Guidance on prosecuting cases of racist and religious crime
Introduction
We are publishing a Public Policy Statement on prosecuting racist and religious crime to make clear our commitment to deal effectively with this type of offending and to let the community at large know what they can expect from us. This is the second edition and reflects the changes in legislation, case law, and CPS procedures that have occurred since the first edition was published in July 2003.
This guidance document is designed to be read alongside 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.
It is complementary to our existing guidance on the legislation on the CPS Intranet - Legal Guidance.
Purpose of a Public Policy Statement on prosecuting racially and religiously aggravated crime
The Public Policy Statement is needed to support:
- the vision in the 'Strategic Plan for Criminal Justice 2004-2008' that: "the public will have confidence that the Criminal Justice System is effective and that it serves all communities fairly". This includes increasing the confidence of black and minority ethnic communities, as well as increasing year on year the satisfaction of victims and witnesses, whilst respecting the rights of defendants;
- the recommendations made by Her Majesty's Crown Prosecution Service Inspectorate (HMCPSI) in its Thematic Report on Casework having a Minority Ethnic Dimension (April 2002) which are designed to improve the way that we deal with such cases, and the Follow Up Review of CPS Casework with a Minority Ethnic Dimension (April 2004);
- the demonstration of our commitment to promoting race equality in accordance with our obligations as a public authority under the Race Relations (Amendment) Act 2000, as set out in the CPS Single Equality Scheme (December 2006).
Note: The CPS Single Equality Scheme 2006-2010 builds on the second CPS Race Equality Scheme published in 2005 and sets out our Disability and Gender Equality Actions as well as our developing legal obligations on religion or belief. The Single Equality Scheme is available in the Publications/Equality and Diversity Policy and Guidance section on this website.
This policy statement and the guidance also contribute to our efforts to raise awareness of issues relating to hate crime generally as demonstrated already by our publishing statements and guidance on prosecuting domestic violence, prosecuting cases of homophobic and transphobic crime and prosecuting cases of disability hate crime.
Impact of racist and religious crimes on individuals and communities
We have published our policy statement and guidance because we want victims and their families, as well as the general public, to be confident that the CPS understands the serious nature of this type of crime and the real and lasting effects it has on individuals, communities and the whole of society. By letting people know what they can expect from us when we prosecute racist or religious crime, we aim to improve confidence in the criminal justice system.
Publishing a policy statement and guidance also helps to raise awareness of the relevant issues for prosecutors to assist them when making decisions about prosecuting racist or religious crime.
We have consulted people from black and minority ethnic communities and faith communities and taken their comments into account in writing our policy and guidance. By doing this, we have gained a better understanding of the things that are important to them and what we need to know about.
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. Activity by extremist groups in an area may also manifest itself on the terraces at football matches.
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.
Racist and religious crime - the legislation
We can mean any one of a number of different types of offence when we use the term 'racist or religious crime'.
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.
Two of the most significant pieces of legislation are the:
- Crime and Disorder Act 1998 (as amended by the Anti-terrorism, Crime and Security Act 2001); and
- Public Order Act 1986 Part III.
There are other offences, such as racialist chanting at football matches and religious offences which can be committed at places of religious worship.
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 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. There has been a legal ruling that Jews and Sikhs are included in the definition of a racial group [Mandla v. Dowell-Lee [1983] 2 AC 548].
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:
- 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
- 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 defendant's conviction, held that the definition of a racial group clearly went beyond groups defined by their colour, race, or ethnic origin. It encompassed both nationality (including citizenship) and national origins. The statute intended a broad non-technical approach. Furthermore the victim might be presumed by the offender to be a member of the hated group, even if s/he was not. Also, the fact that the offender's hostility was based on other factors as well as racism or xenophobia was irrelevant.
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).
Part III Public Order Act 1986 - Incitement to Racial Hatred
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 caselaw 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 robustly to 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 to the Counter Terrorism Division in CPS Headquarters. Referral means the submission of a report which is sufficient to enable the Counter Terrorism Division 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 the Counter Terrorism Division within seven days. If it is decided that the case should be prosecuted as an offence of incitement to racial hatred, the Counter Terrorism Division will take over the conduct of the case from the Area. If the Counter Terrorism Division 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 the Counter Terrorism Division 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.
Racial and Religious Hatred Act 2006 - Stirring Up Religious Hatred
This Act received Royal Assent on 16 February 2006, and 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 (above).
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 enshrined in Section 29J of the Act, which "... 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 properly 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.
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.
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 is an indictable offence at common law. It is an attack on the Christian religion, either orally or in writing, made in terms that are likely to shock or outrage the feelings of most Christian believers. There have been very few prosecutions for this offence in recent times. Prosecutors should consider carefully any potential case of blasphemy and make a decision based on the evidence available.
There are several other statutory offences designed to protect acts of worship of various kinds and, although they are somewhat archaic, they are nonetheless useful offences for prosecutors to bear in mind when particular circumstances apply.
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.
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 person's 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.
By using these definitions, our intention is to raise levels of confidence and therefore the level of reporting of racist incidents, and this has proved to be the case. Since we began to keep records in 1996, the number of cases we have prosecuted for racist crime has more than doubled and there continues to be a steady increase every year.
Religiously aggravated offences were introduced in December 2001. To collect information about how this aspect of the law is working, we currently track these cases through the CPS Racist Incident Monitoring Scheme (RIMS) by asking CPS Areas to indicate on the Racist Incident Data Sheet (RIDS form) that the case was a religious rather than a racist incident. Currently, any religiously aggravated crimes, where the Code tests are considered to be met, are referred to the Principal Legal Advisor for him to approve the prosecution decision. This is so that the Director may report to the Attorney General on the effectiveness of the new offences.
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.
The stages that are identified in the following paragraphs are especially important.
The case should be referred to the Area's Racist and Religious Crime Co-ordinator to be reviewed or supervised by a particularly experienced or "specialist" prosecutor.
Training for CPS staff has been developed to familiarise and raise awareness of issues relating to racially and religiously aggravated crime and all CPS Areas have nominated at least one member of staff to be a lead trainer to deliver this training.
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.
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.
From April 2007, ACPO has agreed that police forces will record the religion or belief of victims and defendants (MG forms have been amended accordingly). 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.
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 tests set out in the Code for Crown Prosecutors. We make charging decisions in accordance with the Full Code Test, other than in the limited circumstances where the narrower Threshold Test applies.
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 5.9k gives the following example of public interest factors in favour of prosecution:
"the offence was motivated by any form of discrimination against the victim's ethnic or national origin, disability, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of these characteristics."
The charges that we decide to pursue should always reflect the seriousness of what took place; any element of pre-meditation or persistence in the defendant's behaviour; the provable intent of the defendant; and the severity of any injury suffered by the victim. Reference should always be made to any relevant Charging Standards, which are available to prosecutors in the CPS Legal Guidance. The charges must enable us to present the case clearly, and they must give the court the power to impose the appropriate sentence.
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 5.12) requires prosecutors, when considering the public interest, to: "take into account the consequences for the victim of the decision whether or not to prosecute, and any views expressed by the victim or the victim's family."
This is repeated in the Prosecutor's Pledge, which was introduced by the Attorney General on 21 October 2005, and which states that prosecutors will:" take into account the impact on the victim or their family when making a charging decision."
As in all cases, the best casework decisions in cases of racist or religious crime 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.
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.
Victim Personal Statements
A Victim Personal Statement (VPS) is a statement made by a victim of crime explaining the effect that the crime has had on him or her. In the statement, victims can describe how they have been affected by the crime. They can talk about their wishes and needs during the case and any concerns they may have as a result of the offence, for example, about safety, intimidation or bail. They can mention their support (or absence of support) for the prosecution and request for help from any of the support agencies. In this way, the court can better understand not only the crime but also the context in which it occurred. This statement is optional, and the victim should be asked whether or not he or she wishes to make such a statement, or if he or she requires help to make a statement from a support worker or family member. This statement can be made at any time and it is possible to make more than one statement. A victim can ask the police or the CPS for a leaflet which explains what a VPS is and how it could be used.
If there is no VPS on the file, the prosecutor should ask the police whether the victim has been asked whether he or she wishes to make one. Prosecutors may use these statements to help them to make decisions about cases, for example, when deciding whether they should ask the court to impose conditions when a defendant is on bail.
The defence and the court should be provided with a copy of the VPS prior to the sentencing hearing.
Bail
The police will make the initial decision to bail a defendant either to attend the next available court hearing or to keep the defendant in custody to appear before the court as soon as is practicable and in any event not later than the first sitting after he is charged with the offence. Once a defendant appears before a court, the decision about bail is made by the court and is governed by the provisions of the Bail Act 1976. If a case is not dealt with on the first hearing, the court has to decide whether to grant bail to a defendant or to remand into custody.
It is important that prosecutors are satisfied that applications to remand in custody or to impose conditions on bail are founded on fact and are justifiable under the Bail Act.
Victims of racist or religious crime may be afraid of what will happen to them once a defendant is charged. To protect victims and witnesses from the risk of danger or threats or repeat offences, the CPS may ask the court to impose conditions on the bail or may ask for the defendant to be remanded in custody. The court can only agree if we can show that there are substantial grounds for not granting bail as set out in the Bail Act.
It is vital that the CPS gets as much information about the offence, the effect on the victim and any fears or concerns that the victim may have about repeat offending or intimidation. Normally, the police will supply such information with the case file but prosecutors need to be proactive to make sure that every effort is made to protect vulnerable victims or witnesses by seeking confirmation or further information about any views or concerns expressed by the victim or any witnesses.
A victim may have expressed concerns in a VPS (see above) about the effect the crime has had on them and may raise particular issues about bail in such a statement. These must be taken into account when making our recommendations to the court about bail.
It is also important that any changes to the bail conditions or custody status of a defendant are communicated to victims, either by the police or by the CPS in accordance with local arrangements.
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 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.
Many members of black and minority ethnic communities and faith communities decide not to report racist or religious crime to the police because of a lack of confidence in the criminal justice system. By building better links with these communities, we will raise their level of confidence in us, and reduce under-reporting of this type of crime. 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 Racist and Religious Crime Co-ordinator.
The ACPO Hate Crime guidance advises (at paragraph 11.6.2) that, in these circumstances, the officer must include in the report to the CPS his or her views on:
- the reasons given by the victim;
- how the victim would react if compelled to attend court;
- future risks to the safety of the victim and their family; and
- the impact on the wider community.
As a result of receiving the withdrawal statement and accompanying police report, prosecutors may need to consider whether further charges of, for example, witness intimidation, are appropriate. The prosecutor should liaise closely with the Witness Care Officer to establish what support has been provided to the victim and to establish whether it would be appropriate to offer the victim the services of a specialist support agency if this has not already been done.
In cases with a racial or religious element, the victim may wish not 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: see Annex C for details of available special measures.
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 victim's willingness to give evidence.
Continuing a case where the victim indicates a withdrawal of support
In some cases, a special measures application may provide sufficient reassurance to the victim for them to decide to reconsider and to support a prosecution (see below for further information). If such an application is not possible or the victim remains unwilling to give evidence, consideration must be given to whether any of the following options is possible and appropriate:
- proceeding without using the victim's evidence;
- making a hearsay application under section 116 of the Criminal Justice Act 2003;
- compelling the victim to give evidence; or
- discontinuing as a result of the victim withdrawing support for the prosecution.
Where we are considering proceeding against the victim's wishes, we must consider all parties' human rights issues and endorse fully and clearly the decision-making process on the file.
In addition to the evidence of the nature and seriousness of the offence, background information is crucial in helping a prosecutor to make the correct decision about how to proceed in a case where the victim has withdrawn their support for the prosecution. Some 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.
The ACPO Hate Crime guidance (at paragraph 8.2) reminds police to be aware that, at all stages, from initial notification to the conclusion of any investigation: "there may be attendant risks to the safety and well-being of victims and witnesses. An important risk factor is the identification of potential further victimisation. Immediate steps should be taken to identify and record these risks. If a risk is identified steps should be taken to manage the risk by using appropriate interventions. The perceptions of victims and witnesses of their own risk are necessary considerations. A record of this risk assessment should be kept to ensure openness and accountability". Prosecutors should ask the police about the risk assessment 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) 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.
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 2005. These revised guidelines were published on the 21 October 2005. 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.
It follows from the above statement of policy that 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.
Explaining decisions to drop a case or to alter charges
The CPS has formal obligations towards victims under the Code of Practice for Victims of Crime, which came into force on 3 April 2006, having been issued by the Home Secretary under Section 32 of the Domestic Violence and Victims Act 2004. It sets out the service that victims can expect to receive from all CJS Agencies, including the CPS. We are committed to communicating our decisions to victims where a charge is dropped or is significantly altered. In such cases, the victim will receive a letter that explains the decision and why it has been made. In cases of racist or religious crime, we will also offer the victim the opportunity to meet the prosecutor to receive a more detailed explanation for the decision. Such a meeting is optional and the decision to take up the offer of such a meeting rests with the victim.
We now have in place well established procedures for writing to victims and holding meetings to explain decisions, and staff have received training to help in explaining decisions both in writing and in person.
When holding a meeting with the victim, we should take into account as far as possible the victim's wishes about who comes with them to the meeting, and the time and place of such a meeting. For example, there may be a need to take account of gender issues in some cases which may have a bearing on who should be present at the meeting; or the timing of appointments may need to take into account religious festivals or observances.
Prosecutors should be aware that, even where evidence is insufficient for criminal proceedings, information could be admissible in civil proceedings.
The Prosecutor's Pledge
This is a ten point pledge introduced on 21 October 2005 by the Attorney General. It sets out the level of service that victims can expect to receive from prosecutors. The Prosecutor's Pledge should ensure that the specific needs of victims and witnesses are addressed; that they are assisted at court to refresh their memory from their written or video statement; and that they are protected from unwarranted or irrelevant attacks on their character.
Information and support for victims and witnesses
Past experiences of victims and witnesses or their communities, as well as a fear of reporting cases, may have led to a lack of faith, trust and confidence in the criminal justice system. They may feel that they will be treated unfairly or that their case will be considered to be unimportant.
The views, interests and concerns of victims and witnesses are important to the CPS and we are committed to ensuring proper care and treatment of victims and witnesses.
Crown Prosecutors must be fair, independent and objective. They must not let any personal views about ethnic or national origin, disability, sex, religious beliefs, political views or sexual orientation of the suspect, victim or witness influence their decisions. They must not be affected by improper or undue pressure from any source.
Understanding and taking account of cultural differences or sensitivities
The CPS will actively try to ensure cultural and religious sensitivity in the prosecution process.
The CPS will make arrangements to collect as much information as possible about a witness before a case goes to court and a witness has to attend court to give evidence. For example, we will want to know which holy book would be appropriate for taking an oath, or whether the witness prefers to affirm.
We will want to take account of a witness's availability to attend court to make sure that factors, such as religious festivals, are taken into consideration when setting hearing dates.
We will also try to take account of sensitivities relating to gender so that witnesses can feel as comfortable as possible when meeting CPS staff or when attending court.
Giving evidence with the assistance of special measures
As well as identifying whether the case is a racist or religious crime, prosecutors also need to consider whether the victim or any witness in the case might be "vulnerable or intimidated" and thus eligible for assistance at court by means of a special measure under the Youth Justice and Criminal Evidence Act 1999.
Annex C sets out in more detail the definition of a vulnerable or intimidated witness provided by the Act and the range of special measures that may be available to qualifying witnesses.
The police have agreed to identify vulnerable/intimidated witness cases to us when they submit the file. Furthermore, statutory charging and No Witness No Justice have made the identification of vulnerable and intimidated witnesses a key issue. Nevertheless, prosecutors, as part of the prosecution team, must also be proactive and consider every case at review to assess whether the case may involve a potentially eligible witness. Where this is the case, the prosecutor should consider arranging a meeting with the police (an Early Special Measures Meeting) to discuss whether a victim or witness might be eligible for special measures and to consider what information or additional information might be needed to make such an application to the court.
It is also important at this stage to find out what views the witness has about special measures and whether they think they might be helped by the prosecutor asking the court to allow them to give evidence with the assistance of a special measure. Even if the prosecutor asks for a special measure for a witness, the court makes the final decision and may not agree that the witness can have a special measure.
Applying to the court for anonymity for a witness
Witnesses may be afraid that, if details about where they live are made known, they will be subjected to repeat victimisation or may suffer harassment or reprisals.
As a general rule, although a witness's address will be recorded on the back of the statement that is made to the police, details of that address are not given to the defendant. Obviously, in cases where the defendant knows the victim or witness personally, or if the offence takes place in the witness's home or business premises, that information is likely to be known to the offender.
The court may allow a witness to give evidence in court in the absence of the general public in certain circumstances. This is a special measure under the Youth Justice and Criminal Evidence Act 1999 that the prosecutor can ask for if a witness qualifies under the Act. In general terms, this includes victims of sexual offences, or any witness where the court has reason to believe that the witness has been or might be intimidated by someone other than the defendant in connection with giving evidence to the court.
In addition to this provision, section 46 of the YJCEA also allows a court to make a "reporting direction" in the case of certain witnesses which means that nothing will be published during a witness's lifetime that might lead to that person being identified. The circumstances in which this can be made are very closely defined and the court has to take into account the general principle that justice should be open and conducted in public. More information about how section 46 works is set out in Annex C.
Meetings between the CPS and vulnerable or intimidated witnesses
The CPS is committed to meeting vulnerable or intimidated witnesses for whom special measures might be appropriate. The purpose of the meeting is:
- to establish a link between the CPS and the witness; and
- to provide reassurance that the needs of the witness will be taken into account.
The meeting can also be used to explain court procedure and the roles and responsibilities of the various parties at trial, if arrangements have not already been put in place for this to be done as part of any pre-court familiarisation visit organised by the Witness Service.
The CPS has published guidance about meetings with vulnerable or intimidated witnesses in the leaflet 'Your Meeting with the Crown Prosecution Service', available on this website.
Copies of the leaflet can also be obtained from the CPS Communications Branch.
Interpreters
An interpreter will be made available by the police during the investigation stage of a case. Later, when a witness is giving evidence at court, the prosecution will make sure that an independent interpreter is provided to help the witness give evidence in his/her first language. Depending on the stage that the case has reached, the interpreter's fee will be paid by either the police or the CPS.
It is important that steps are taken from the very start of a case to find out if a witness needs to be helped by an interpreter, and to find out not only the appropriate language but whether the witness uses a particular dialect of that language. Getting this information early in a case will reduce the risk that the wrong interpreter is selected, which might delay the case unnecessarily.
Interpreters must be independent of the witness's family and of the investigation.
Guidance on the use of interpreters in criminal proceedings is available to prosecutors in Casework Bulletin 55/2006.
Pre-court visits
Prosecutors should be aware of the availability and potential value of pre-court familiarisation visits, particularly for vulnerable and intimidated witnesses. The Home Office report, 'Are Special Measures Working?' found that: "pre-court familiarisation visits are potentially the most useful of the non-statutory measures in the pre-trial phase". If the witness would like a pre-court familiarisation visit, the Witness Care Officer will make a referral to the Witness Service, which will then contact the witness directly to make the necessary arrangements.
Witnesses may want to meet the prosecutor before the trial starts. We should make sure that the prosecutor on the day of trial introduces him/herself to the witness before the trial starts wherever possible.
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. To do so is contrary to the CPS commitment made in response to the Home Secretary's Stephen Lawrence Inquiry Action Plan and commitments made to Parliament during the passage of the Crime and Disorder Act 1998.
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] CLR 411 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, 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. 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. This is of increased importance now that 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.
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.
Prosecutors must be aware of their obligations under 'The Attorney General's Guidelines On The Acceptance Of Pleas And The Prosecutor's Role In The Sentencing Exercise 2005'. In particular, prosecutors must:
- 'In all cases before the Crown Court, and in cases before the magistrates' court where the issues are complex or there is scope for misunderstanding, the prosecution must commit to writing the aggravating and mitigating factors that will form the opening of the prosecution case as well any statutory limitations on sentencing. The prosecution will address, where relevant, the factors outlined at B4 including the matters set out in the next sub-paragraph.
- The matters to be dealt with are:
- the aggravating and mitigating factors of the offence (not personal mitigation);
- any statutory provisions relevant to the offender and the offence under consideration so that the judge is made aware of any statutory limitations on sentencing;
- any relevant sentencing Guidelines and guideline cases;
- identifying any victim personal statement or other information available to the prosecution advocate as to the impact of the offence on the victim;
- where appropriate, any evidence of the impact of the offending on a community;
- an indication, where applicable, of an intention to apply for any ancillary orders, such as anti-social behaviour orders and confiscation orders, and so far as possible, indicating the nature of the order to be sought.'
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]. Since 2 December 2002, ASBOs can be made following criminal conviction in addition to other penalties - [s 1C Crime and Disorder Act 1998, amended by s. 64 Police Reform Act 2002]. Separate policy guidance is available on the role of the prosecutor in such cases.
Unduly lenient sentences
Sections 35 and 36 of the Criminal Justice Act 1988 empower the Attorney General to apply to the Court of Appeal for leave to refer for review any sentence which appears to the Attorney to be unduly lenient; which was passed on an offender for a prescribed range of offences; and which was passed in the Crown Court. A written application for leave to refer, signed by the Attorney, must be lodged with the Registrar of Criminal Appeals within 28 days of the sentence being passed. The 28 day time limit is absolute so prosecutors must ensure appropriate cases are handled expeditiously so that the time limit is met. Prosecutors should refer to the CPS Legal Guidance which clearly sets out the procedure to be followed.
Consideration of a sentence for possible referral as an unduly lenient sentence may arise in one or more of the following ways:
- the CPS may consider the sentence merits a reference;
- the CPS may receive a complaint about the sentence from, for example, the victim or the victim's family, a member of the public, a lobby group, or from a police officer;
- the Law Officers may receive a complaint about a sentence;
- the Law Officers may call for the case papers, for example after reading reports of individual cases.
In cases where, following receipt of a complaint, the CPS considers the case and decides not to submit the case to the Law Officers for consideration, it must notify the complainant without delay so that the complainant's option of complaining directly to the Law Officers is preserved and so that the Law Officers will have sufficient time, if a complaint is made, to consider the case.
The Racist Incident Monitoring Scheme (RIMS)
We have been gathering information on prosecution decisions and case outcomes in racist incident cases since 1995. From 1996 onwards, we have published an annual report giving national and Area figures on all racist incidents sent to us by the police for prosecution. The RIMS annual report provides the following information: the number of defendants charged with offences to which the scheme applies; CPS decisions on the charges put by the police; the number and type of charges prosecuted; the number of charges discontinued and the reasons why; the results of prosecutions broken down by court type, including the sentences imposed.
A case is tracked by RIMS if it meets the Stephen Lawrence Inquiry Report definition of a racist incident, that is: "A racist incident is any incident which is perceived to be racist by the victim or any other person". Information is recorded manually on the Racist Incident Data Sheet (RIDS) and completed RIDS are collated locally and sent to CPS HQ for inputting onto a national database.
Since religiously aggravated crime was introduced late in 2001, we have been tracking these cases through RIMS by asking CPS Areas to indicate on the RIDS that the case was a religious, rather than a racist incident. Since April 2007, racist and religious crime has been be flagged separately on COMPASS, and information regarding the religion and belief of victims and defendants has been supplied by the police. This information is recorded on COMPASS via the MG forms which have been revised accordingly. All religiously aggravated crimes are referred to the Principal Legal Advisor for him to express his view about the prosecution decision. The Director gave a commitment to the Attorney General that he would report on the effectiveness of the new offences as they formed an important part of the anti-terrorism legislation introduced in response to the events of 11 September 2001.
CPS Annual Hate Crimes Report
In January 2006, we established a Hate Crimes Monitoring Project to improve the electronic recording of hate crime and to enable us publicly to report on hate crime data in a single annual report. This report will include data on our performance in tackling racist and religious crime (and will therefore replace the RIMS Annual Report which is published each autumn), homophobic crime, domestic violence and disability hate crime (which we monitored from April 2007). We intend to publish our first Annual Hate Crimes Report in autumn 2008.
We consulted both internally within the CPS and externally with a wide range of community partners, including members of the Attorney General's Diversity Advisory Group, in order to establish the priorities of diverse communities in relation to the monitoring of hate crime. Following this consultation, the following additional data will be recorded electronically:
- Religion and belief of all defendants and all victims;
- Recording racist crime separately from religious crime;
- Recording the dropping of the aggravated element (of racist and religious crime, homophobic crime and disability hate crime);
- Sentencing monitoring for aggravated offences (that is, we will record the uplift of sentences for aggravated offences);
- Victim retractions;
- Gender and ethnicity of victims;
- 'Honour' crimes (Pilot Areas only);
- Forced marriages (Pilot Areas only).
Accuracy of data collection is essential. We can only achieve accuracy and consistency by building management checks into the data collection process and then going on to validate the data by sharing it with other agencies. The police and the courts are key, but equally important are multi-agency or local community groups with an interest in tackling racist attacks and harassment. They often have a different perspective to bring and may offer helpful advice and guidance about how to make the best use of the information we are gathering.
Community engagement
The Race Relations (Amendment) Act 2000 places a general duty on public authorities to promote race equality. Community engagement and consultation are essential to help us to meet this duty and the CPS is committed to consulting and involving communities in framing community informed policies and in assessing the impact of our policies. To do this successfully, we need to work closely with race and faith organisations and with wider minority communities in order to build trust and confidence in the criminal justice system.
There have been a number of developments in our community engagement agenda since the first racist and religious crime policy statement was published in 2003.
Policy changes
In 2005 we produced our second Race Equality Scheme to cover the period 2005-08. This was superseded in December 2006 by the Single Equality Scheme. This Scheme is a strategy and a set of actions designed to promote equality in CPS business and employment, covering the period from December 2006 to January 2010. It includes actions and commitments to fulfil our legal obligations and to promote equality in relation to race, disability, gender, religion or belief, sexual orientation, gender identity, and age.
In 2005 we introduced a community engagement performance measure; the first of its type within the criminal justice system. This is a qualitative assessment of community engagement activities. Areas are required to undertake an annual programme of engagement activities, including engagement with a diverse range of communities, evaluate its impact and use some of the engagement to inform service improvement.
The business plan for 2007/08 introduced two new initiatives in relation to community engagement.
- By March 2008, all the CPS Areas will have set up Hate Crime Scrutiny Panels. The purpose of these panels is to scrutinise finalised hate crime case files in order to learn how we can continue to improve prosecution outcomes and our handling of cases generally. People with experience of supporting victims of racist and religious hate crime will be invited to be members of these panels.
- By March 2008, all the CPS Area Groups will have established a Community Involvement Panel. These panels are a practical way of mainstreaming engagement into the core business of the CPS at a strategic level. They offer a proactive means of both consultation and community participation on a regular and structured basis. Community representatives on the panel will be consulted on Area Group planning and strategy, Area business plans, service delivery, high level performance outcomes and the implementation of local Area Equality Schemes.
People from diverse backgrounds including people from groups concerned with challenging racist and religious discrimination will be invited to take part in these panels.
Support for Areas
Support to Areas is available in the form of guidance issued to all Areas and is available on the intranet, as well as through events and direct one to one support.
- In May 2006 the CPS produced "Handling sensitive race hate crime: an overview of good practice and lessons learnt in the CPS Merseyside handling of the racist murder of Anthony Walker". This included important lessons in relation to community engagement in terms of both case based engagement and engagement more generally.
- Between 2005 and 2006 three community engagement pilots took place, to test different methods of community engagement and from the lessons learnt, to inform best practice across the organisation. The three pilots were independently evaluated in 2006 and the results published at a national conference in November 2006.
- In 2006 the CPS published the following documents:
- the Community Engagement Strategy;
- the Community Engagement Handbook;
- the Community Engagement Good Practice Guide.
- The Equality and Diversity Unit has regional Project and Performance Advisors who can advise Areas on the development of their community engagement action plans. Within each Area Group, an Equality, Diversity and Community Engagement officer will be established by the end of 2007/08. These officers will be involved in implementing community engagement initiatives. They will also service Hate Crime Scrutiny Panels and Community Involvement Panels.
Working with criminal justice and community partners
We have a responsibility to work with criminal justice partners to promote the confidence of black and minority ethnic communities and faith communities in the criminal justice system. The criminal justice organisations we work closely with include:
- Chief Officers of Probation;
- Courts Service staff;
- Prison Service;
- The Bar and the local Law Society;
- The Local Criminal Justice Boards (LCJBs);
- The Police;
- Witness Care Units;
- Youth Offender's Team.
Engagement with the wider community is essential to building positive relationships between marginalised groups and public organisations. It can help organisations to challenge processes that might adversely affect black and minority ethnic communities and faith communities and it informs the development of policies aimed at eliminating discrimination. We will continue to work with:
- Community groups representing the interests of those affected by the prosecution service;
- Groups that monitor racist and religious incidents;
- Local religious bodies;
- Other agencies such as local authorities, and Crime and Disorder Partnerships, schools and colleagues;
- Race equality councils;
- Victim Support and other support agencies.
Community engagement is an ongoing and dynamic process and is core business for the CPS. Through the application of our community engagement performance measure the CPS aims to ensure that the Service overall, and all our Areas, are focused on establishing strong and long lasting links with the communities we serve, including black and ethnic minority communities and faith communities.
Conclusion
We are determined to play our part in stopping racially and religiously aggravated crimes and in bringing offenders to justice. We are committed to improving our performance in handling cases of all hate crime and we want victims and witnesses to have confidence in the way in which we review and progress our cases. We hope that the policy statement and this guidance will help victims of racist and religious crime to understand the work of the CPS; how we make our decisions; and the different stages of the prosecution process. Prosecutors will continue to work with the police and other colleagues in the CJS and the voluntary and community sectors at both a national and a local level to develop good practice in dealing with cases of racist and religious crime.
