CCP Question Time - hate crime
On 29 March 2012, CPS South West's Chief Crown Prosecutor, Barry Hughes, met with members of some of the voluntary sector organisations we work with, representatives from the local media and Avin and Somerset constabulary to discuss the issue of hate crime and highlight some of the measures in place across the South West to tackle it.
Below is Barry's opening speech.
How can the CPS tackle hate crime more effectively?
What are the particular issues involved in addressing disability hate crime?
Let me start with the role of the Crown Prosecution Service. The CPS is the principal public prosecuting authority for England and Wales, and I am ultimately responsible for the prosecution of crime in the South West of England.
Following the transfer of the power to charge criminal offences from the police to us, it is our job to decide charges in most serious cases, and in all cases of hate crime. In deciding which cases to prosecute we apply the Code for Crown Prosecutors.
The Code is a public document, issued by the Director of Public Prosecutions, which sets out the guidance CPS prosecutors must follow in every case. The purpose is to promote transparent, consistent and fair decision-making.
It sets out two 'tests' that are applied by prosecutors when considering whether or not to prosecute a case.
The first is the evidential stage which states that there must be sufficient evidence for there to be a realistic prospect of conviction. If this test is not met, the case cannot go ahead, no matter how serious the allegation.
The second stage requires us to consider whether the public interest requires a prosecution. Not every criminal act requires a prosecution. However, we regard disability hate crime, and indeed all hate crime, as particularly serious.
For that reason, where the evidential test is met, there will almost certainly be a prosecution in cases of hate crime.
There are and always will be many cases where a victim is bitterly upset by our decision that their case can't proceed. But with the two stages of the Code come dual aims.
We must not unrealistically raise the expectations of victims who want to see offenders brought to justice. And, equally, we must uphold everyones right not to be prosecuted without due cause.
The CPS is independent. We serve the public, and we make our decisions on behalf of the public. We have to ensure that the prosecutions that we bring are based on robust evidence, and that the public interest requires a prosecution.
So much for the background of the way in which we approach the prosecution of crime in general. This lecture is about one type of crime in particular: Hate Crime.
I regard the way that we deal with Hate Crime as a litmus test for the fairness and effectiveness of the CPS as a public prosecution service. These are sensitive cases that touch people deeply because of the way that they have been targeted because of their personal characteristics. The prosecution of hate crime can be exceptionally difficult and demanding.
I believe that the robust and fair prosecution of hate crime is the hallmark of a modern, effective prosecution service. By showing excellence in prosecuting these crimes, we can increase public confidence not only in our handling of hate crime but in the way that we deal with the fuller range of offences that we prosecute on behalf of the whole community.
What is hate crime? Why is it so damaging?
The agreed definition of hate crime is this: Hate crime is any criminal offence committed against a person or property that is motivated, or perceived to be motivated, by hostility or prejudice based upon the victims:
race, colour, ethnic origin, nationality or national origins
religion or belief
gender or gender identity
sexual orientation
disability
age
In all, these crimes derive from six different foundations for hatred.
Why do I claim that hate crime is so damaging? I regard hate crime as corrosive; through its expression of hatred based upon an individuals personal characteristics it creates divisions within and between our communities. Although targeted at minorities, the broader erosion of community confidence affects us all. We cannot say that we are proud to live in a safe society if some members of our society live in fear of what may happen to them because of the colour of their skin, their age, their disability, gender identity, faith or their sexuality
Hate crimes sustain and feed both prejudice and discrimination in our society. They are simply unacceptable. And so we have hate crime laws that reflect the particular harm these crimes inflict on whole communities. These laws recognise that hate crimes represent a crude and ugly assault on human rights.
The effect of hate crime upon victims is that they suffer on many levels. They lose the fundamental freedom to live their lives they way they want, and to live without fear. We have dealt with many cases where victims have said that they are afraid to leave their own home. These are the reasons why I say that hate crime is so damaging.
So, how has the CPS approached the problem of hate crime, and how effective are we in dealing with it?
Working with specialist voluntary sector organisations, including some of those represented here today, we have developed a suite of hate crime policies, and detailed guidance for prosecutors.
These are public policies, available from the CPS website. Each policy explains the relevant law, and deals with the application of the Code for Crown Prosecutors. We also describe our approach to victim and witness issues.
Each policy sets out the appropriate use of the relevant law. It is important to note that for well over ten years we have had available to us specific legislation that allows us to specifically prosecute racially and religiously aggravated crime, two of the six foundations for hatred that I outlined earlier. These are further catered for by the Criminal Justice Act 2003, together with two of the remaining four strands of hatred, sexual orientation and disability.
In particular, sections 145 and 146 of the Act are vital statutory provisions. They do not create any new offences, but they do impose a duty upon courts to declare an aggravating factor when sentencing in circumstances where it has been proved that hostility, based on a persons disability, religion, ethnicity or sexual orientation, was demonstrated at the time the offence was committed, or immediately before or afterwards, or proved that the offence was motivated by hostility towards the disability. The court must declare this an aggravating factor at the sentencing stage. This is an important public declaration of the gravity that our society attaches to hate crime within our communities.
It is therefore critical that prosecutors highlight Sections 145 or 146 to the Court, so as to allow for an uplift to sentences where crimes are proven to be aggravated by the hate crime element.
Our Performance
In my view, we cannot really answer the question as to how we can tackle hate crime more effectively (the question that we have posed for ourselves today) without being clear about how effective we are currently.
The CPS measures its performance in handling Hate Crime. The most recent report for 2010/11 was published in February 2012.
So let me just talk you through a few key national and regional hate crime performance statistics. You can see the 2010/11 hate crime report for yourself on the CPS website. I shall just touch lightly upon some of the headlines;
- Since 2006/7 the number of hate crime cases referred by the police to the CPS nationally for a charging decision has steadily increased and the proportion of these charged by the CPS has also increased from 59% to 72%.
- Between 2006/07 and 2010/11 the proportion of successful convictions across all types of hate crime has increased from 77% to 83%, while the number of prosecutions has also increased from 12,535 to 15, 284.
- The greatest proportion of hate crime cases we prosecute are in relation to racially aggravated crimes and of the 12,711 racist offences prosecuted in 2010/11, 83% were successful.
- In 2010/11 nationally we successfully prosecuted 80% of disability hate crime cases whereas in 2008/9 we successfully prosecuted 76% (and in 2007/8 this was 77%). A steady rise in successful prosecutions, but overall, figures for successful prosecution of disability hate crime remain lower, on the whole, than for other kinds of hate crime.
The South West statistical picture for 2010/11 and for the latest reporting period:
At a local level in the South West for 2010/11;
- We handled 678 racially/religiously cases and successfully prosecuted over 83% of these.
- We handled 64 cases of homophobic and transphobic crimes and successfully prosecuted over 93% of these, but please bear in mind that the numbers are smaller and therefore more volatile our emerging data for 2011/12 shows that we handled 69 cases in the year so far, an increase in volume, but 74% of these were successful compared to 93% in the previous year.
- We handled 47 disability hate crimes and successfully prosecuted 83% of these.
We know that these figures the number of cases that are passed to us - represent only a tiny proportion of the disability-related harassment incidents that actually occur.
There are 'confidence hurdles' among individuals and communities still to be overcome by the Criminal Justice System and there are practical issues relating to the consistent and effective identification and handling of disability hate crimes on the front line.
In the run up to this event, I asked you, as participants, to submit your questions so that we could reflect together, in some depth, on how the CPS, and by implication our criminal justice system and other partners, can tackle hate crime more effectively. I would like to thank those of you who have submitted these important questions.
These centred on issues about how the CPS and our partners can offer appropriate support to disabled victims to ensure that they are empowered to give their best evidence and have full access to justice.
Concerns were voiced about how financial constraints might impact on CPS willingness to fully support disabled victims.
We were questioned on our understanding of the different ways people with learning disabilities may be targeted, abused and exploited by those who pretend to befriend them (in terms of what some, but not the CPS, describe as 'mate hate' crime).
Some landmark cases have shaped the way the CPS and other agencies understand and deal with hate crime. We have witnessed the pain of the families of Stephen Lawrence, Fiona Pilkington, Michael Gilbert and learned the lessons from these cases but we must ensure that we consistently apply these lessons. We know from relatively recent cases in the Court of Appeal that we cannot afford to be complacent in any way
Through these cases and those prosecuted locally, we have begun to better understand the need for both police and CPS to identify and investigate any potential links between persistent, targeted anti-social behaviour and hate crime where victims are regularly bullied, terrorised and verbally abused. When our Scrutiny and Involvement Panels review finalised hate crime case we now increasingly ask whether the police and CPS made this link.
Last year's Equality and Human Rights Commission report, Hidden in Plain Sight, paints a startling and disturbing picture of modern society in which harassment is revealed to be a commonplace experience for many disabled people, and where disbelief and systemic institutional failures are preventing it from being tackled effectively.
Mencap's 2010 report 'Dont Stand By' revealed inconsistencies in the level of service and understanding that disabled people or their carers experienced when reporting disability hate crime.
An impression seems to have been created that the CPS and police may be slow to find credible the evidence of learning disabled victims, or will seek to drop or lessen a charge because the disability hate crime factor (hostility or hatred) is seen as too difficult or complex to prove.
Such an approach would be wholly contrary to our policy and legal guidance for prosecuting disability hate crime, and on supporting victims with learning disability or mental health issues.
Applying Disability Hate Crime policy and legal guidance
In cases involving criminal offences committed against disabled people, hostility is not always explicit.
Prosecutors must examine all the surrounding circumstances, previous incidents and context of incidents.
When the nature of a person's disability makes it easier for the offender to commit a particular offence, police and prosecutors often focus on the victim being 'vulnerable', an 'easy target' and sometimes not enough thought is given to the issue of hostility.
The vulnerable situation, within which a disabled person may find themselves, can provide the opportunity for an offender to demonstrate their hostility based on disability.
A recent disability hate crime case in Avon and Somerset may illustrate the point.
Michael is a 49 year old man with severe learning disabilities. He lived with his elderly mother who was his primary carer. On 11th February 2011 he attended a barbers shop on Stapleton Road in Bristol. He had been there several times before. His half-brother confirmed that Michael had always had a standard haircut. Not on 11 February. Instead, Michael left the hairdresser with the word FOOL shaved into the back of his head.
Whilst the haircut was never photographed we had clear evidence from three witnesses and we were also made aware of the distress caused by the incident for the victim and his family.
The Defendant admitted cutting Michael's hair but claimed that he shaved the word COOL after Michael requested a pattern in his hair.
Because of later interview admissions we did not need to call Michael as a witness in this case.
Our prosecutors were mindful of his communication difficulties (a video interview had been conducted by the police with an intermediary, and this indicated that giving evidence live in court could have been difficult for him though this is something we could have arranged)
Importantly, because S146 was announced at court by the CPS prosecutor and we correctly identified this as a Disability hate crime case, the full impact of this crime was taken into account and the case managed as a DHC from the outset.
Michael Campbell, 35, denied the offence but after trial he was found guilty of common assault. He was sentenced to 200 hours of unpaid work over 18 months.
In the next case where there was much good work on the part of police and the CPS there was however a failure to recognise disability hate crime:
Kriss is of mixed race and was 20 years old at the time of the offence. His mother described him as being slow to do things. He attended a school for children with learning disabilities. His mother said Kriss is easily led and has had concerns about him being taken advantage of by so-called friends.
On 21st June 2011, Sandy invited Kriss to meet her and two additional friends. Tori and Kyle. Having had a couple of drinks they all went back to Tori's flat.
On arrival, Tori locked the door and put the key in her pocket. Sandy started to goad Kriss into fighting with Kyle, telling him that Kyle was a racist and he should stand up for himself. Kriss didnt want to fight. Kyle then hit Kriss on the head repeatedly with a saucepan. Sandy hit him as well.
Neighbours heard Kriss shouting and screaming 'help me, help me'. Kyle told Kriss that if the police came, he should lie down and pretend to be asleep.
In interview, Kyle said they had got into a fight and that he'd got the better of Kriss. He denied any assault with a saucepan. He understood that Kriss was a vulnerable adult, and that he didnt understand and grasp everything.
Tori said she locked the door, but the keys remained in the lock. She said that Kriss was 'too retarded to open the door'
All three defendants were charged with false imprisonment and actual bodily harm. They denied the offences but were convicted after a Crown Court trial.
This case was not identified a disability hate crime and s146 was therefore not applied.
One defendant was sentenced to 12 months in a young offenders institution and another was sentenced to 9 months imprisonment suspended for 24 months. The CPS droppesd the case against the thisd due to insufficient evidence.
This case was reviewed by the Local Scrutiny and Involvement Panel in Gloucestershire (where the case originated). As a result of this scrutiny we are preparing refresher training on our Disability hate crime legal guidance and policy for our prosecutors.
Good support for disabled victims and witnesses is crucial as reflected in the questions and views submitted to us prior to today.
I would like to tell you about a case where we successfully used intermediaries to support victims to give evidence. I recognise that we need to do this consistently and that we need to ensure victims and support agencies are aware of the support we can give but I hope this example gives a flavour of our strong commitment to achieving equality of access to justice for disabled victims:
James Michael Watts was convicted of a number of sexual assaults upon severely disabled women with profound communication issues. Expert intermediaries were used as none of the women could give evidence in court. Two were able to give evidence via video link one communicated by looking up for yes and down for no, the other used a computer and voice synthesiser.
Other victims gave their evidence by blinking or pressing buttons on their wheelchairs to indicate yes or no.
The jury at Exeter Crown Court found Watts guilty and he was sentenced to his 12 years imprisonment. His subsequent appeal against conviction was dismissed.
There would have been a time in the past, I am sure, when the CPS might not have taken such a case forward. But working over the years in partnership with disability groups and victims has built our capacity to meet the specific needs of disabled victims enormously.
I hope this talk illustrates that we are learning more about how we can work more effectively to bring disability hate crime cases to justice.
While we can and do go to great lengths to support victims and witnesses, but there is still more to do in making sure that all police and prosecutors are aware of the detail of our legal guidance and the common factors which define hate crime, and that they apply the guidance effectively.
We've made a start by looking at a number of questions with a particular focus on disability hate crime because we know that there is so much still to be done to tackle these appalling kinds of crime.
Last year, in a public lecture on disability hate crime, the Director of Public Prosecutions, Keir Starmer QC, said that 'Prosecutors are still in the foothills' when it comes to prosecuting disability hate crime. My aim is to ensure we make significant progress towards reaching higher ground here in the South West.
In order to reach this higher ground, we need your help. Time and time again research on hate crime (some of which I touched upon earlier) tells us ever more clearly that the only way we can do this is through working together and learning from each other.
I would like to close by bringing your attention to the new government Hate Crime Action Plan, Challenge it, Report it, Stop it published this month (March 2012).
In the foreword to this Plan, Minister for Equality Lynne Featherstone MP makes her point very clearly - the lead for tackling hate crime must come from the local level, with professionals, the voluntary sector and communities working together to identify and address issues and priorities.
Let's take the lead, and do just that.
