Guidance on Prosecuting Cases of Homophobic Crime

• Introduction
• Terminology
• Appropriate Language
• Is there a Need for Special Guidance
• Reviewing Cases with a Homophobic Element
• The Bail Act 1976
• Anonymity
• Measures Available to Assist Witnesses
• Victim and Witness Care
• Monitoring
• Community Engagement
• Talking to CJS Partners
• Annex A
• Annex B
• Annex C
• Annex D
• Annex E

Introduction

In recent years, issues surrounding discrimination against sections of our society have been brought to the forefront of people's attention. We are all probably more aware now of issues surrounding racial and sexual discrimination than we used to be, and we are all more aware of the need to pay special attention to cases where these features are present.

Cases involving domestic violence are a good example of how The CPS has started to lead the field in terms of issuing public guidance about how we intend to deal with cases where it is present.

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 law itself now recognises racial motivation as an aggravating feature in sections 28-32, Crime and Disorder Act 1998. The CPS has a duty to ensure that where such aggravating features are present in a case the correct charge is preferred and the facts relating to that motivation are brought to the attention of the sentencing court.

Another important – although less well-considered – area of discrimination is based on the sexual orientation or gender identity of the victim. 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. Crimes based on homophobia and transphobia have therefore been ignored or forgotten because of the prejudiced views of a minority of individuals who do not give lesbian, gay and bisexual people and people who are transgendered the respect that they have a right to and deserve, or the encouragement that they need, in order to report incidents against them and then support the prosecution of the perpetrators in court.

No-one knows the exact number of homophobic incidents that occur each year. One of the most authoritative reports is that published by the National Advisory Group/Policing Lesbian and Gay Communities which examined the levels of homophobic crime and community confidence towards the police service in 1999. The key findings of that report are set out in annex B of this guidance.

Prejudice, discrimination or hate of members of any part of our community based on their sexual orientation or gender identity has no place in a civilised society; any such prejudice, discrimination or hate that shows itself in the commission of crime must be thoroughly and properly investigated and firmly and rigorously prosecuted in the courts. A clear message must be sent so that those who commit such crimes realise that they will be dealt with firmly under the criminal law: The CPS has a vital role to play in delivering this aim, not only in terms of its own role but also in terms of advising its partners in the criminal justice system – the police, the courts, magistrates, judges and those in the voluntary sector – that this sort of crime must no longer be tolerated.

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, and such elements of the case will be brought by us to the attention of the court at the appropriate time. In this way, we hope to start the long process of assuring lesbians, gay men, bisexuals and trans people that The CPS is committed to providing them with the highest possible quality service in cases in which they are involved.

We have recognised the difference, however, between "incidents" and "crimes". We want to encourage victims of, or witnesses to, homophobic 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; and not every case that is brought to our attention will automatically allow us to lead evidence of the homophobic element in it – 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. 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, what our policy statement does say is that any member of the LGBT communities who is involved in an incident that is reported to the police and in which The CPS become 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 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 that cases involving a homophobic element can and do also occur within a domestic context against a current or former partner of the same sex in a close relationship, or against a current or former family member. Where this does occur, The CPS' policy for prosecuting cases of domestic violence and its related guidance should also be followed.

We have been clear in stating that 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 tests 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 also 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 focussed 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.

Terminology

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 when this guidance was published in 2002.

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 phrase that is used to describe the sense that a person has of himself or herself as either a man or a woman. One's gender is therefore female or male, but there are people who move from one gender to the other. A transsexual is a person who has a profound form of gender dysphoria, in other words, a very deep dissatisfaction with his or her birth gender. Some transsexual people undergo surgery to provide them with the outward appearance of their preferred gender. There are a number of steps that a transsexual person needs to go through during this process, including a period when they retain the physical attributes of their birth gender but live - to all intents and purposes – as a member of their preferred gender. Therefore, where it is relevant to the issues (such as in a case alleging rape or sexual assault), a prosecutor who has a case involving a transsexual will need to know whether that person is pre- or post-operative and to what extent that person has adopted the lifestyle of their preferred gender in anticipation of any gender re-assignment operation: see paragraphs 5.20 – 5.22.

The term "trans person" includes transsexuals and transvestites, that is, people who dress with the desire to adopt the clothes, appearance and behaviour which is associated with the opposite gender. This may be on a full time or temporary basis. It also embraces people who adopt the clothes, appearance and behaviour which is associated with the opposite gender in order to entertain or perform; for example, drag queens are men who impersonate women, and drag kings are women who impersonate men.

Gender identity and sexual orientation are therefore different. It follows that a trans person may be lesbian, gay, bisexual or heterosexual.

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 ethnicity, nationality, religion or age. It may be that the person is also disabled, or a woman or young. 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 recorded.

"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 so severe as hatred. It is enough that people do something or abstain from doing something because they do not like LGBT people.

There is no statutory definition to help us in this area, nor, of course, are there any specific statutory crimes that we can adopt to reflect the element of homophobia or transphobia that we say is present in any particular 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. 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 may be that local police forces have a slightly different definition, but most will be based on the above, or a variation of it. These differences are likely because the police generally have moved at different speeds to consider issues surrounding the investigation and detection of crimes against LGBT people. Although there is an ACPO definition, not all police forces have adopted it. There has not been any equivalent to the Macpherson definition of racist crime that has led organisations to adopt a common approach.

As a result, The CPS is the first criminal justice agency that has adopted a uniform definition, and CCPs will need to discuss with their partner agencies in both the public and voluntary sectors the best way of ensuring that all the criminal justice agencies adopt the same definition.

It is important to recognise that the definition that The CPS has 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.

This is captured in paragraph 11 of the public statement where we talk about a person who has sex with a person of the same sex who does not see himself or herself as an LGBT person. There may be a number of reasons for this: social pressures; domestic responsibilities; economic pressures; or a simple unwillingness to regard themselves as part of the communities when they engage in homosexual or transsexual behaviour on a part-time basis. Whatever the reason for this view, it is important from The CPS' point of view that incidents in which such people are involved are also seen as falling within the public statement that we have published.

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.

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 is different, we have used the phrases "the LGBT communities" and the word "homophobia" 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 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 of reporting a homophobic incident or supporting a prosecution by giving evidence in court is that the victim or witness 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 they 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.

Appropriate Language

In all dealings with cases involving a homophobic 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 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 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.

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 counsel and other witnesses, treat the victim or witness with the dignity that they deserve and that they are addressed in appropriate terms.

Is there a Need for Special Guidance?

The CPS' answer to this question is an unequivocal "Yes". Aside from the reasons set out in the introduction to this guidance, victims and witnesses who are affected by homophobic 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 incident. They may have partners and families who are not aware of their sexual orientation; being "outed" through the criminal justice process may also cause them to lose their jobs; their homes; their economic stability; and their social standing.

Further, 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 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 witness if those concerns are made known. Accordingly, it is essential that procedures are in place that allow the witness to voice their concerns and to set out exactly what they believe the impact on their lives might be if they need to give evidence.

Reviewing Cases with a Homophobic Element

The Code for Crown Prosecutors applies in all cases when deciding whether to prosecute. There is no relaxation in the sufficiency of evidence test just because the case involves a homophobic element.

It is important, however, to be aware that the incident is one where a homophobic element is present. Prosecutors will want to be satisfied that the police enquiry in such cases has been thorough and that all possible witnesses have been interviewed. Often, witnesses to homophobic 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.

Where there is sufficient evidence under the Code to proceed, the public interest will almost always be in favour of a prosecution.

Major and minor offending

The way in which members of the LGBT communities have historically been treated by individuals within the criminal justice agencies has contributed to an entirely understandable reluctance by members of those communities to come forward to report any homophobic 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 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 CPS' policy in this area is set out in the public statement in the section: "minor offending by the victim of, or a witness to, a more serious crime" and is based on the relative seriousness of the two crimes. It is important to note that The CPS does not have any power to direct the police to follow the guidance that we have issued. However, Chief Crown Prosecutors will want to discuss with their local Chief Constables the way in which policing policy with regard to minor offending in these circumstances is implemented in an attempt to bring the two sets of policies into line.

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 an act of gross indecency, 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 gross indecency and is reported for that act alone, without that person becoming the victim of 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 crime: The CPS often has to consider how to deal with acts of minor offending by victims of, or witnesses to, more major offending. 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 as a result.

The appropriate charge

In many instances, the appropriate charge will be apparent from the file submitted by the police, either for advice or post-charge. Prosecutors will need to ensure that the charging standard on assaults has been properly applied in appropriate cases.

Some homophobic incidents will manifest itself in the commission of sexual offences. Prosecutors will want to ensure that they are familiar with the provisions of s14 and s15 Sexual Offences Act, 1956 – indecent assault on a woman and indecent assault on a man respectively. Bear in mind that females and males under the age of 16 years cannot in law give their consent that would prevent any act being an assault under either of these sections.

Prosecutors will also be familiar with the amendments to s1 Sexual Offences Act 1956 that were introduced by the Criminal Justice and Public Order Act 1994. It is now an offence for a man to rape a woman or another man, providing the conditions set out in s1(2) are met.

Possible defences

In addition to the usual array of defences with which prosecutors will be familiar, in cases that involve a homophobic element, they will sometimes be met with the so-called "Portsmouth defence" or the "Guardsman defence" or a defence based on "homosexual panic". In such cases, the defence suggests that the assault that the defendant allegedly committed was brought on by an alleged sexual approach by the victim or another person which so angered them that they assaulted the individual concerned.

In any cases where such a defence is raised, prosecutors will want to ensure that the victim is re-interviewed by the police to find out whether there is any truth in what the defendant alleges. Where the victim denies that he or she made a sexual advance on the defendant, prosecutors will want to ensure that evidence of that denial is led in court. Where the victim does admit that he or she made a sexual advance on the defendant, prosecutors will want to know exactly what occurred immediately before the assault by the defendant on the victim.

The fact that the victim made a sexual advance on the defendant does not, of itself, automatically provide the defendant with a defence of self-defence for the actions that they then take. Often, the sexual advance made by the victim will not involve any physical act of touching, and the reaction of the defendant is borne out of anger rather than any real belief that they were acting to protect themselves from an assault. Prosecutors will need to examine carefully all the evidence to show what actually occurred and ensure that they rebut a defence of self defence where either the evidence does not support the concept that the defendant was being attacked or the evidence shows that the defendant went beyond what was reasonably necessary to stop the attack by the victim (if there was one).

Particular issues that affect trans people

Case law with regard to assaults on or by transsexual people is limited and accordingly the law is not as certain in this area as we would like it to be. Nevertheless, in order to assist prosecutors who may have to make decisions about the appropriate charge in cases involving transsexual people, we have set out in this section the approach that The CPS should adopt.

Any prosecutor who deals with a case in the following circumstances should report the matter to Policy Directorate which has an interest in identifying the way in which the courts are dealing with cases involving transsexuals. This applies to cases in which the guidance set out below is supported by the court and to cases where it is not: in appropriate circumstances, The CPS may want to approach the appeal courts to determine the issue.

Trans women are women whose birth gender is male. However, those who are post-operative will often have an artificial vagina created. The question arises whether forcible penile penetration of the artificial vagina constitutes rape. There appears to be only one case on the subject, namely R v Matthews, in which Reading Crown Court on 28 October 1996 held that such an act constituted rape.

The CPS welcomes this first instance case law decision as it reflects the needs of a developing and increasingly diverse society. On the strength of this authority, and pending any legislation or more authoritative case law, prosecutors should choose, in appropriate cases, to charge rape and should be prepared to argue that the courts should take account of the needs of our developing society and all its members. However, prosecutors should also consider the need for any alternative charge, if the legal argument is lost. In any event, Areas should notify Policy Directorate in accordance with paragraph 5.19 in order to ensure that Headquarters is kept informed of developments.

Trans men are men whose birth gender is female. Those who are post-operative usually have to retain their vagina even where an artificial penis is created. Here, where there is forcible penile penetration of the 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 artificial.

The acquired gender should be used to determine the appropriate charge. Therefore, any indecent assault – such as the fondling of a trans woman's breasts – should be regarded as indecent assault on a woman, contrary to s14 Sexual Offences Act 1956.

Another 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 their acquired gender. So, a trans woman, although having a birth certificate that shows her to have been born a male, should be addressed by her female name, and, where appropriate, charged and/or indicted in that name.

They 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 views of the victim or witness in determining the public interest

In cases with a homophobic 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 test, 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.

As in all cases, the best casework decisions in cases with a homophobic element are the ones which are based on all the relevant evidence, facts and other information which the police are able to provide to the prosecution.

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.

Many homophobic 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 have confidence in us, more victims from the LGBT communities may be willing to come forward and report crimes to the police.

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

It is in these cases that background information is absolutely vital to make the best possible public interest decision. Before taking a final decision, the prosecutor will want to know the reasons why the victim or a witness no longer wishes to give evidence. In cases with a homophobic element, this may be because 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.

In cases where the victim or witness does wish to withdraw their support for the prosecution, the case must be overseen by an experienced prosecutor. That prosecutor will want to ensure that the police take a formal statement from the victim or witness in which their decision to withdraw their support is properly explained. The police's views about the way forward should be sought, with particular reference to their view about how the victim or witness will react to the prospect of being summoned to attend court.

Clearly, any evidence of fear or coercion needs to be brought to the attention of the prosecutor so that appropriate decisions may be made about any application under s23 Criminal Justice Act 1988. However, given the regime in place to allow a witness statement to be read as a result of the witness being afraid, it is unlikely that where the victim's or the witness' evidence is particularly important the judge will exercise his or her discretion in favour of the statement's admission.

If there is insufficient evidence to continue without the evidence of the victim or witness, the reviewing prosecutor will need to weigh up very carefully whether the facts of the case are sufficiently serious as to require the victim or witness to attend court under a witness summons. Factors that will help in making that decision are set out in paragraph 41 of the public statement and, for convenience at set out again here:

• 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 or after 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 with the defendant;
• the defendant's criminal history, particularly any previous offences based on homophobia;
• if the offence is widespread in the area where it is committed.

If there remains sufficient evidence to satisfy the test set out in the Code for Crown Prosecutors, the reviewing lawyer will want to look at all the other public interest factors and consider whether it remains in the public interest to continue with the prosecution.

There may be cases where the prosecutor is satisfied that there is a homophobic 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 in court. There is, of course, nothing to prevent the case from continuing in court on the appropriate charge without referring to the homophobic element.

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 keep informed of their current view regarding the continuation of the prosecution, especially if that person's evidence is crucial.

Where a case has been committed to 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.

ECHR issues

Prosecutors will be used to considering the impact of ECHR issues on both the defendant's, the victim's and a witness' rights within criminal proceedings generally. The rights of the defendant, the victim, a witness and the public have to be balanced.

Of particular relevance here is the possibility that a victim or witness who does not wish to support the prosecution in court because they fear that they may be "outed" as a result may suggest that any attempt by the prosecution to require that person to come to court or otherwise use their evidence might breach article 8 – the right to respect for private and family life. They may argue that the disclosure of their sexual orientation or gender identity through the requirement to give evidence infringes their rights in this regard.

Prosecutors will need to consider carefully how to rebut any suggestion of this nature and the fact that The CPS prosecutes in the public interest – not the interest of any one individual – and the fact that the views of the victim or witness, whilst important, are not paramount will be of help. It will be important in such cases for the prosecution to be able to show that the views of the victim have been taken into account in accordance with the Code for Crown Prosecutors, and full and accurate file endorsements are vital to this process.

The Bail Act 1976

The police make the initial decision to bail a defendant to attend to the next available court hearing – usually within two to five days of charge – or to keep the defendant in custody to appear before magistrates the following day. Once a defendant appears before the court, the decision about bail is made by the magistrates and is governed by the provisions of the Bail Act 1976.

Cases involving homophobic crime are no different from other crimes in this regard and prosecutors should make representations to the court about the appropriateness of custody or the imposition of bail conditions in accordance with the Bail Act and the information that has been provided to them by the police.

Recent research has shown that a significant number of homophobic-based crimes are committed in circumstances where the victim is known to the defendant. This can occur where the victim and the defendant are neighbours or work colleagues for example.

In such cases, prosecutors will want to ensure that the element of "proximity" is made known to the court so that it may take into account whether any particular bail conditions are appropriate to prevent the likelihood of further offending by the defendant. Where the file is silent about this, but where the prosecutor believes that there may be such an element of proximity, the police should be asked to clarify the position.

It sometimes comes to the attention of The CPS that there may be inappropriate contact by a third party, or a suggestion of harassment of the victim, a witness, or someone connected to either, which may be related to possible actions by the defendant. The defendant may be in custody or on bail with conditions that should stop the defendant from engaging in the contact or harassment complained of. If this happens, The CPS will ask the police to investigate with a view to determining whether there is any evidence of collusion that might enable charges to be brought against any person involved.

In all cases of homophobic crime, it is essential that the victim is kept informed by the police about the bail status of the defendant. Accordingly, prosecutors must ensure that they notify the police of the bail status of the defendant as soon as possible after the bail hearing and of any amendments to that status arising out of later hearings where appropriate.

Anonymity

Prosecutors should refer to sections 1 – 4 Sexual Offences (Amendment) Act 1992 for the definitive list of sexual offences in respect of which the victim is entitled to anonymity in the press.

In addition, prosecutors will be aware of the line of authorities that allow the courts to regulate their own conduct, one aspect of which can be the granting of anonymity to victims or witnesses when giving evidence.

Blackmail apart, departures from the usual practice of requiring the witness to give their full name before the start of their examination-in-chief will be rare. However, there are cases where anonymity has been granted and prosecutors should consider the most up-to-date texts to review the latest authorities. Prosecutors will clearly want to focus on those cases in which the victim or witness has been allowed to remain anonymous because otherwise grave difficulty may be suffered in obtaining the necessary evidence in any future case of a similar nature. Arguably, this is the position with regard to a substantial number of cases involving a homophobic element.

However, it would be unwise to raise the hopes of any individual victim or witness by suggesting that anonymity is likely to be granted.

Measures Available to Assist Witnesses

Although at the time of publication of this guidance, we do not have a clear view about how s46 Youth Justice and Criminal Evidence Act 1999 is likely to be interpreted, prosecutors may find considerable help in making applications under this section which is designed to restrict reports about certain adult witnesses in criminal proceedings. Although this section does not provide anonymity in court, it does provide some protection from the reporting of matter in the media. It is anticipated that s46 will come into effect before the end of 2002 but prosecutors should check with the relevant authorities the exact implementation date of this section before placing reliance on it.

This section provides the courts with a power to make reporting directions for the purpose of protecting the identities of vulnerable witnesses, on application by a party to the proceedings. The court applies a two-stage test and, where appropriate, then has to exercise its discretion. The court must determine first that the witness is eligible for protection and secondly that a reporting direction would be likely to improve the quality of the witness' evidence or the level of co-operation to a party. If these tests are satisfied, the court has a discretion whether to make an order.

Prosecutors will want to study carefully the conditions laid down in s46 and apply them to the circumstances of each witness in a case involving a homophobic element. Where a witness is fearful of giving evidence because their sexual orientation or gender will become known, it may well be the case that the witness is eligible for protection under s46(3).

A reporting direction is a direction that no matter relating to the witness shall during the witness' lifetime be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.

In appropriate cases, prosecutors should make applications under s46 so that The CPS may see how the courts are likely to interpret this section. The text of s46 is set out in annex D of this guidance.

Aside from the granting of anonymity or a reporting direction, prosecutors will bear in mind that in 1996 Bingham LJ approved the Statement of National Standards of Witness Care in the Criminal Justice System (reported at 161 JPN353) which was issued by the Criminal Justice Consultative Council's trials Issues Group. The statement provides that unless it is necessary for evidential purposes, witnesses should not be required to disclose their addresses in open court. This may be of particular concern for members of the LGBT communities who may fear that the disclosure of their address might lead to reprisals. CPS staff should be able to reassure members of the LGBT communities about this.

Although members of the LGBT communities have concerns about protecting their identity at court or in the media, they may also have issues around the way in which they are required to give their evidence in court.

The introduction of special measures to help witnesses give the best evidence that they can is very recent and it remains too early to tell the extent to which the measures will be used.

Prosecutors will want to consult the most up-to-date guides to gauge the extent to which special measures might be a viable option in the case in hand in an effort to meet the concerns of the victim or witness.

Victim And Witness Care

The way in which victims and witnesses should be treated when at court by counsel representing the prosecution is set out in the Bar's Code of Conduct.

In cases where the victim is prepared to support the prosecution, it is also important for the court to be made fully aware of the effect that the crime has had on the victim. The fact that the victim may make a personal statement outlining the impact of the crime on them should be made known to the victim and the prosecutor should ensure that the victim avails him or herself of the opportunity to make such a statement if they choose to do so.

Direct communication with victims

In an extension of The CPS' original policy, victims of homophobic crime should be offered a meeting so that the prosecutor may explain the reason for the discontinuance of, or substantial alteration to, the charge in which they are involved.

However, 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 and/or contacting The CPS LGBT Network could provide useful information about how best to approach victims in these instances.

Monitoring

The CPS has committed itself to monitoring the impact of its public statement on cases with a homophobic element. This will have a national dimension about which Areas will be advised in due course.

Locally, however, senior management teams will want to 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. Local senior managers will also want to make sure that they have established links with their local police force so that the required background information is forthcoming in appropriate cases. 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. Additionally, under the Race Relations (Amendment) Act 2000, The CPS, like other public bodies, has a general duty in its employment and service delivery functions 'to eliminate unlawful discrimination, promote equality of opportunity and promote good race relations between people of different racial groups.' In addition, there are specific duties to monitor ethnically the provision of services and to assess the impact of our policies on victims, witnesses and defendants. As part of the commitment made under The CPS' Race Equality Scheme, policies will be changed, if monitoring shows an adverse impact on any ethnic groups. Within the scope of The CPS public policy statement on prosecuting cases with a homophobic element, monitoring will be undertaken to assess the impact of this policy on black and minority ethnic LGBT communities.

Community Engagement

At the heart of any set of measures designed to strengthen the confidence levels of the LGBT communities in The CPS must be the creation of strong lines of communication between The CPS and the LGBT communities.

Effective community engagement has to take place at a local level if individual members of the LGBT communities are going to start to put their trust in us, in the work that we do; and in the decisions that we take.

The CPS/HMCPSI Joint Standing Committee on Good Practice has already issued guidance on how to create and maintain effective community engagement programmes, and the principle set out in that document are directly applicable to engagement with the LGBT communities.

Local managers should identify and establish links with local LGBT representative groups in their Area and ask for an opportunity to explain the policy statement that The CPS has issued. It is important not to create false expectations about what the criminal justice system can offer members of the LGBT communities who are affected by crime. But, at the same time, explaining how the system actually works to members of the LGBT communities and LGBT organisations will begin to allow LGBT people and those organisations the opportunity to ask questions about the relative roles of The CPS and the police and to start to see members of The CPS in a more supportive light.

Community engagement is both an ongoing and dynamic process: there is never a time when one can say that community engagement has been completed. Local managers will need constantly to be satisfied that they have made contact with all the appropriate groups in their Area.

The local police may prove to be an extremely useful source of information about local LGBT groups, with which they have built up joint working or partnership links.

Some local councils have joined with the police and their local LGBT communities to set up multi-agency groups which consider homophobic and transphobic crime. Local CPS managers will find such groups helpful in forming links with the LGBT communities.

Talking to CJS Partners

Engagement does not start and end with the LGBT communities. By publishing this public statement, The CPS is at the leading edge of nationally agreed policy with regard to homophobic incidents. Our partner agencies in the criminal justice system and in the voluntary sector are at varying stages of developing their own approach to the LGBT communities. The CPS has an important role to play in bringing the issues surrounding homophobic crime to the attention of our local criminal justice partners.

Chief Crown Prosecutors will want to discuss with their Chief Constables at a strategic level the way in which the local police force and the local CPS can work together to ensure that cases with a homophobic element receive the appropriate level of care and consideration as set out in the public statement.

Many police forces have established Lesbian and Gay Liaison Officers (LAGLOs), LGBT Liaison Officers (LGBT LOs) or their equivalents as part of their drive to engage with their local LGBT communities. An important first step is for local CPS managers to find out whether such officers exist; what their knowledge is of local LGBT groups; and what their remit is in terms of casework support for members of the LGBT communities.

Establishing effective casework links between local police forces and local CPS offices is a necessary step in delivering the policy that The CPS has published.

More broadly, CCPs will want to ensure that The CPS' policy is made known to the Chief Officers of their other partner agencies: the Justices' Chief Executive; the Clerk to the Justices; the Group Manager in the Crown Court; and the Chief Officer of Probation. CCPs will also want to take an early opportunity of explaining the policy and the rationale for it to local Resident Judges and local Chairmen and Chairwomen of the Petty Sessional Divisions of magistrates within their Area.

It may be that for many agencies, Judges and magistrates this will be the first occasion that they have considered the needs of their local LGBT communities; through The CPS' early liaison with local LGBT communities, we should be at the forefront of creating local partnership initiatives so that all criminal justice agencies support their LGBT communities.

Further guidance will be issued in due course to help Areas build on their initial links both within the LGBT communities and with their local partners in this regard.

Annex A

Glossary of Terms used in this Document

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 in this glossary some terms that are in current usage and their meanings when this public statement was published in 2002.

Bisexual

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

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. (Many gay men prefer to be called "gay" rather then homosexual).

Gender Identity

A person's sense of him, or herself, as being masculine or feminine.

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 so severe as hatred. It is enough that people do something or abstain from doing something because they do not like LG or B people.

Lesbian

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

Out

The term used by lesbians, gay men and bisexuals 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 2 Sexual Offences (Amendment) Act 1992 in respect of which victims are allowed to remain anonymous.

Sexual orientation

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

Trans people

A phrase which is intended to include trans sexual, trans gender and transvestite people.

Transgendered

A person whose biological gender is not the same as the gender they own as theirs. Some people have medication and surgery to alter their bodies so that they will fit their personal identity and sense of self.

Transphobic

Annex B

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 so severe as hatred. It is enough that people do something or abstain from doing something because they do not like trans people.

Some Statistical Information about Homophobic Crime In recent years, there are have been at least three reports which have tried to quantify the volume of incidents which were perceived as being homophobic. These are:

• the National Advisory Group [NAG] Survey, published in 1999;
• the GALOP Survey of London Youth, published in 1998; and
• the Stonewall Study, published in 1996.

Their principal findings are set out below.

Total Number of Questionnaires returned and age range of respondents

	Number	Age Range
NAG	2,656	14 to 83 years (median age 31)
GALOP	202	Under 25s
Stonewall	4,000 +	18 to 60 years

Sample Profile

	Male	Female		Transgender	Not Known
NAG	64.1%	35.2%		0.8%
GALOP	68%	31%			1%
	Gay Men	Lesbians	Bisexual
Stonewall	72%	21%	7%

Volume of homophobic incidents

Of those who responded, the following indicated that they had been subjected to the following types of incident:

	NAG	GALOP			Stonewall
	Total	Total	Male	Female	Total	Male	Female
Verbal Abuse	45%	83%	82%	89%	73%
Physical Assault	21%	47%	49%	44%	32%	24%	34%
Threats/Intimidation	20%	31%	29%	34%	32%
Damage to Property	6%
Rape	5%
Sexual		41%	31%	66%
Theft	2%
Blackmail	1%

The Stonewall survey also collected data specifically from young people and reported that 48% of young people had been subjected to acts of violence; 61% had received threats or been the subject of blackmail; and 90% had been subjected to verbal abuse.

GALOP's findings indicated that 68% of perpetrators of physical abuse were known to the victim; 53% of perpetrators of sexual abuse were known to the victim; and 89% of perpetrators of harassment were known to the victim.

The NAG survey found that 38% of their respondents had been the subject of a homophobic incident in the previous year. Within the previous 12 months, 52% of respondents had been subject to verbal abuse; 20% to threats or intimidation; and 16% to physical assault. Four percent of respondents had been raped during the previous year.

Homophobic Incidents in Schools

"Playing It Safe", published in 1997, reported on the extent to which homophobic incidents occur in schools.

Coupled with GAOP's survey on London Youth, the following statistics were reported.

	Playing It Safe	GALOP
Under 18s – suffered violence	48%	35%
Subjected to verbal abuse	61%	35%
Called names because of their sexuality	90%

Incidence of reporting crime

Of the incidents that occurred during the previous year, only 17.9% were reported according to NAG; only according to Stonewall.

In NAG's research, of those who reported incidents:

• 45% said that the service that they received was very poor or poor;
• 21% said that the service was adequate; and
• 34% said that the service was good to very good.

NAG: Why people do not report crime

The ten most common reasons given by victims who did not report the incident to the police:

• the incident was not serious enough;
• the police would not do anything if it was reported – this was given as the reason for not reporting an allegation of rape;
• I expected a negative reaction from the police;
• the police could not do anything if I did report it;
• I dealt with the incident myself;
• I would be charged with a crime myself;
• by reporting it, other people will find out that I am gay;
• I am not confident enough to report the crime;
• I accept that I will be abused;
• I am frightened of retribution from the attackers.

The two most common reasons why victims who did report, would not do so again:

• the police were not interested or did nothing;
• the police were homophobic.

The number of people who will suffer a homophobic incident in one year is estimated to be 38% of LGBT people.

Annex C

Publications

Members of The CPS might find it helpful to read some publications that deal with LGBT issues in depth. This is not a comprehensive list of such publications but it provides a starting point for those who want to read further.

Advising Gay and Lesbian Clients – a Practical Guide for Lawyers – by Barlow, Bowley, Butler, Cox, Davies, Gryk, Hamilton, Smith and Watson. Published in 1999 by Butterworths: ISBN 0 406 90303 4. This book provides detailed and practical coverage of all the issues of specific concern to gay and lesbian clients.

Breaking the Chain of Hate – by Wake, Wilmott, Fairweather and Birkett. Published in 1999 by the National Advisory Group. This reports on a national survey examining levels of homophobic crime and community confidence towards the police service.

GALOP Publications (various), including Telling it like it is – published in 1998; The Low Down Black Services Needs Assessment – published in 2001; and Getting Lesbians onto the Agenda – published in 1997. These look at specific issues within the LGBT communities.

Greater Manchester Lesbian and Gay Policing Initiative Study – published in 1999 by GML&GPI Study. This recites the experiences of lesbians of violence and harassment based on a questionnaire of local lesbians.

Hidden Targets – published in 2001 by the Southampton Gay Community Health Service. This sets out lesbian women's and gay men's experiences of homophobic crime and harassment in Southampton.

Identifying & Combating Hate Crime – published in 2000 by the Association of Chief Police Officers. This is a manual which sets out information on preventing and dealing with hate crime in response to the Stephen Lawrence Inquiry.

Investigation of Racist, Domestic Violence and Homophobic Incidents – published in 2000 by the Metropolitan Police. This provides a guide to the minimum standards required in such investigations.

Legal Queeries – lesbian, gay and transgender legal studies with Moran, Monk and Beresford as editors. Published in 1998 by Cassell: ISBN 0-304-33864-8. This examines LGBT issues in relation to the law.

Playing it Safe – responses of Secondary Schools Teachers to Lesbian, Gay, and Bisexual Pupils by Douglas, Nicola and others. Published in 1999 by Stonewall. This contains information on how schools can tackle homophobia.

Queer Bashing – a national survey of hate crimes against lesbians and gay men. Published in 1996 by Stonewall. A document which sets out lesbians' and gays' experience of violence.

Supporting Inclusive Communities – lesbians, gay men and local democracy – published in 2001 by the Local Government Association: ISBN 1 84049 226 0. These are guidelines which set out the areas where authorities need to consider how they relate to lesbian and gay communities.

Tackling Homophobia creating safer Spaces – published in 1999 and available at www.schools-out.org.uk. This sets out the issues and includes statistics.

Transvestism, Transsexualism and the Law – by McMullan and Whittle. Published in 1994 by the Beaumont Trust: ISBN 0952135728. This provides a basic guide to the issues.

Violence against Lesbians – published in 2001 and available at www.querverlag.de. It is printed in Germany: ISBN 3-89656-063-8. This reports on the first European conference on the issue and it contains a chapter giving information on British projects dealing with homophobia.

Without Prejudice Community Safety Practice Briefing – published in 2001 by NACRO. This explains how local authorities and other public bodies need to respond to the various pieces of legislation regarding LGBT issues.Please check with your Constabulary's liaison officers and the community safety unit of the local authority for your own local groups in addition to these listed below.

Annex D

Youth Justice and Criminal Evidence Act 1999

Reports relating to adult witnesses

Power to restrict reports about certain adult witnesses in criminal proceedings

46.

1) This section applies where –

• (a) in any criminal proceedings in any court (other than a service court) in England and Wales or Northern Ireland, or
• (b) in any proceedings (whether in the United Kingdom or elsewhere) in any service court, a party to the proceedings makes an application for the court to give a reporting direction in relation to a witness in the proceedings (other than the accused) who has attained the age of 18.

In this section "reporting direction" has the meaning given by subsection (6).

2) If the court determines –

• (a) that the witness is eligible for protection, and
• (b)that giving a reporting direction in relation to the witness is likely to improve
  • (i) the quality of evidence given by the witness, or
  • (ii) the level of co-operation given by the witness to any party to the proceedings in connection with that party's preparation of its case,

the court may give a reporting direction in relation to the witness.

3) For the purpose of this section a witness is eligible for protection if the court is satisfied -

• (a) that the quality of evidence given by the witness, or
• (b) the level of co-operation given by the witness to any party to the proceedings in connection with that party's preparation of its case, is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings.

4) In determining whether a witness is eligible for protection the court must take into account, in particular –

• (a) the nature and alleged circumstances of the offence to which the proceedings relate:
• (b) the age of the witness:
• (c) such of the following matters as appear to the court to be relevant. Namely
  • (i)the social and cultural background and ethnic origins of the witness,
  • (ii) the domestic and employment circumstances of the witness, and
  • (iii) any religious beliefs or political opinions of the witness:
• (d) any behaviour towards the witness on the part of -
  • (i)the accused,
  • (ii) members of the family or associates of the accused, or
  • (iii) any other person who is likely to be an accused or a witness in the proceedings.

5) In determining that question the court must in addition consider any views expressed by the witness.

6) For the purposes of this section a reporting direction in relation to a witness is a direction that no matter relating to the witness shall during the witness's lifetime be included in any publication if it is likely to lead members of the public to identify his as being a witness in the proceedings.

7) The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publications is likely to have the result mentioned in subsection(6) include in particular –

• (a) the witness's name,
• (b) the witness's address,
• (c) the identity of any educational establishments attended by the witness,
• (d) the identity of any place of work, and
• (e) any still or moving pictures of the witness.

(8) In determining whether to give a reporting direction the court shall consider –

• (a) whether it would be in the interests of justice to do so, and
• (b) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.

(9) The court or an appellate court may by direction ("an excepting directions") dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction if –

• (a) it is satisfied that it is necessary in the interests of justice to do so, or
• (b) it is satisfied -
  • (i) that the effect of those restrictions is to impose a substantial and unreasonable restrictions on the reporting of the proceedings, and
  • (ii) that it is in the public interest to remove or relax that restriction;

but no excepting direction shall be given under paragraph (b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.

(10) A reporting direction may be revoked by the court or an appellate court.

(11) An excepting direction –

(a) may be given at the time the reporting direction is given or subsequently; and

(b) may be varied or revoked by the court or an appellate court.

(12) In this section –

• (a) "appellate court", in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;
• (b) references to the quality of a witness's evidence are to its quality in terms of completeness, coherence and accuracy (and for this purpose "coherence" refers to a witness's ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively);
• (c) reference to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.

General Note

This section extends the protection from identification of witnesses aged 18 or over. The provisions apply only to criminal proceedings in a court in England and Wales or in Northern Ireland or in a service court (defined in s.63(1)) anywhere.

A witness is eligible for protection where fear or distress (caused by the risk of being identified by the public as a witness in the proceedings) is likely to diminish either the quality of the witness's evidence (defined in subs.12) or the level of cooperation given by the witness to any party in connection with that party's preparation of its case (see the partial definition in subs.12) (subs. 3). In assessing the eligibility of the witness, the court will take into account the issues listed in ss.4 and 5 which relate to the offence, the witness and the conduct of the accused or others towards the witness. If a witness is eligible for protection and the court is satisfied that restricting reporting is likely to improve either the quality of evidence or the extent of co-operation, the court may give a reporting direction (subs 2). In making that decision, the court must take into account both the interests of justice and the public interest in avoiding restrictions on reporting (subs. 8). See s.52 for the factors to be taken into account in deciding the public interest.

The direction will prohibit anything being published which could lead to the identification by the public of the witness (subs.6). Subject to the power of the court (or an appellate court (defined in subs.12)) to revoke the direction (subs.10) (which can be at any time not just during the case), the restriction will last for the lifetime of the witness (subs.6). However, a witness may waive that protection by notice in writing (see s.50(7) and (8)0. If a reporting restriction is made, its extent can be restricted by an excepting directions (subs.9). The extent of the exceptions will be determined by both the interests of justice and the public interest. The conclusion of the case will not in itself justify such a direction (subs.9) but may be one of a number of factors. An excepting direction may be varied or revoked by the court or by an appellate court (subs.11). See s.50 for defences to offences under this section.

Annex E

Some Projects and Places that deal specifically with Homophobic Incidents and Crime in relation to the CJS

Please check with your Constabulary's liaison officers and the community safety unit of the local authority for your own local groups in addition to these listed below.

GALOP – Confidential helpline for lesbian, gay men and bisexuals, offering assistance in dealing with homophobic violence and the police.
Unit 2G, Leroy House, Essex Road, London, N1 3ZD
Phone: 0207 704 6767
Fax: 0207 704 7607
Shoutline help number: 0207 704 2040
Web site: www.galop.org.uk
E-mail address: galop@onetel.net.uk

Intercom – South West LGBT community group; can provide national consultancy on community safety, homophobic crime and CJS issues
PO Box 285, Exeter, EX1 2YZ
Phone: 01 392 20 10 15
Fax: 01 392 20 16 30
Web site: www.intercomtrust.org.uk
E-mail address: safety@intercomtrust.org.uk

Lesbian and Gay Law – The website has many links on LGB issues and the law.
Website: www.sbu.ac.uk/stafflag/law.html

Lesbian & Gay Switchboard – 24-hour national information, advice and support line. Despite its title, it also caters for bisexuals and men who have sex with men. Has website that list groups and has a search engine to find LGBT groups nationally.
Phone: 0207 837 7324
Web site: www.queery.org.uk

Liberty – An organisation set up to protect civil liberties and promote human rights.
21 Tabard St, London, SE1 4LA
Phone: 0808 808 4546 Monday & Wednesday 2-5 Tuesday & Thursday 10-1
Web site: www.liberty-human-rights.org.uk
E-mail address: info@liberty-human-rights.org.uk

National Advisory Group / Policing Lesbian & Gay Communities – The National Advisory Group maintains a network of individuals, organisations and practitioners involved in the development and delivery of policing services to lesbian and gay communities. Much work focuses on the response to hate-motivated crime and violence and through the NAG best practice is shared and disseminated.

PO BOX 100, Manchester M22 4WJ
E-mail address: NAGPLGC@aol.com

Press for Change – Political pressure group dedicated to achieving full civil equality for transsexuals. It does this through campaigning, legal action and social education. Information packs available.
BM NETWORK, London, WC1N 3XX
Phone: 0161 247 6444
Fax: 0161 432 8454
Web site: www.pfc.org.uk
E-mail address: letters@pfc.org.uk

LGB Forum CYMRU – The only all Wales lesbian, gay and bisexual organisation which works in partnership with Stonewall Cymru to be a voice for LGB people at the National Assembly, with local authorities and in the Welsh media.
Phone: 029 20237744
Web site: www.stonewall.org.uk
E-mail address: cymru@stonewall.org.uk

Stonewall – Civil rights organisation for lesbians and gay men.
46-48 Grosvenor Gardens, London, SW1W 0EB Phone: 0207 881 9440
Fax: 0207 881 9444 Web site: www.stonewall.org.uk
E-mail address: info@stonewall.org.uk

Places and Projects that have Information and Contacts

Broken Rainbow – LGBT organisation which works on same sex domestic violence.
The hotline number: 07812 644 914
E-mail address: lgbtdv@btopenworld.com

Consortium – Umbrella organisation of LGB voluntary and community organisations.
2 Plough Yard, Shoreditch High Street, London, EC2A 3LP
Phone: 0207 422 8611
Fax: 0207 426 0051
Web site: www.lgbconsortium.org.uk
E-mail address: admin@clgb.org.uk

Lesbian and Gay Employment Rights – Advice and information for lesbians and gay men having problems at work regardless of whether these problems are related to their sexual orientation. Also offers training for employers on lesbian and gay issues in the workplace and produces publications on these topics.
Unit 1G Leroy House, 436 Essex Road, London, N1 3QP
Phone: 0207 704 2205
Fax: 0207 704 6067
Lesbian helpline: 0207 704 8066;
Gay men's helpline: 0207 704 6066.
Minicom available on both lines
Web site: www.lager.dircon.co.uk

FFLAG Families and Friends of Lesbians and Gays – National voluntary organisation which provides support for families with lesbian and gay children. It also has information for voluntary and statutory bodies on family issues, young people, including situations involving homophobic crime.
PO Box 84, Exeter EX4 4AN
Opening times: 10.00 am - 8.00 pm
Phone: 01392 279546
Web site: www.fflag.org.uk
E-mail address: info@fflag.org.uk

LAGPA: Lesbian and Gay Police Association – National network of L&G police officers and support staff. LAGPA works towards equal rights and opportunities for L&G police service employees and towards improving relations between the police services and the LGB communities.
BM LAGPA, London, WC1N 3XX
24 hour infoline: 070 2091 1922 Fax: 070 2096 3922

Lesbian, Gay, Bisexual and Trans People Advisory Group to the Metropolitan Police – Independent panel established to provide advice on all aspects of the work of the Metropolitan Police as it impacts on the LGBT communities.
Web site: www.lgbtag.org
E-mail address: community@lgbtag.org

Bar Lesbian And Gay Group (BLAGG) – BLAGG is an equal opportunities group, the aim of which is to raise awareness of lesbian and gay, bisexual and transgendered issues, to lobby for change, and, as a Bar group, to offer support and advice to potential barristers, pupils and students.
24 hour Phone: 020 7353 1315
E-mail address: Blagg_uk@yahoo.co.uk

Out-Side-In – A support and rehabilitation structure for LGBT inmates in UK penal institutions.
PO box 119, Orpington, Kent BR6 9ZZ
Phone: 0168 983 5566

Schools Out! – National network supporting lesbian, gay, bisexual and transgendered educational workers.
B.M Schools Out! National, London, WC1N 3XX
Phone: 0207 635 0476 / 0116 251 0655
Web site: www.schools-out.org.uk
E-mail address: secretary@schools-out.org.uk

Survivors UK – A UK organisation which helps male survivors of sexual abuse and rape by providing a telephone helpline, 1:1 counselling, and group counselling.
16 Swan Court, 9 Tanner Street, London SE1 3LS
Office Phone: 020 7357 6222
Fax: 020 7357 7766
Helpline: 020 7357 6677 Tuesday 7-10pm
Web site: www.survivorsuk.org
E-mail address:info@surviviorsuk.org

Terence Higgins Trust – National organisation, which supports men who have sex with men. Members of the gay men's health promotion team are available to supply support and information.
Phone: 0845 122 1200 Web site: www.tht.org.uk
E-mail address: info@tht.org.uk

Useful Resources from LGBT Communities

Al–Fathia UK – A LGBT support group for Muslim LGBT people which serves as a bridge between communities.
424 37 Store St. London, WC1E 7BS
Adnan Ali +44 (0)7747636010
E-mail address: alfatiha_london@hotmail.com

Albert Kennedy Trust – Advocacy, advice, support and placement for homeless lesbian, gay & bisexual young people.
The City Centre Project, 52 Oldham Street, Manchester, M4 1LE
Phone: 0161 228 3308
Web site: www.akt.org.uk
E-mail address: Manchester@akt.org.uk
and at Unit 305A, Hatton Square, 16-16A Baldwins Gardens, London, EC1N 7RJ
Phone: 0207 831-6562 Text phone: 07786 881944
Web site: www.akt.org.uk
E-mail address: London@akt.org.uk

The Big UP Group at GMFA – Resources, information, and training for black gay and bisexual men. Deals with issues concerning the sexual health and well-being of African and Caribbean men who have sex with men.
Unit 43 Eurolink Centre, 49 Effra Road, London, SW2 1BZ
Phone: 0207 738 6872
Fax: 0207 738 7140
Web site: www.bigup.co.uk
E-mail address: bigup@gmfa.demon.co.uk

The Gender Trust – Information and support for transsexual people. Education and support for professionals and the criminal justice system.
PO Box 3192, Brighton, BN1 3WR Administration
Phone: 01273 234 024 Monday - Thursday 9am – 4pm
Information Line: 07000 790347
Web site: www.gendertrust.org.uk
E-mail address: info@gendertrust.org.uk

ILGA–Europe – A group with knowledge of legislation and policies across Europe.
Avenue de Tervueren 94, B-1040 Brussels
Phone: +32 2 732 54 88
Fax: +32-2 732 51 64
Web site: www.ilga-europe.org
E-mail address: info@ilga-europe.org

Lesbian Information Service
Phone: 0170 681 7235
Web site: www.lesbianinformationservice.org

LGCM – National Lesbians & Gay Ecumenical Christian Organisation which challenges homophobia in the churches and supports LGBT Christians.
Oxford House, Derbyshire Street, London, E2 6HG
Phone: 0207 7391249
Web site: www.lgcm.org.uk
E-mail address: lgcm@lgcm.org.uk

The Lesbian and Gay Foundation – Based in the North West, this offers a range of social, support and information services and resources to LGBT people, friends, families and their partners. The LGF help line is accredited to the community legal services quality mark (information level).
Unity House, Pritchard Street, off Charles Street Manchester M1 7DA
LGF Help line - 0161 235 8000 (Open every night 6-10pm)
LGF Admin line - 0161 235 8035
Fax - 0161 235 8036
Web site: www.lgfoundation.org.uk
E-mail address:info@lgfoundation.org.uk

Mermaids – This group is for children and teenagers who have gender identity problems, their families, friends, carers, professionals etc.
BM Mermaids, London, WC1N 3XX
Phone: 07020 935066 12noon-9pm.
Web site: www.mermaids.freeuk.com
E-mail address: mermaids@freeuk.com

NAZ – This is a sexual health and HIV project which works exclusively with black and minority ethnic communities in London and which is able to address LGBT issues relative to these communities.
Palingswick House, 241 King Street, London, W6 9LP
Phone: 0208 741 1879
Fax: 0208 741 9609 Web site: www.naz.org.uk
E-mail address: naz@naz.org.uk

Northamptonshire Lesbian, Gay and Bisexual Alliance Voluntary Organisation which unites and supports lesbian, gay and bisexual people in Northamptonshire.
1st Floor Charles House, 61-69 Derngate, Northampton, NN1 1UE
Phone/Fax: 01604 628986
Web site: www.nlgba.com
E-mail address: info@nlgba.com

Pace – Advocacy and counselling service for lesbians and gay men.
Phone: 0207 700 1323
Fax: 0207 609 4909
Web site: www.pacehealth.org.uk
E-mail address: pace@dircon.co.uk

Regard – National organisation of disabled lesbian, gay, bisexual and trans people who give advice and support on issues facing disabled LGBT people.
Unit 2J Leroy House, 436 Essex Road, London, N1 3QP Phone: 0207 688 411
Web site: www.regard.dircon.co.uk
E-mail address: regard@dircon.co.uk

Crown Prosecution Service
November 2002.

Further information: Prosecution Policy Division, Crown Prosecution Service, Rose Court, 2 Southwark Bridge, London, SE1 9HS. A public booklet, Policy for Prosecuting Cases of Homophobic Crimesis also available.'