginal rape can be committed against a trans woman (male to female) who has had such surgery. A trans woman who has not had gender confirmation surgery may be capable of the act of rape.

Many trans men (males who are born as females) still have a vagina, whether or not a penis is constructed so, in these cases, where there is forcible penile penetration of a trans man's vagina, rape is again the appropriate charge.

The general principle to be applied is that the appropriate charge is the one which properly reflects the practical act complained of by the victim. It is irrelevant for the purposes of charge selection whether any relevant part of the victim's anatomy is biological or surgically constructed.

The Sexual Offences Act 2003 creates four offences:

  • assault by penetration (section 2);
  • assault of a child under 13 by penetration (section 6);
  • sexual assault (section 3);
  • sexual assault of a child under 13 (section 7).

Non-consensual offences of assault by penetration and sexual assault are no longer gender specific if the act complained of occurred after 1 May 2004.

An issue of concern to trans people is the name by which they will be addressed. Whether the trans person is a victim, witness or defendant, the CPS' policy is that the person will be addressed in terms that reflect his or her present gender status. So, a trans woman, although having a birth certificate that shows her to have been born a male, should be addressed and charged and/or indicted, if appropriate, as a woman.

There may be instances where it is necessary to refer to the previous convictions of a trans person when those convictions may appear under the trans person's birth gender and name. Wherever possible, those convictions should be referred to neutrally and without reference to the different name under which they are listed as convictions. This is no different from current practice where people who have aliases simply have their convictions read out under the name in which they are charged without reference to the fact that the convictions were acquired under a different name.

The Gender Recognition Act 2004 confers a right of privacy to a trans person who has applied for a Gender Recognition Certificate (GRC). Section 22 of the Act makes it a criminal offence to disclose protected information (that is, information relating to a person's application for, or possession of, a GRC) if this knowledge is obtained in an official capacity, for example, as a member of the civil service or a constable. However, there are specific exceptions allowing disclosure of this information, for instance: where the disclosure is for the purpose of instituting court proceedings; where the disclosure is in accordance with an order of the court; or where it is for the purposes of preventing or investigating a crime. On occasions, it may be necessary to mention in court the fact that a person is a trans person. However, the established practice of the courts is that, where disclosure of birth gender is not essential, it should be omitted; it should be possible in such cases to accept the person's apparent identity for nearly all court purposes.

If it is relevant to any alleged offence that the person has a trans history, for instance, where the alleged victim believes that transphobia was a component of the crime under investigation, that information must be disclosed. Any more detailed information regarding whether a person has or has not had gender confirmation surgery is unlikely to be relevant unless there are allegations of a specifically sexual nature. Under these circumstances, prosecutors should bear in mind that the victim will be entitled to anonymity in the media under the Sexual Offences Act 2003.

Top of page

Continuous review

Prosecutors are required to keep all cases under continuous review. But in many cases involving a member of the LGBT communities as a victim or witness, there is a particular need to be kept informed of their current view regarding the continuation of the prosecution, especially if that person's evidence is crucial.

Where a case is to be heard in the Crown Court and counsel are to be instructed, selection should focus on suitable experienced counsel who are prepared to play their part in witness care and who understand fully the issues and sensitivities surrounding LGBT issues. The Bar's Code of Conduct imposes a strict requirement on counsel not to make statements or ask questions which are intended only to insult or annoy a witness or some other person; this will be as applicable to victims or witnesses of homophobic or transphobic crime as to any other victims or witnesses. The CPS Instructions for Prosecuting Advocates clearly set out the standards expected of advocates when prosecuting cases with a homophobic or transphobic element. These include: using appropriate language; challenging inappropriate or prejudicial language; and challenging material which is unnecessary in itself and which may arouse homophobic or transphobic prejudice in the court or amongst the jury.

Top of page

Direct Communication with Victims

Prosecutors should note that there may be additional sensitivities when contacting members of the LGBT communities: for example, the individual(s) concerned may not be out to their family, relatives or friends. In addition, the person affected may be in a heterosexual relationship.

Care should be taken to ensure that any telephone call or correspondence is carried out with the person(s) concerned. Talking the issues through with the police, an experienced lawyer, the CPS Area Hate Crime Co-ordinator and/or contacting the CPS LGBT Network could provide useful information about how best to approach victims in these instances.

Top of page

Sentencing

Procedure in cases to which section 146 CJA 2003 applies

There is no procedure laid down by which the court is to determine whether or not an offence is aggravated by hostility based on a victim's sexual orientation (or presumed sexual orientation). If the defendant pleads guilty or is found guilty 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 after the verdict has been returned. See legal guidance on Newton Hearings for the procedure to be followed.

Section 65 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends section 146 Criminal Justice Act 2003 (increase in sentence for aggravation related to disability or sexual orientation) to include 'transgender' identity.

Section 65(9) adds both 'disability' (as was previously omitted) and 'transgender' to the aggravation encountered. This means that murder offences aggravated by transgender identity or disability will now attract a 30 year starting point rather than the previous starting point of 15 years.

If there is admissible evidence of hostility based on sexual orientation, 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 section 146. Case law on racially aggravated offences confirms that the judge should not draw an inference that the offence was so aggravated and pass sentence on that basis without putting the defendant on notice and allowing him to challenge the inference: see, for example, R v Lester 63 Cr App R (S) 29A.

After hearing the evidence of hostility based on sexual orientation, the court should announce whether that 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 homophobic or transphobic crimes but again it is appropriate to look at the case law on racially aggravated crime for guidance. How a court should decide the appropriate increase in sentence for racial aggravation was addressed by the Sentencing Advisory Panel in its advice to the Court of Appeal in 2000 and largely adopted by the Court in R v Kelly & Donnelly (2001) 2 Cr App R (S) 73 CA. The judgment advises that a sentencer should determine the appropriate sentence without the element of racial aggravation and then make an addition to the sentence to take account of that aggravation. The extent to which the sentence should be enhanced will depend on the seriousness of the offence and the judgment gives guidance on how to assess this. It was recommended that:

  1. the sentencing judge should first arrive at the appropriate sentence without the element of racial aggravation but including any other aggravating or mitigating factors;
  2. the sentence should then be enhanced to take account of the racial aggravation, increasing the sentence by an appropriate amount to reflect the degree of racial aggravation;
  3. the sentencing judge should state what the appropriate sentence would have been for the offence without the racial aggravation so that the sentence for the racial element of the offence can be clearly seen. That would lead to transparency in sentencing which would benefit both the public and the Court of Appeal (it should be noted that this process is particularly important in cases in which there is subsequently an argument about whether the sentence is unduly lenient);
  4. the appropriate amount to be added for the racial element of the offence would depend on all the circumstances of the individual case;
  5. serious aggravating factors to be taken into account are:
  1. planning;
  2. a pattern of racist offending;
  3. membership of a group promoting racist activities;
  4. the deliberate setting up of the victim for the purposes of humiliating him or her or being offensive towards him or her;
  5. if the offence took place at the victim's home;
  6. if the victim was particularly vulnerable or providing services to the public;
  7. if the timing or location of the offence maximised the harm or distress it caused;
  8. if the expressions of racial hostility were repeated or prolonged;
  9. if fear and distress throughout a particular community resulted from the offence; and
  10. if particular distress was caused to the victim or the victim's family;

It can be seen that factors a-d relate to the offender's intention and factors e-j relate to the impact on the victim or others;

  1. less seriously aggravating factors are:
    • if the racist element was limited in scope or duration;
    • if the motivation for the offence was not racial; and
    • if the element of racial hostility or abuse was minor or incidental.

Sentencing in cases to which section 146 does not apply

Prosecutors should always have regard to the guidelines issued by the Sentencing Guidelines 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).

Top of page

Monitoring cases with a homophobic or transphobic element

The CPS has committed itself to monitoring the impact of its public statement on cases with a homophobic or transphobic element. Since April 2005, as part of the Area Performance Review system, the CPS has been required to record all cases of homophobic and transphobic crime11 on COMPASS CMS and submit quarterly returns on performance.

Locally, however, senior management teams must ensure that they have set up systems which identify cases which fall within the public policy statement and are able to demonstrate that they have implemented the policy in all key regards, such as the referral to a senior prosecutor if the victim or witness no longer wishes to give evidence post-charge but pre-trial.

Maintaining local information about the number of cases that are dealt with under this policy and what happens in those cases will do much to reduce the level of concern that some members of the LGBT communities have about the prosecution process, and it will go some way to building up levels of trust between the communities and the CPS.

[COMPASS CMS includes a Homophobic Crime flag. CPS Areas have been advised to record cases of transphobic crime under this flag until such time as a transphobic crime flag can be added to CMS.]

Top of page

Glossary of terms used relating to homophobic and transphobic issues

Terminology and definitions relating to lesbians, gay men, bisexuals and trans people may sometime seem confusing and they change over the years. We have set out in this glossary some terms that are in current usage and their meanings when this public statement was published in 2007.

Bisexual

A man or woman who is physically, sexually and/or emotionally attracted to people of either sex.

Code for Crown Prosecutors

The public guidance that sets out how Crown Prosecutors take their case-work decisions and the factors that they should consider when doing so.

Cottaging

The process in which usually men seek men and/or have sex in a public place, usually in a public toilet.

Cruising

The process in which lesbians, gay men or bisexuals look for sex with other people, often in parks.

Gay

A man or a woman who is physically, sexually and/or emotionally attracted to people of the same sex. (Some gay men prefer to be called gay rather than queer or homosexual).

Gender Identity

A person's sense of him, or herself, as being male or female.

Heterosexual

A man or a woman who is physically, sexually and/or emotionally attracted to people of the opposite sex.

Homophobic

A fear of or a dislike directed towards lesbian, gay or bisexual people, or a fear of or dislike directed towards their perceived lifestyle, culture or characteristics, whether or not any specific LG or B person has that lifestyle or characteristic. The dislike does not have to be as severe as hatred. It is enough that people do something or abstain from doing something because they do not like lesbian, gay or bisexual people.

Homosexual

A man or woman who is physically, sexually and/or emotionally attracted to people of the same sex.

Lesbian

A woman who is physically, sexually and/or emotionally attracted to women. (Some lesbians prefer to be called lesbian rather than gay, queer or homosexual.)

Out

The term used by lesbian women, gay men, bisexuals and trans people to describe their experience of self-discovery, self-acceptance, openness and honesty about their sexual orientation or gender identity and their decision to share this with others when and how they choose.

Outed

The outcome of someone giving information about a person being LGB or T without that person's permission.

People who have sex with a person of the same sex

There are many men and women who sometimes have sex with people of their own sex but who do not see that that activity means that they are LG or B. In other words, the activity does not define their identity. This may include some married men and women; some people who are from the black
and minority ethnic communities; and some people who live in faith communities.

Serious sexual offences

Those offences set out in section 139 and Schedule 6 of the Sexual Offences Act 2003 in respect of which the media are prevented from naming or otherwise identifying the victim.

Sexual orientation

A term used to describe a person's emotional and/or physical attraction to another.

Trans people

A person who was assigned one gender at birth but who identifies elsewhere on the gender spectrum for some, part or all of the time. Some people have medication and/or surgery(ies) to alter their bodies so they will fit with their personal identity and sense of self. However, surgery should not be used as a marker for trans identification. Trans is an umbrella term which includes transsexual, transvestite (cross dressers) and transgender people, amongst others. In practice, the range of people who fall under this umbrella term is extremely diverse.

Transphobic

A fear of or a dislike directed towards trans people, or a fear of or dislike directed towards their perceived lifestyle, culture or characteristics, whether or not any specific trans person has that lifestyle or characteristic. The dislike does not have to be as severe as hatred. It is enough that people do something or abstain from doing something because they do not like trans people.

Top of page