Advanced Search

CPS Public Consultations

We want to hear your views about our prosecution policy and so we conduct consultations to help inform our policy making.

Visit the consultations page to view the current and previous consultations

Racist and Religious Crime - CPS Guidance

Introduction

This guidance document is designed to be read alongside the Code for Crown Prosecutors and the Public Policy Statement as it provides greater detail on some of the key areas of the policy statement that prosecutors may be concerned with when dealing with this type of crime.

Impact of racist and religious crimes on individuals and communities

The CPS views this type of crime very seriously as it has a real and lasting effect on individuals, communities and the whole of society. By letting people know what they can expect from the CPS when we prosecute racist or religious crime, we aim to improve confidence in the criminal justice system.

Racist and religious crime is particularly hurtful to victims as they are being targeted solely because of their personal identity, their actual or perceived racial or ethnic origin or their actual or perceived belief or faith. Black and minority ethnic victims can also be targeted because they belong to other minority groups and may experience multiple discrimination.

These crimes can happen randomly, for example, at nightclubs, at takeaways or restaurants, on public transport, at football matches, or on shopping trips, or can be a part of a campaign of continued harassment and victimisation by, for example neighbours, extremist groups, customers or even family members. Crimes can sometimes be a combination of these things - harassment by neighbours or attacks by organised gangs on a person and their home or random attacks in public places.

The impact on victims is different for each individual, but there are common problems that are experienced by victims of racist of religiously aggravated crime. They can feel extremely isolated or fearful of going out or even staying at home. They may become withdrawn, and suspicious of organisations or strangers. Their mental and physical health may suffer in a variety of ways. For young people in particular, the impact can be damaging to their self-esteem or identity and, without support, a form of self-hatred of their racial or religious identity may result.

The confusion, fear and lack of safety felt by individuals have a ripple effect in the wider community of their racial or religious group. Communities can feel victimised and vulnerable to further attack.

Top of page

Racist and religious crime - the legislation

Parliament has passed legislation aimed at outlawing crime where the offender is motivated by hostility or hatred towards the victim's race or religious beliefs (actual or perceived). A table setting out some of the more commonly used legislation is attached at Annex A.

It is important that prosecutors are aware of the full range of available offences when deciding on the most appropriate charge to prosecute in a particular case.

Crime and Disorder Act 1998 (as amended)

This Act came into force on 30 September 1998 and created a number of specific offences of racially aggravated crime, based on offences of wounding, assault, damage, harassment and threatening/abusive behaviour. Monitoring had indicated that these types of crime were those most commonly experienced by victims of racial violence or harassment.

The Act was amended by the Anti-terrorism Crime and Security Act 2001, which came into effect on 14 December 2001. It extended the scope of the Crime and Disorder Act by creating new specific religiously aggravated offences and applying the same sentencing duty to all other offences where there is evidence of religious aggravation.

The Act was amended further by the Protection of Freedoms Act 2012, which came into effect on 25 November 2012. It created new specific offences of stalking and it also created racially and religiously aggravated versions of these offences.

The legislation provides definitions of racial groups and religious groups in the following terms:

"A racial group means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins." The definition is wide and victims may come within the definition under more than one of the references. Gypsies and some travellers, refugees or asylum seekers or others from less visible minorities would be included within this definition. While Romany gypsies have long been recognised as a ethnic racial group (Commission for Racial Equality v Dutton [1989] QB 783), in more recent times and certainly since the first instance discrimination case of O'Leary v Punch Retail (HHJ Goldstein, Westminster County Court, 29 August 2000), Irish Travellers have also been considered an ethnic racial group. Whilst this has not been considered by an appellate criminal court, the O'Leary case is regarded as being persuasive if the point is ever taken.

There has been a legal ruling that Sikhs are included in the definition of a racial group (Mandla v Dowell-Lee [1983] 2 AC 548). In the Mandla case, reference is made to the judgment in King-Ansell v Police [1979] 2 NZLR 531 as being a persuasive authority for Jews being included in the definition of a racial group as well as a religious group. Although not criminal cases, further support for this proposition can be found in the cases of R v JFS [2009] UKSC 15 which related to the legality of the admission policy of a Jewish secondary school and Seide v Gillette Industries Ltd [1980] IRLR 427 in which an Employment Appeal Tribunal ruled that anti-semitic comments made by a fellow-worker were made because he was a member of the Jewish race, not because of his religion.

"A religious group means a group of persons defined by reference to religious belief or lack of religious belief. This includes Muslims, Hindus and Christians, and different sects within a religion." It also includes people who do not hold any religious beliefs at all.

"Hostility"

To prove that an offence is racially or religiously aggravated, the prosecution has to prove the "basic" offence followed by racial or religious aggravation, as defined in section 28 Crime and Disorder Act 1998. An offence will be racially or religiously aggravated if:

a) at the time of the offence (or shortly before or after), the offender demonstrates to the victim hostility based on the victim's membership (or presumed membership) of a racial or religious group, or

b) the offence is motivated wholly or partly by hostility towards members of a racial or religious group based on their membership (or presumed membership) of that group.

-- demonstrating hostility is not defined by the Act. The ordinary dictionary definition of hostile includes simply being "unfriendly". Proving this limb of the offence requires evidence of words or actions which show hostility toward the victim. However, this hostility may be totally unconnected with the "basic" offence which may have been committed for other, non-racially or religiously motivated reasons. For example, an assault which takes place because of an argument over a parking place, but where the offender then utters racial abuse to the victim of the assault would come within the scope of this part of section 28.

-- motivated by hostility may prove more difficult in practice. In the absence of a clear statement by the accused that his/her actions were motivated by his hostility to his victim based on his race or religious belief, for example, an admission under caution, how can motive be shown? In some cases, background evidence could well be important if relevant to establish motive, for example, evidence of membership of, or association with, a racist group, or evidence of expressed racist views in the past might, depending on the facts, be admissible in evidence.

The following cases illustrate the approach that the courts have adopted when interpreting the law.

In DPP v McFarlane (2002) EWHC 485, Rose LJ found that once the "basic" offence was proved (in this case a public order offence) and that racist language was used that was hostile or threatening to the victim, it made no difference that the defendant may have had an additional reason for using the language. The test under section 28(1)(a) was satisfied.

In DPP v Woods (2002) EWHC 85, the defendant used racially abusive language to a doorman at a nightclub when expressing anger and frustration over being refused admission. It was held, as in McFarlane, that the fact that the primary reason for the offence was other than a racist motivation, the use of racist abuse during the commission of the basic offence made out the test for racial aggravation in section 28(1)(a). The point was made that, ordinarily, the use of racially (or religiously) insulting remarks would, in the normal course of events, be enough to establish a demonstration of hostility.

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 defendants 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 offenders hostility was based on other factors as well as racism or xenophobia was irrelevant.

Top of page

Enhanced sentencing powers for racially or religiously aggravated offences

The offences under the Crime and Disorder Act 1998 carry higher maximum penalties than the basic offence equivalents.

Some of them also become either way offences in the aggravated form.

Prosecutors need to be familiar with this aspect for the following reasons:

  • making decisions on mode of trial; 
  • deciding whether it is necessary to include alternative charges or counts on the indictment.

Statutory sentencing duty

In addition to the specific offences created by the Crime and Disorder Act 1998, the law imposes a general duty on criminal courts, when sentencing an offender, to treat more seriously any offence which can be shown to be racially or religiously aggravated (Section 145 Criminal Justice Act 2003, which came into force on 4 April 2005, and which replaced the similarly worded Section 153 Powers of Criminal Courts [Sentencing] Act 2000).

Top of page

Incitement to Racial Hatred - Part III Public Order Act 1986

Article 10 of the European Convention on Human Rights [ECHR] allows freedom of expression save in certain limited circumstances. These circumstances include the offences contained within Part III of the Public Order Act 1986 (ss 18-23).

Additionally, Article 17 of the Convention states: "Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." Relevant case law includes Glimmerveen and Hagenbeek v Netherlands 18 DR [1987] and Kuhnen v Germany 56 DR [1988].

For an offence to be committed under any of these sections of the Public Order Act 1986, there has to be one of the acts described therein: it has to be "threatening, abusive or insulting", and it has to be intended to or likely in all the circumstances to stir up racial hatred.

The words "threatening, abusive or insulting" are to be given their ordinary meaning and case law dealing with other provisions of the Public Order Act 1986 can assist with this.

Racial hatred is defined in section 17 of the Act. The prosecution must prove that hatred was intended to be stirred up or that it was likely to be stirred up. Likely does not mean that racial hatred was simply possible. We therefore have to examine the context of any behaviour very carefully, in particular the likely audience, as this will be highly relevant.

These offences appear in the Public Order Act 1986, which is generally designed to prevent acts of violence, disorder, harm or threats. Although it will often be present, the risk of commission of a criminal act of this nature is not essential to prove the commission of an offence of stirring up hatred on the grounds of race.

When people hate others because of race, such hatred may become manifest in the commission of crimes motivated by hate, or in abuse, discrimination or prejudice. Such reactions will vary from person to person, but all hatred has a detrimental effect on both individual victims and society, and this is a relevant factor to take into account when considering whether a prosecution is appropriate.

It is essential in a free, democratic and tolerant society that people are able to robustly exchange views, even when these may cause offence. However, we have to balance the rights of the individual to freedom of expression against the duty of the state to act proportionately in the interests of public safety, to prevent disorder and crime, and to protect the rights of others.

All such allegations are by their very nature highly sensitive. For that reason, and to ensure a consistent approach, any allegation under this legislation, must be referred by the relevant CPS Area to the Special Crime and Counter Terrorism Division (SCCTD). Referral means the submission of a report which is sufficient to enable SCCTD and the Area to have an informed discussion about where the responsibility for the case should lie.

When an Area becomes aware of such a case, it should be referred to SCCTD within seven days. If it is decided that the case should be prosecuted as an offence of incitement to racial hatred, SCCTD will take over the conduct of the case from the Area. If SCCTD considers that it is clearly a case where incitement to racial hatred does not apply, the case should be returned to the Area within seven days of that decision being made.

If SCCTD decides to deal with a case, the file is held there and dealt with there. Thereafter, cases can only proceed with the consent of the Attorney General.

The law only covers acts that are intended, or are likely, to stir up racial hatred. Whilst the definition of what constitutes "race" or "racial" is wide, it is clear that it does not cover "religious" hatred.

Top of page

Stirring Up Religious Hatred - Racial and Religious Hatred Act 2006

This Act came into force on 1 October 2007. It creates new offences of stirring up religious hatred, which are significantly different from the race hate offences contained within Part III of the Public Order Act 1986.

The offence is committed if a person uses threatening words or behaviour, or displays any written material, which is threatening, if he intends thereby to stir up religious hatred. Threatening is the operative word, not abusive or insulting. Possession, publication or distribution of inflammatory material is also an offence. The offence can be committed in a public or private place, but not within a dwelling, unless the offending words and behaviour were heard outside the dwelling, and were intended to be heard. The defendant must intend to stir up religious hatred; recklessness is not enough.

So using abusive or insulting behaviour intended to stir up religious hatred does not constitute an offence, nor does using threatening words likely to stir up religious hatred.

There is a freedom of expression defence contained in Section 29J, which confirms that nothing in the Act "... prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult, or abuse of particular religions, or the beliefs or practices of its adherents."

So it is more difficult to prosecute for inciting religious hatred as opposed to racial hatred (for which the standard is already high).

Prosecutions for this offence require the consent of the Attorney General and are dealt with under the same arrangements as offences of inciting racial hatred.

Top of page

Racialist chanting at football matches Section 3 Football Offences Act 1991 (as amended)

This offence is committed when a group of people, or one person acting alone, chants something of a racialist nature at a designated football match. "Racialist" means the same as "racist".

To prove this offence, the prosecution has to show that the chanting, which means the repeated uttering of words or sounds, was threatening, abusive or insulting to another person because of that person's colour, race, nationality (including citizenship) or ethnic or national origin.

We do not have to prove that the chanting was directed at a particular individual or group, although it will often be directed at a player or players from Black and minority ethnic communities.

We do have to prove that the football match was being played between teams from the Premier League, the Football League or the Conference League.

If convicted, the accused person can be fined (level 3), and, in addition to any other penalty, banned from attending football matches both in this country and abroad.

Even when a person is not charged with an offence, a magistrates court may issue a similar banning order against a person who has been involved in violent behaviour before, if the court is satisfied that this would help to prevent violence or disorder at football matches in the future. The police (and not the CPS) have the power to apply to the court for a banning order in these circumstances. Breach of a banning order is punishable by a maximum penalty of up to six months imprisonment.

The crime does not apply to chanting which is of a religious nature. In such circumstances, it may be appropriate to charge religiously aggravated public order offences.

This offence is aimed at specific behaviour within football grounds at designated matches and was introduced to combat the problem of mass racist chanting.

However, this offence should not be seen in isolation and it is not the only legislative tool available to deal with racist or religious football related crime.

In some situations, it might be more appropriate to charge other offences, such as specific racially or religiously aggravated public order offences. This may be the case, for example, where:

  • the offence is committed outside the stadium at a designated football match;
  • a public order offence is committed where religious as opposed to racist hostility is demonstrated to the victim or victims; or
  • racial abuse and harassment of black and minority ethnic players takes place at a non-designated football match, such as at an amateur game.

Depending on the facts of each case, we should consider carefully all the available information so that we prosecute the offence (or offences) that reflects most accurately the offender's behaviour and which allows the court to take account of any racist or religious hostility or motivation.

Top of page

Other religious offences

In addition to the religiously aggravated offences, prosecutors should be aware that there are other religious offences that can be prosecuted.

Blasphemy was an indictable offence at common law. It was an attack on the Christian religion, either orally or in writing, made in terms that were likely to shock or outrage the feelings of most Christian believers. There were very few prosecutions for this offence in recent times, and the offence was abolished with effect from 8 July 2008 by section 79 Criminal Justice and Immigration Act 2008.

There are several other statutory offences designed to protect acts of worship of various kinds which may be useful offences for prosecutors to bear in mind.

Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 creates an offence of violent or indecent behaviour in any place of worship that has been certified under the Places of Worship Registration Act 1855 and the Act also affords protection to a person preaching or carrying out other religious duties. Mosques and synagogues are certified and are therefore covered by this legislation.

The penalty on conviction is a level 1 fine or up to two months imprisonment. This may account for the fact that other legislation, with a higher maximum penalty, is sometimes preferred to deal with the kind of criminal behaviour which could be covered by section 2 of the 1860 Act. There might be circumstances, however, in which a section 2 offence is more appropriate simply to mark the anti-religious nature of the offence and where the available penalty is not the primary consideration.

Section 36 of the Offences Against the Person Act 1861 creates an offence of assaulting a clergyman or other minister or preventing them from officiating at religious services. This is an either way offence which carries a maximum penalty of two years imprisonment on indictment.

There are also specific offences under the Cemeteries Clauses Act 1847 and the Burial Laws Amendment Act 1880 of causing disturbances in cemeteries and disrupting or obstructing burials respectively

Top of page

How to make sure we take full account of a racial or religious element when we prosecute a case

It is essential that we make sure that we identify all those cases that might properly be prosecuted as specific racist or religious crimes, or where we can put that evidence before a court when it is deciding on sentence.

This begins right at the point where we receive a file from the police. We have an agreement with the Association of Chief Police Officers (ACPO) that the police will identify a file that meets the Stephen Lawrence Inquiry Report definition of a racist incident when they send it to the CPS to prosecute.

The CPS uses this common definition to identify these cases and to monitor the decisions and outcomes.

The definition is:

"A racist incident is any incident which is perceived to be racist by the victim or any other person."

We also have an agreement with ACPO that the police will identify a file that refers to a religiously incident.

We define a religious incident as:

"Any incident which is believed to be motivated because of a persons religion or perceived religion, by the victim or any other person."

Both definitions help in raising awareness of the racist or religious element in any offence right from the point of reporting, through investigation, up to and including any prosecution.

Top of page

Prosecuting cases of racist and religious crime

The prosecutor has a key role to play in making sure that racist or religious crime is prosecuted fairly and robustly and that the racial or religious element of an offence is taken into account appropriately at all stages of a case as it is prosecuted at court. It is important that these cases are handled in a timely manner and that steps are taken to ensure that cases are prosecuted at court without delay.

In contrast to the handling arrangements for cases involving incitement to racial hatred and stirring up religious hatred (see above), there is no requirement for CPS Areas to refer racially or religiously aggravated offences to SCCTD. The requirement to refer cases involving religiously aggravated offences to HQ ceased in October 2010.

The case should be referred to the Area's Hate Crime Co-ordinator to be reviewed or supervised by an experienced prosecutor.

Counsel or solicitor agents instructed to prosecute on behalf of the CPS should have a clear understanding of our policy on prosecuting racist and religious crime. It is essential that arrangements are in place to ensure that they act in accordance with our policy and receive clear instructions to that effect.

A checklist summarising some of the key issues that prosecutors should consider when prosecuting racist or religious crime is attached at Annex B. Prosecutors may find it useful to assist in case management or simply as an aide memoire.

Top of page

Identification of relevant information

Flagging a case as a racist or religious crime puts the prosecutor on notice that someone at some stage - victim, witness, defendant and/or investigator - has perceived that the incident that gave rise to the charge had a racist or religious element.

Police forces should record the religion or belief of victims and defendants on the relevant MG forms. However, it is important that prosecutors do not become too reliant on the police making this initial identification. Although police identification has improved significantly, the police still do not identify all cases that we ultimately prosecute as racist or religious crime. Prosecutors need to be vigilant to make sure that at every review they consider the possibility of a case being a racist or religious case.

Prosecutors must adopt a proactive approach to seeking further information from the police to help them to decide if a case may properly be prosecuted as a racially or religiously aggravated offence, or as one of the offences with a racial or religious element, or if there is evidence that should be presented to the court at sentence.

This information may already be available (for example, in a Victim Personal Statement - see below) and may just need more detail or be collected in a form that will allow it to be presented to the court as evidence.

In some cases, the CPS may advise the police to follow up other possible avenues of enquiry. This might include looking at previous, reported incidents involving the same victim, or the same suspect. It may also involve seeking information or evidence from other agencies. For example, there may be current or previous eviction proceedings taken by a local authority or housing association involving the parties in the criminal proceedings. In all cases, prosecutors should liaise directly with the officer in the case to make sure all available evidence has been obtained and sent to the CPS to consider when reviewing the case. This may be especially important if the situation represents repeat victimisation.

Some repeat victims may themselves be charged as a result of counter allegations made by those against whom they have complained. This situation is not uncommon and such cases require a careful consideration by the prosecutor of all the facts of the present incident and any previous history when deciding who should be prosecuted.

Top of page

Charging

The Director's Guidance on Charging requires offences involving racial or religious aggravation, once they have met the Threshold Test, 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 Full Code Test set out in the Code for Crown Prosecutors.

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

"... the offence was motivated by any form of discrimination against the victims ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender idenity, or the suspect demonstrated hostility towards the victim based on any of those characteristics."

The charges that we decide to pursue should always reflect the seriousness and extent of the offending supported by the evidence; any element of pre-meditation or persistence in the defendants behaviour; the provable intent of the defendant; and the severity of any injury suffered by the victim. Reference should always be made to any relevant Charging Standards. The charges must enable us to present the case in a clear and simple way, and they must give the court adequate powers to sentence and impose appropriate post-conviction orders.

Top of page

The Views of the Victim or Witness in determining the Public Interest

In cases with an element of racial or religious aggravation, 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 4.12(c)) 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 also include the victims family.

"Prosecutors also need to consider if a proecution is likely to have an adverse effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence. If there is evidence that prosecution is likely to have an adverse impact on the victim's health it may make a prosecution less likely, taking into account the victim's views."

Top of page

Alternative charges

It is important that prosecutors are familiar with the circumstances in which courts can return alternative verdicts without the need for alternative charges being laid, or alternative counts on an indictment being preferred.

The Crime and Disorder Act 1998 makes provision for statutory alternatives in respect of some of the racially or religiously aggravated offences.

Section 6(3) Criminal Law Act 1967 allows for alternative verdicts in trials on indictment where the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial. A summary only offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment a count for common assault etc.).

Where the Criminal Law Act 1967 does not apply, (for example in the magistrates' courts) or where there are no statutory provisions for alternative verdicts, consideration has to be given to including alternative counts on the indictment, or drafting charges in the alternative.

In summary cases, there is no power for the court of trial to return an alternative verdict to a lesser or alternative offence. Consideration should therefore be given in all cases to putting alternative charges to both the basic and the racially or religiously aggravated offences.

It must be made clear to the court, the defence and the victim why this is being done. It is not an admission of weakness of the case nor is it an indication that a plea of guilty to the "basic" and therefore less serious offence is acceptable.

Where the allegation involves evidence of both racial and religious aggravation, it will normally be necessary to include separate charges to reflect both aspects at both the aggravated and basic level of offences.

Top of page

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

In cases with a racist or religious 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 CPS prosecutes on behalf of the public at large and not just in the interest of any particular individual. However, when considering the public interest, prosecutors should always take into account the consequences for the victim of the decision whether or not to prosecute, and any views expressed by the victim.

Many members of black and minority ethnic communities and faith communities do not report racist or religious crime to the police because of a lack of confidence in the criminal justice system. When offences are eventually reported, previous failures to report should not be seen as diminishing a witness's credibility.

In cases where the victim or witness has reported a case to the police, the defendant has been charged, and the victim or witness then decides that they no longer wish to give evidence, it is essential that we ask the police to make full enquiries into why support for the prosecution has been withdrawn.

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 whether 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, the CPS Hate Crime Co-ordinator.

The prosecutor should also 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 with a racial or religious element, the victim may not wish to give evidence because he or she lives or works in a community in which they feel isolated or particularly vulnerable, or because he or she is fearful of the consequences of giving support to the prosecution. In such cases, the prosecutor must have regard to any special measures available to the prosecution or the court that may help the victim or witness to overcome their concerns. It is also important to ensure that the case is prosecuted without undue delay.

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 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 victims willingness to give evidence.

Top of page

Continuing a case where the victim indicates a withdrawal of support

If a special measures 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 victims 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 victims wishes, we must 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 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 that 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.

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 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 CJS.

Prosecutors should also ask the police for a copy of the risk assessment undertaken when making decisions about how to proceed in the case.

If the reason for a victim or witness's withdrawal is based on fear or intimidation, the prosecutor needs to have such evidence brought to their attention. This will allow appropriate decisions to be made about any applications under section 116(2)(e) of the Criminal Justice Act 2003. Such applications are only likely to succeed where there is other evidence to put before the court. Section 116 applications are often unsuccessful when the victim is the only witness to the offence, because in such cases it is very difficult to satisfy the court that justice is being served when the defence cannot cross-examine the only witness against them.

If there is insufficient evidence to continue without the evidence of the witness or victim, the reviewing prosecutor will need to weigh up whether the facts of the case are sufficiently serious to require the victim or witness to attend court under a witness summons. Factors that will help in determining the public interest in these cases are:

  • the seriousness of the offence;
  • the victim's injuries whether physical or psychological;
  • if the defendant used a weapon;
  • if the defendant has made any threats before the attack;
  • if the defendant planned the attack;
  • the chances of the defendant offending again;
  • the continuing threat to the health and safety of the victim or anyone else who is, or may become involved;
  • the victim's relationship to the defendant;
  • the defendant's criminal history, particularly any previous offences based on race or religion;
  • if the offence is widespread in the area where it is committed;
  • repeat victimisation by that defendant [reported or unreported].

The final decision is that of the prosecutor, but the decision to compel a witness to give evidence may be construed negatively, so every attempt should be made to regain the victim's or witness's support for the prosecution wherever possible.

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

Top of page

Accepting pleas

It is CPS policy not to accept pleas to lesser offences, or omit or minimise admissible evidence of racial or religious aggravation for the sake of expediency.

Where it is thought appropriate to accept a plea, full regard should be had to the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise. All prosecutors should be aware of their contents and follow them. They explain the important role that the prosecutor plays in protecting the general public interest and the specific interests of victims.

Prosecutors must place evidence of racial aggravation before a court in a trial or at a sentencing hearing when it is proper to do so. Acceptance of a plea to a lesser offence will only be appropriate in circumstances such as those outlined above.

Full notes of the reasons for accepting pleas must be recorded, and such decisions should be referred to nominated senior or specialist prosecutors for ratification.

Top of page

Sentencing

Prosecutors have a duty to present all relevant material to allow the court to pass sentence in accordance with the law. Racial or religious aggravation makes an offence more serious and the court has a duty to take this into account when it sentences a defendant.

Prosecutors must neither minimise nor omit relevant and admissible evidence of racial or religious aggravation.

Prosecutors should also make sure that they are aware of the guideline cases to assist the court in sentencing, in particular R v Kelly & Donnelly [2001] 2 Cr. App. R. (S) 73 CA which adopted the majority of recommendations made to the Court of Appeal by the Sentencing Advisory Panel Advice No 4.

The Court of Appeal endorsed the following approach:

  • the court should first decide on the appropriate sentence without the element of racial or religious aggravation, but including any other aggravating or mitigating features;
  • the sentence should then be enhanced to take account of the racial or religious aggravation;
  • if the offence itself merits custody, that sentence should be enhanced by an appropriate amount to reflect the degree of racial or religious aggravation;
  • the judge should say publicly what the appropriate sentence would have been without the racial or religious aggravation.

Although the original guidance applies to offences charged as specific racially aggravated offences and to all other offences where section 145 Criminal Justice Act 2003 applies, it should also be taken as applying to religiously aggravated offences, following the amendment to the Crime and Disorder Act 1998.

Where there is a plea of guilty or the defendant is found guilty, the defence should be informed of the evidence in the case that the prosecution relies on to establish racial or religious aggravation, if this has not already been served on them or adduced during the trial. If the defence wish to dispute any of the facts that amount to the racial or religious aggravation, it may be appropriate for the court to conduct a "Newton" hearing to resolve conflicting versions of the facts after the verdict has been returned. This is of increased importance as the court has a statutory duty under section 145 Criminal Justice Act 2003 to take account of racial or religious aggravation in assessing seriousness for the purpose of sentencing. See legal guidance on Newton Hearings for the procedure to be followed.

In the case of those offences which could be charged as specific racially or religiously aggravated offences, it would not be appropriate following conviction for a "basic" offence then to seek to introduce evidence that the offence was racially or religiously aggravated under Section 145 - to do so would amount to introducing evidence of a more serious offence than that for which the defendant has been convicted (R v Druce 14 Cr App R (S) 691; R v Davies (1998) Cr App R (S) 380). It is important to bear this in mind at a number of key stages of the case, especially review and charge selection, and when considering any pleas offered by the defendant.

Where there is a Victim Personal Statement setting out the effect of the crime on the victim, it is important that it is brought to the attention of the court. It allows the court to determine the seriousness of the case and to sentence accordingly.

Top of page

Making ancillary orders at sentence

Prosecutors should be aware of the courts' powers to make any ancillary orders when sentencing, and be in a position to provide the court with the information it requires to make such orders as necessary. Examples of ancillary orders the courts might consider include:

  • compensation;
  • confiscation orders;
  • restraining orders under the Protection from Harassment Act 1997;
  • football banning orders;
  • anti-social behaviour orders [ASBOs]. ASBOs can be made following criminal conviction in addition to other penalties - [section 1C Crime and Disorder Act 1998, amended by the Police Reform Act 2002, the Anti-Social Behaviour Act 2003 and the Serious Organsied Crime and Police Act 2005]. Separate guidance is available on the role of the prosecutor in such cases.

Top of page

Annex A - Legislation used to prosecute Racist and Religious Crime

Racially or religiously aggravated offences - Crime and Disorder Act 1998(amended by Anti-terrorism, Crime and Security Act 2001 and Part 11 of Schedule 9 Protection of Freedoms Act 2012)

Offence Maximum Penalty

Aggravated form Maximum Penalty

Basic form

Racially/religiously aggravated wounding/grievous bodily harm (s.29(1)(a) CDA)Crown Court - 7 years imprisonment
Magistrates' court - 6 months
Crown Court - 5 years imprisonment
Magistrates' court - 6 months
Racially/religiously aggravated actual bodily harm (s.29(1)(b) CDA)Crown Court - 7 years imprisonment
Magistrates' court - 6 months
Crown Court - 5 years imprisonment
Magistrates' court - 6 months
Racially/religiously aggravated common assault (s.29(1)(c) CDA)Crown Court - 2 years imprisonment
Magistrates court - 6 months
Magistrates' court - 6 months
Racially/religiously aggravated damage (s.30(1) CDA)Crown Court - 14 years imprisonment
Magistrates' court - 6 months
Crown Court - 10 years imprisonment
Magistrates' court - 3 months
Racially/religiously aggravated fear/provocation of violence (s.31(1)(a) CDA)Crown Court - 2 years imprisonment
Magistrates' court - 6 months
Magistrates' court - 6 months
Racially/religiously aggravated intentional harassment/alarm/distress (s.31(1)(b) CDA)Crown Court - 2 years imprisonment
Magistrates' court - 6 months
Magistrates' court 6 months
Racially/religiously aggravated harassment/alarm/distress (s.31(1)(c) CDA)Magistrates' court - fine up to level 4Magistrates' court - fine up to level 3
Racially/religiously aggravated harassment and stalking

stalking (s.32(1)(a) CDA
Crown Court - 2 years imprisonment
Magistrates' court - 6 months
Magistrates' court - 6 months
Racially/religiously aggravated harassment and stalking

stalking involving fear of violence or serious alarm or distress (s.32(1)(b) CDA)
Crown Court - 7 years imprisonment
Magistrates' court - 6 months
Crown Court - 5 years imprisonment
Magistrates' court- 6 months

Incitement to racial hatred - sections 17-29 Public Order Act 1986

OffenceMaximum Penalty
s.18 - using threatening/abusive/insulting words or behaviour or displaying written material with intent/likely to stir up racial hatredCrown Court - 7 years imprisonment
Magistrates' court - 6 months
s.19 - publishing/distributing written material which is threatening/abusive/insulting with intent/likely to stir up racial hatred Crown Court - 7 years imprisonment
Magistrates' court - 6 months
s.20 - public performance of a play involving threatening/abusive/insulting words/behaviour with intent/likely to stir up racial hatred Crown Court .- 7 years imprisonment
Magistrates' court - 6 months
s.21 - distributing/showing/playing a recording of visual images or sounds that are threatening/abusive/ insulting with intent/likely to stir up racial hatred Crown Court - 7 years imprisonment
Magistrates' court - 6 months
s.22 - broadcasting or including programme in cable programme service involving threatening/abusive/insulting visual images or sounds with intent/likely to stir up racial hatredCrown Court - 7 years imprisonment
Magistrates' court - 6 months
s.23 - possessing racially inflammatory material/material for display/publication distribution with intent/likely to stir up racial hatredCrown Court -7 years imprisonment
Magistrates' court - 6 months

Incitement to religious hatred - sections 29B-29G Public Order Act 1986

OffenceMaximum Penalty
s.29B - use of words or behaviour / display of written material intended to stir up religious hatredCrown Court 7 years imprisonment
Magistrates' court - 6 months
s.29C - publishing or distributing written material intended to stir up religious hatredCrown Court - 7 years imprisonment
Magistrates' court - 6 months
s.29D - public performance of a play intended to stir up religious hatredCrown Court - 7 years imprisonment
Magistrates' court - 6 months
s.29E - distributing/ showing/playing a recording intended to stir up religious hatredCrown Court - 7 years imprisonment
Magistrates' court - 6 months
s.29F - broadcasting/including a programme in a programme service intended to stir up religious hatredCrown Court - 7 years imprisonment
Magistrates' court - 6 months
s.29G - possession of inflammatory material intended to stir up religious hatredCrown Court - 7 years imprisonment
Magistrates' court - 6 months

Football Offences - section 3 Football Offences Act 1991 (amended by section 9 Football (Offences and Disorder) Act 1999)

OffenceMaximum Penalty
Engaging in or taking part in indecent/racialist chanting at a designated football match Fine up to level 3

Top of page

Annex B - Checklist - prosecuting racist or religious crime

This is not exhaustive, but prosecutors dealing with racist or religious crime may find it useful as both a checklist and a record of decision-making and an aid to file endorsement.

Areas may wish to adapt the checklist to meet their own requirements.

Issue to be consideredDecision / CommentInformation date
1. Information needed from the police

Previous incidents against this victim
- reported?
- crime report?
- prosecution action?


Previous incidents involving this defendant
- reported?
- crime report?
- action taken?

Ability/willingness of victim to give evidence
Effect on wider community
Likelihood of recurrence
Views on safety of victim/family
Information from other agencies e.g. Social Services, Housing Department, Health, Education
Information from other organisations e.g. monitoring groups
Any current civil proceedings?
Any other orders in existence e.g. ASBOs, civil injunctions?
Is current incident in breach of any order?
Any other information?

2. Bail

Police view on victim and family safety
Victims view on own and family safety
Method for informing victim
promptly of bail decision
Victim Personal Statement

3. Charges

Specific racially/religiously aggravated charge?
Alternative verdict available?
Need for alternative charge/count on indictment?

4. Retraction

Statement from victim giving full reasons
Original complaint does victim confirm if it was true or false?
Duress/intimidation/harassment?
Other relevant information?

Police Officer
View of reasons given
View on how case should be dealt with
View on how victim would react to being compelled
View on safety of victim/family and future risk
View on impact on wider community

Victim
Views on case proceeding
Injuries (including psychological)
Subsequent threats?
Planned attack?
Incident witnessed by others?
Details?
Risk of recurrence
Defendants criminal history towards victim
Information from other agencies
Issue to be considered Decision/comment Information date

Where victims evidence is vital
Witness summons?
Witness individual needs assessment?
Arrest warrant?
Section 23 CJA 1988?
Special measures?
Witness protection measures?

Where victims evidence is not vital
Sufficient other evidence?
In public interest to proceed?

5. Other evidence

Photographs of scene
Medical evidence
Admissions
Res gestae
999 records
Independent evidence
Similar fact evidence: Previous incidents? Previous convictions?

6. Trial

Victim vulnerable/intimated?
Witness Service/other support agency involved?
Waiting arrangements?
Pagers?

Eligibility for special measures YJCEA 1999
Early special measures meeting with police?
Special measures meeting with victim/witness?

Measures
Screens
Live TV link
Video evidence
Clear public gallery
Restrictions on media reporting
Prohibition on cross-examination by accused in person

Interpreter
Required?
Language/dialect?

7. Plea and sentence

Reasons if accepting plea to lesser offence (specify in terms as set out in the Code for Crown Prosecutors)
Consultation with line manager/specialist?
Views of victim?

DCV
DCV letter sent to victim where charge dropped/altered?
Meeting with victim offered?
Meeting arranged?
People to attend?

Sentencing
Evidence of racial/religious aggravation presented to court?
Court indication that offence treated more seriously?
Effect on victim Victim Personal Statement?

8. Monitoring and sharing good practice

RIDS form completed?
Sent to Area RIDS co-ordinator?
Good practice to be shared with team/unit/Area/EDO/Policy?
Issues identified to raise with other CJS agencies (e.g. police/court)
Share positive outcomes with the wider community through local initiatives/groups including Hate Crime Scrutiny Panels

Top of page