Disability Hate Crime and other crimes against Disabled people - prosecution guidance
- Referral of disability hate crime cases to CPS
- Flagging of disability hate crime cases
- Case building
- Case reviews
- Disability hate crime - the legislation
- Victim and Witness issues
- Accepting pleas
- Vulnerability and sentencing
- What we mean by "Vulnerable Victim"
- Hate Crime Co-ordinators
This guidance sets out the factors to be taken into consideration when reviewing cases and prosecuting offences classified as Disability Hate Crime (DHC). It also addresses the approach to be taken in other cases in which disability is a factor.
Prosecutors are reminded to read this guidance with our Public Statement on Prosecuting Disability Hate Crime and other Crimes against Disabled People, as it provides greater detail on some of the key areas of policy.
Prosecutors should also familiarise themselves with the hate crime material on the Knowledge Hub, the Hate Crime page on the CPS website and the CPS Support Guide, which sets out the range of support available to disabled victims of crime, from the CPS, the police and other criminal justice agencies.
There is no offence of stirring up hatred based on disability, which contrasts with the position in relation to offences of stirring up hatred on grounds of race, religion and sexual orientation.
The Director's Guidance on Charging requires offences classified as hate crime under CPS policies to be referred to a prosecutor for early consultation and a charging decision, whether admitted by the suspect or not.
It is essential that the CPS identifies all those cases that might properly be prosecuted as disability hate crimes.
All cases referred to the CPS by the police which have been identified as a disability hate crime should be flagged immediately on Compass CMS using the appropriate case monitoring codes. Similarly, if the receiving CPS lawyer perceives that the case involves an element of hostility towards disability, the appropriate monitoring code should be added on CMS. The decision to flag can be taken at almost any stage of the process; if not already flagged by the investigating officer, it might be flagged by the reviewing prosecutor, at review stage even up to and including the trial. It is best practice to flag as soon as possible in order to ensure the correct support is made available to the victim and facilitate a proactive investigation of the evidence.
The CPS uses definitions agreed with the National Police Chiefs' Council to identify disability related incidents and crimes and to monitor the decisions and outcomes.
"Any incident / crime which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's disability or perceived disability".
Flagging is a subjective question. Flagging a case puts the CPS on notice that someone at some stage has perceived the incident that gave rise to the case had such an element of disability hostility or prejudice to it. For a conviction to receive enhanced sentencing in court the police need to provide sufficient evidence to prove the hostility element, however this is not required for flagging purposes. Therefore, whilst not all flagged cases will result in an application for an uplift of sentence under s146 of the Criminal Justice Act 2003, they should still be flagged on CMS.
It is not CPS policy to remove a flag in the absence of sufficient evidence to support a sentence uplift. This in part reflects the commitment to treat hate crime seriously and to support the victim's perception and also to encourage community confidence in reporting all such offending. However, if a flag has been attached to a file due to an administrative error, it will be removed, to support increased data accuracy. Removal of a flag can have serious consequences and advice should be sought from a hate crime specialist or a senior manager before removal.
Some cases may need more than one flag, for example, cases that also involve domestic violence, rape, or homophobic, biphobic, transphobic or racist or religious elements. Accurate flagging of cases is important: it means that CPS can monitor how these cases are handled and can report back to communities on our performance in tackling these types of hate crime.
It is important that the relevant fields on Compass CMS are completed where flagged hate crimes qualify for an enhanced sentence. This enables monitoring of whether or not the prosecutor drew the court's attention to the sentencing provisions and whether or not the court applied an enhanced sentence.
Prosecutors must adopt a proactive approach to seeking further information from the police to help them to decide if a case can be prosecuted as a disability hate crime and that there is sufficient evidence that to be presented to the court at sentence. This might include seeking information from other agencies, such as social services, the NHS and specialist support or community groups working with disabled people.
Common Factors in Disability Hate Crime
When building cases, it may assist prosecutors to be aware of a number of common features in disability hate crimes:
- Incidents escalate in severity and frequency. There may have been previous incidents, such as: financial or sexual exploitation; making the victim commit minor criminal offences such as shoplifting; using or selling the victim's medication; taking over the victim's accommodation to commit further offences such as taking/selling drugs, handling stolen goods and encouraging under-age drinking.
- Opportunistic criminal offending becomes systematic and there is regular targeting, either of the individual victim or of their family/friends, or of other disabled people.
- Perpetrators are often partners, family members, friends, carers, acquaintances, or neighbours. Offending by persons with whom the disabled person is in a relationship may be complicated by emotional, physical and financial dependency and the need to believe a relationship is trusting and genuine, however dysfunctional. Where perpetrators are partners, or live with the disabled person and are either members of the same family or have previously been partners, the offence of Controlling or coercive behaviour may apply: see legal guidance on Controlling or Coercive behaviour in an Intimate or Family Relationship.
- Carers, whether employed, family or friends, may control all or much of the disabled person's finances. This provides the carer with opportunities to abuse, manipulate and steal from the disabled person.
- There are a number of common triggers for crimes against disabled persons, for example: access or equipment requirements, such as ramps to trains and buses, can cause irritability or anger in perpetrators; perceived benefit fraud ; jealousy in regard to perceived "perks", such as disabled parking spaces.
- Multiple perpetrators are involved in incidents condoning and encouraging the main offender(s) - for example, filming on their mobile phones and sending pictures to friends or social networking sites.
- False accusations of the victim being a paedophile or "grass".
- Cruelty, humiliation and degrading treatment, often related to the nature of the disability: for example, blindfolding someone who is deaf; destroying mobility aids.
- Barriers to, and negative experience of, reporting to criminal justice agencies, which leads disabled people to feel that they are not being taken seriously.
- Disabled people have a tendency to report incidents to a third party rather than to the police.
If the case passes the evidential stage and it is a case of disability hate crime or was motivated by discrimination against the victim's disability, it is more likely that a prosecution is required in the public interest: see paragraph 4.12(c) of the Code for Crown Prosecutors.
Since s146 does not create an offence, it is not necessary to consider the aggravating factor when assessing the evidential stage of the Full Code Test.
In every case that has been flagged as a disability hate crime case, the reviewing prosecutor should fully address:
- how s146 of the Criminal Justice Act 2003 does or does not apply to the circumstances of the case and give reasons for their decision.
- if s146 does not apply, whether there is evidence of the offender targeting a disabled victim because of their perceived vulnerability, or causing greater harm to a disabled person.
- what, if any, special measures are appropriate - to be discussed with the witness. See the legal guidance on Special Measures.
- any other support needs. See the CPS Support Guide and the legal guidance on Interpreters and the National Agreement.
- what ancillary order applications may be required. In particular, see the legal guidance on Restraining Orders - Section 5, Protection from Harassment Act 1997 and Criminal Behaviour Orders.
All these issues should be kept under continuous review.
A review of cases involving disability should consider the following non-exhaustive set of issues.
- Are there false accusations of the victim being a paedophile or a "grass"?
- Was it a sustained attack?
- Did it involve excessive violence?
- Was cruelty, humiliation or degradation involved?
- Was there any focus on the disability itself or disability aids? For example, language, gestures, gratuitous damage to hearing aid, crutches, wheelchair, scooter etc, blindfolding a profoundly deaf victim?
- Was hostility based on the victim's disability demonstrated by the perpetrator?
- Did the offender target or cause harm to a victim who was in the circumstances vulnerable because of their disability? Although such evidence will not necessarily support a s146 uplift, it will be relevant to sentence as an aggravating factor.
- Have there been any previous incidents involving the offender and hostility or targeted anti-social behaviour?
- If so, what was the nature and location of previous incidents?
- Have the incidents escalated in severity and frequency?
- Has opportunistic offending become systematic and regular targeting?
- What is the status of the offender - "friend", paid or informal / family carer, acquaintance, relative, stranger?
- What was the role of any bystanders?
- Were there multiple perpetrators condoning and encouraging, taking photos/videos?
- What evidence is there to suggest this is not a disability hate crime?
- What is the actual or perceived disability involved?
- Was the actual/perceived disability completely co-incidental to the offending?
If satisfied that there is sufficient evidence to prove that the offence is aggravated by hostility on the grounds of disability, prosecutors should make it clear to the defence and to the court at the earliest opportunity that they intend to so advise the court for sentencing purposes. In Crown Court cases, letters should be sent to the defence and the court to advise them that the prosecution intend to apply for a sentence uplift under s.146 Criminal Justice Act 2003. These letters should set out the evidential grounds on which the application will be based.
S146 Criminal Justice Act 2003
There is no aggravated offence of DHC but s146(2) of the Criminal Justice Act 2003 imposes a duty upon courts to increase the sentence for any offence committed that involves either:
- the offender demonstrating towards the victim of the offence hostility based on a disability (or presumed disability) of the victim; or
- the offence being motivated (wholly or partly) by hostility towards persons who have a disability or a particular disability.
Note that these are alternatives. This means that in a case where a demonstration of hostility can be proved, there is no need also to prove motivation, and vice versa.
CPS application of s146
A sentence may be increased under s146 in relation to any offence. Much of the harassment experienced by disabled people is persistent, low level offending. In order to counter this type of behaviour, it is important that s146 uplifts are applied for in all appropriate cases. This approach is intended to ensure that disability hate crime is punished properly and that justice is afforded to all.
Definition of disability
For the purposes of s146, "disability" means any physical or mental impairment. S146 is also relevant to cases where the offender has assumed a person is disabled, whether or not that assumption is correct.
The definition of disability in s146 includes people living with HIV or AIDS.
In some cases, disabilities can be masked or exacerbated by alcoholism and drug dependency. Some people have a combination of disabilities. Some disabilities are obvious, some are hidden. Some people may not wish to disclose the fact that they have a disability.
Medical confirmation is not necessary to put a prosecutor on notice that a person might have a disability and may have been targeted because of it.
Hostility is not defined in the Act. Consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, prejudice, unfriendliness, antagonism, resentment, and dislike.
The words of the subsection require an indication by the offender of hostility towards the victim based on a disability. The demonstration of hostility must be nearly contemporaneous to the conduct element of the offence (at the time of the offence or immediately before or after).
The demonstration of hostility is likely, in many cases, to be something different from and additional to the conduct element of the offence. Mere evidence of the commission of the substantive offence against a disabled victim is not sufficient.
Motivated by hostility
The second limb of section 146 is concerned with the offender's motivation, requiring proof that the substantive offence was wholly or partly motivated by hostility towards disabled persons. Motive can be established by evidence relating to what the defendant may have said or done on other occasions or prior to the current incident.
With reference to interpretation, it should be noted that section 28(1)(b) of the Crime and Disorder Act 1998, which refers to racial hostility, has been held to be wide enough to include hostility towards one member of such a group, since section 6(c) of the Interpretation Act 1978 provides that "words in the plural include the singular" unless the contrary intention appears, and no such contrary intention appears in the provision.
In addition, the circumstances include those where an offence is motivated by hostility towards a third party, based on the relevant characteristic, who is not present: see Taylor v DPP  EWHC 1202 (Admin). Accordingly, an offence committed against one person (or many persons) but motivated by hostility towards another person or persons on the basis of their perceived disability would seem to satisfy the statutory test.
The following cases on racially and religiously aggravated offences illustrate the approach that the courts have adopted when interpreting the law.
Evidence of words (spoken or written) or actions that show hostility towards the victim will be required. "Demonstrations" of hostility often involve swear words, for example: "black bastard" (R v Woods  EWHC 85) or "African bitch" (R v White  EWCA Crim 216). In RG & LT v DPP  EWHC 183 May LJ said "It may be possible to demonstrate racial hostility by, for instance, holding up a banner with racially offensive language on it".
In R v Rogers (2007) 2 W.L.R. 280, the defendant was involved in an altercation with three 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 a particular group, even if that was not correct. The House of Lords added that the fact that the offender's hostility was based on other factors in addition to racist hostility or xenophobia was irrelevant. The court also observed that the necessary hostility could be demonstrated by the wearing of swastikas or the singing of certain songs.
The demonstration of hostility need not be based on any malevolence towards the group in question. Disposition at the time is irrelevant: see DPP v Green  EWHC 1225 (Admin.) and R v Woods, in which it was irrelevant that the offender, who used racially abusive language to a doorman after being refused admission, might well have abused anyone standing in the victim's place by reference to any obvious physical characteristic.
The motivation based on hostility need not be the sole or main motivation for the offence; it may also be motivated by other reasons. In DPP v McFarlane  EWHC 485 (Admin), the defendant shouted threatening and racist abuse at the victim after finding the victim parked in a disabled bay in which the defendant was entitled to park. It was immaterial that the defendant may have had an additional reason for uttering the racial words in question. Applying this principle, for example, where a wheelchair user is verbally abused by a passenger for causing the train to be delayed whilst ramps are sought, it is immaterial that the main reason for the passenger's anger is the fact of the delay.
The victim's reaction to the hostility is not relevant. See R v Woods, in which the victim was called a "black bastard" but said in evidence that he was "not bothered" by such comments. The Administrative Court found that the use of racist abuse during the commission of the basic offence made out the test for racial aggravation.
Demonstrated: multiple offenders
Prosecutors will need to analyse carefully the facts of a particular case to determine whether a particular offender can be said to have participated in a demonstration of hostility.
In R v Davies and Ely  2 Cr App R (S) 148 (29), a joint allegation of wounding with intent, the fact that one offender uttered words of racial abuse during the attack did not make all guilty of the aggravated offence, on the facts of the case, and the defendants should not be so sentenced when the evidence did not identify the one who uttered the words.
However, in RG and LT v DPP May LJ said that, "an offender may demonstrate racial hostility by joining in the activities of a group of people where a sufficient number of members of the group are themselves demonstrating racial hostility, and where the defendant's adherence to the group is such as to go beyond mere presence within the group, but so as to associate himself or herself with the demonstration of racial hostility which the group as a whole is displaying".
How to prove an offence was aggravated within the meaning of s146 of the Criminal Justice Act 2003.
To assist prosecutors to build cases that will satisfy the criteria for an increased sentence under s146, the elements of each subsection that need to be satisfied are set out below, followed by the evidence that will be necessary or useful to establish those elements.
A. Demonstrating hostility
The elements to be satisfied are that:
- The offence to be sentenced has one or more identifiable victims.
- The victim (or one of them) has a disability (i.e. some physical or mental impairment) or there is evidence that the offender presumed that he or she did so at the time of the offence.
- The offender, by words or deeds or other indication, demonstrated (i.e. actually manifested or indicated) some hostility towards the victim based on the actual or presumed disability. Where the offence itself involves some hostile act towards the victim (i.e. an offence of assault) there must additionally be some evidence of a demonstration of hostility on grounds of the actual or perceived disability. It need not be proved that the offender was actually motivated by any malevolence on grounds of the disability but it must be shown that, viewed objectively, he did in fact make some outward indication of hostility on that ground. Verbal abuse, referring to the disability or a feature of it, will suffice provided it actually demonstrates hostility towards the victim's disability. Expressions of, or behaviour consistent with, contempt for the individual victim is unlikely alone to suffice, unless it can be shown to amount to the necessary demonstration of hostility based on the actual or presumed disability.
- The demonstration of hostility must have occurred at the time of or immediately before or after the conduct element of the substantive offence.
- In any case involving multiple offenders, consider first whether there is evidence that each offender, by his behaviour in committing the conduct element of the substantive offence, associated himself with the demonstration of hostility proved (in which case all will be liable for the aggravating feature). If there is no such evidence, can it be shown that the individual offender was himself responsible for the demonstration of hostility relied upon?
The following evidence will be necessary:
- Evidence of the utterance, doing or showing of any indication of hostility towards the victim. The evidence should be as particular as possible as to the terms of the indication of hostility.
- Evidence that the victim is disabled.
- Alternatively and/or additionally, evidence that the offender either knew or presumed that the victim had a disability.
- Evidence that the hostility referred to in (1) was based on the actual, known or presumed disability of the victim.
- Evidence that the demonstration of hostility relied upon was more or less contemporaneous with the conduct element of the offence, or that it can immediately be related to it in time.
In addition, evidence of some malevolence towards the victim based on his or her actual or presumed disability, although not necessary, will be useful. This need not necessarily be contemporaneous to the substantive offence.
It should be noted that mere evidence of the commission of the substantive offence against a disabled victim will not suffice. That is not to say that it is irrelevant: evidence of the commission of an assault offence or one that involves the use or threat of violence may well be good evidence of the relevant hostility being present or demonstrated. Typically, however, there will be another explanation for the commission of the offence and so further evidence of a specific, express demonstration of hostility based on disability will be required.
B. Motivated by hostility
The elements to be satisfied are that:
- The offender can be shown to harbour a hostility towards a person or persons who have a disability or a particular disability (some actual physical or mental impairment) or are presumed to.
- At least one reason why the offender committed the offence was his hostility towards that person or such persons who have or are perceived to have a disability i.e. his purpose or incentive for committing the substantive offence included that hostility, even if it was also motivated by other reasons. It need not be shown that it was his sole or main motivation.
- It need not necessarily be the case that the immediate victim of the offence has a disability or the particular disability. Indeed, it is not necessary that there is one, or more than one, victim of the offence, provided that the directed hostility is one of the motivations. For example, an offence may be directed at:
- someone collecting for a disabled charity;
- the premises of such a charity; or
- the partner, child or friend of a disabled person.
The following evidence will be necessary:
- Primary evidence, whether direct or circumstantial, from which it can be deduced or inferred that the offender has a hostility towards people (or one person) with a disability or a particular disability. The kind of evidence will vary from case to case but may well include, for instance:
- words, whether contemporaneous or not;
- social media postings;
- presence with others promoting such hostility or association with them;
- previous incidents of hostility, e.g. targeting only disabled persons as the victims of criminal attacks or forms of abuse, such as a disabled person's house for criminal damage but no other houses in the same street; and
- previous convictions for offences directed at similar victims.
- Evidence from which it can be inferred that the current offence is motivated by the hostility referred to. In some cases the existence of the hostility and the fact of its contribution to motivation may derive from the same evidence and may be direct and simple: for example, the words accompanying the conduct element of the offence, as reported by the victim, may make clear the hostility of the offender for disabled people and the association of the feeling with the commission of the offence. In other cases a more determined search for such evidence will be necessary.
In cases where the obvious motivation for the commission of the offence is common to all such offending (theft, robbery, sexual offending, drugs offending, etc.) there will have to be discrete, additional evidence of motivation which displaces the obvious inference.
In cases where the offence charged usually has a fact specific motive (public order offences directed at individuals, offences against the person, etc.), it may be that the primary evidence readily gives rise to the conclusion that the hostility is based on disability. If not, some further, secondary evidence of motive will be necessary.
Actions that may amount to evidence of hostility
Disabled people experience numerous forms of harassment, some of which will amount to criminal offending. Some forms of harassment may be used as supporting evidence of hostility, under either the "demonstrated" or "motivated" limb of s146.
The following actions are examples of types of harassment commonly reported by disabled people. Where an offence is accompanied by any or a combination of these actions, or the actions form part of the offending or the background to the offending, prosecutors should consider whether the actions and other evidence in the case amount to "hostility" under either limb of s146:
- Actions relating to disability and mobility aids. For example:
- Carers or perpetrators of domestic violence may exploit someone's impairment by moving aids out of reach, or by withholding food, water, communication, money or medication.
- Throwing or kicking away a walking stick or walking frame, or using these objects as weapons against the disabled person.
- Actions relating to accessibility aids. For example:
- Removal of an access ramp, preventing the disabled person from gaining access to transport or a building.
- Use of an access ramp as a weapon, such as throwing the ramp at the disabled person.
- Challenging the right of a disabled person to use accessible facilities, such as reserved parking, or reserved seating or spaces on public transport; or showing impatience or annoyance towards disabled people using such facilities.
- Targeting only disabled persons' homes for crimes (e.g. criminal damage; burglary), which are sometimes identified by mobility aids, such as adapted parking spaces, ramps and other adaptations outside the properties.
- Staring or laughing at or mimicking the disabled person.
- Filming the offending, such as a physical or sexual assault.
- Filming and uploading images of disabled persons, possibly with abusive comments, onto social networking sites.
How to distinguish s146 cases from other crimes committed against disabled people
When seeking to prove a hate crime and apply for a s146 uplift, we seek to draw the inference that the targeting is a demonstration of hostility or is motivated by hostility. However, in many cases there will be an alternative inference that can be drawn.
The following analysis of some common crime types may assist reviewing lawyers to determine whether the evidence in a case is sufficient to meet the s146 criteria.
For example, theft of a wallet from a blind person. The equally obvious reason for selection of the particular disabled victim is that it renders the commission of the substantive offence easier, and lessens the likelihood of being apprehended by the victim. In other words, offenders tend to pick easy targets, such as the smallest or drunkest or least mobile person to rob or steal from.
If both inferences - hostility / easy target - are equally consistent conclusions from the facts, the inference relating to hostility is unlikely to be proved. For this reason, many offences against disabled persons, even when characterised by exploitative behaviour, or taking advantage of the person, or contempt for the person, may not amount to a hate crime for the purposes of s146.
In the case of sexual offences, similar considerations arise. It may be that the motive of the offender in committing the offence against a disabled person derives from a desire for sexual gratification or to exert power or control through sexual violence. In such a case further evidence of hostility would be necessary, beyond merely that the offender was aware that the victim was disabled.
Offences against the person
In these cases, very often the motivation for the violence will be apparent and capable of proof. Where it appears motiveless but is accompanied by a sufficient demonstration of hostility, then the first limb of s146 may well be satisfied. Where there is no such demonstration and no obvious contemporaneous evidence of motive, the suspicion that the case is one of disability hate crime may arise. In such a case, it will be necessary to find other evidence of the animosity of the offender towards persons with a disability. For example: the offender's behaviour on other occasions; previous utterances; and possession of material or articles.
To ensure that 'vulnerable' and 'intimidated' witnesses have access to the support they need, it is important for prosecutors to be familiar with CPS Operational Guidance in relation to the Victims' Code and with legal guidance on Special Measures.
The use of Victim Personal Statements should be encouraged in all hate crime prosecutions and requests should be made to the police at the earliest opportunity. A Community Impact Statement (CIS) may also be made to show the impact of offending on the wider community. For more information, please see the CPS guidelines on the use of CIS in hate crime cases.
Victims of hate crime are entitled to an enhanced service under the Victims' Code and in the event of a decision to end the case or to substantially alter charges; the victim must be notified of the reasons within one day. The victim should also be advised how they can access further information from the CPS and seek a review of the decision.
A meeting must be offered to the victim in hate crime cases in accordance with the Victims' Code. The meeting could be a dedicated teleconference or a face-to-face meeting.
A meeting is not required when the CPS makes a decision not to prosecute during a charging consultation save for in homicide cases.
In cases with a disability element - as in all cases - the reviewing prosecutor must apply the Code for Crown Prosecutors with regard to the determination of the public interest. The CPS prosecutes on behalf of the public at large and not just in the interest of any particular individual. However, when considering the public interest, prosecutors should always take into account the consequences for the victim of the decision whether or not to prosecute, and any views expressed by the victim.
Many disabled people do not report crime to the police because of a lack of confidence in the criminal justice system. When offences are eventually reported, previous failures to report should not be seen as diminishing a witness's credibility.
In cases where the victim or witness has reported a case to the police, the defendant has been charged, and the victim or witness then decides that they no longer wish to give evidence, it is essential that the police are asked to make full enquiries into why support for the prosecution has been withdrawn. The CPS must:
- 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, consult the Area Hate Crime Co-ordinator.
The College of Policing Hate Crime Operational Guidance (2014) contains guidance on the information the police should provide to the CPS to accompany a withdrawal statement.
As a result of receiving the withdrawal statement and accompanying police report, prosecutors may need to consider whether further charges, for example, witness intimidation or harassment are appropriate. It may also be appropriate to ask the police to offer the victim the services of a specialist support agency if this has not already been done.
The prosecutor should also liaise closely with the Witness Care Officer to establish what support has been provided to the victim and to establish whether it would be appropriate to offer the victim the services of a specialist support agency if this has not already been done. The prosecutor must also have regard to any special measures that may help the victim or witness to give evidence.
Continuing a case where the victim indicates a withdrawal of support
If a special measures application is not possible or the victim remains unwilling to give evidence, consideration must be given to whether any of the following options is possible and appropriate:
- proceeding without using the victim's evidence; for example, by relying on statements from other witnesses, 999 call recordings, admissions in interview, CCTV evidence, scientific evidence, photographs and officers' statements;
- 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.
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 give evidence;
- whether there is an on-going relationship between the victim and the defendant;
- if there is an on-going 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.
Section 169 of the Serious Organised Crime and Police Act 2005 allows the court to issue a witness summons if it considers it to be in the interests of justice to do so. 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.
If the reason for a victim or witness's withdrawal is based on fear or intimidation, the prosecutor needs to have such evidence brought to their attention. This will allow appropriate decisions to be made about any applications under section 116(2)(e) of the Criminal Justice Act 2003. Such applications are only likely to succeed where there is other evidence to put before the court. Section 116 applications are often unsuccessful when the victim is the only witness to the offence, because in such cases it is very difficult to satisfy the court that justice is being served when the defence cannot cross-examine the only witness against them.
If there is insufficient evidence to continue without the evidence of the witness or victim, the reviewing prosecutor will need to weigh up whether the facts of the case are sufficiently serious to require the victim or witness to attend court under a witness summons .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.
It is CPS policy not to accept pleas to lesser offences, or a lesser basis of plea, or omit or minimise admissible evidence of disability hostility 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.
Statutory sentencing duty
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 aggravated by hostility based on disability (Section 146 Criminal Justice Act 2003).
Prosecutors have a duty to present all relevant material to allow the court to pass sentence in accordance with the law. Disability hostility makes an offence more serious and the court has a duty to take this into account when it sentences a defendant.
Where the evidence to support s146 has been identified, instructions to the prosecuting advocate should include a request that an application for an uplift be made, with the basis for this clearly set out.
There is no procedure laid down by which the court is to determine whether a s146 uplift should be applied.
If there is a trial, although not an element of the substantive offence, ideally the issues will at least have been canvassed during the evidence, so that the defendant has an opportunity to deal with them. Care should be taken not to use this as an excuse to introduce evidence that is otherwise strictly inadmissible to prove the elements of the offence, if it has no relevance to the matter in issue in the trial.
Following conviction, whether after a trial or on a plea of guilty, the issue should form part of the presentation of the case on sentence. Any basis of plea should be scrutinised before acceptance, to ensure that the issue is either accepted or not denied. In most cases involving a plea, defendants are unlikely to accept that s146 applies to their case. See the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise for the principles to be followed when considering the acceptance of a plea.
In the event of a dispute, the burden of proving the elements of either limb of s146 is on the prosecution and the standard is the criminal one. Case law on racially aggravated offences confirms that the judge should not draw an inference that the offence was so aggravated and pass sentence on that basis without putting the defendant on notice and allowing him to challenge the inference: see R v Lester 63 Cr App R (S) 29.
A Newton hearing may well be necessary. See the legal guidance on Newton Hearings for the procedure to be followed.
After hearing the relevant evidence, the court should state in open court whether the aggravating feature has been found proved: see s146(3). If it is not found proved, s146 will not apply and the court will proceed to sentence accordingly. The sentence may still be increased (although to a lesser degree than where s146 applies) if the victim was vulnerable: see below. If the aggravating feature is found proved, s146(3) will apply and any sentence that the court would have imposed for the "basic" offence should be increased accordingly.
Prosecutors should be familiar with the approach that courts take to sentencing in a case to which s146 applies. This is set out in the section on Hate Crime in the Magistrates' Court Sentencing Guideline.
The Guideline mirrors the guidance given in R v Kelly & Donnelly  2 Cr App R (S) 73 CA, which addressed the appropriate increase in sentence for racial aggravation and 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 s145 Criminal Justice Act 2003 applies, it should also be taken as applying to the aggravated sentence provisions of s146 in relation to disability hostility.
Prosecutors should be aware of other guideline cases relating to racially aggravated offences that can apply to disability hostility, such as:
In R v Fitzgerald  EWCA Crim 2875 the Court of Appeal acknowledged the guidance contained in Kelly and Donnelly but distinguished it by noting there will be cases in which the racial aggravation of the offence is so inherent and integral to the offence itself that it is not possible sensibly to assess the overall criminality involved in such a discrete way. In such cases, the Court must assess the seriousness of the conduct involved and its criminality as a whole.
The position was further considered in R v Higgins  EWCA Crim 708. The Court of Appeal reaffirmed the Kelly and Donnelly approach and noted this was now adopted by the Sentencing Guidelines for assault cases.
The court should always be invited to apply the staged approach that the Court of Appeal and the Sentencing Council recommend unless it is a rare case that relies on verbal abuse alone and where there are no abusive words other than the hate words, the court should be invited to record and state in open court why it cannot follow the staged approach and prosecutors should ensure those comments are recorded. Note that under the Assault Guideline, the s146 statutory aggravating factor should be taken into consideration at step 1 (determining the offence category). There must be no subsequent element of double counting.
Prosecutors should also be aware of the courts' powers to make any ancillary orders when sentencing. For more information, see the legal guidance on Sentencing - Ancillary Orders.
Unduly lenient sentences
It is possible that a crime that has been sentenced as a disability hate crime may become the subject of an unduly lenient sentence referral (for example, wounding with intent, rape and robbery).
See the legal guidance on Unduly Lenient Sentences.
Schedule 21 - Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence)
Schedule 21, paragraph 5(2)(g), provides for a starting point of 30 years (rather than 15 years) for the minimum term for a life sentence for murder aggravated on the grounds of the victim's disability (or transgender identity). S146 uplifts will not apply in such cases. For more information, see the legal guidance on Homicide: murder and manslaughter.
In cases in which s146 does not apply, if there is evidence that the victim was vulnerable due to their disability, this will make an offence more serious for sentencing purposes.
In such cases, particularly where the victim was considered an easy target due to their vulnerability, cases should be built and presented in such a way to ensure that the judge is able to properly reflect the seriousness of the offence when passing sentence. This approach was approved in R v Bridge  EWCA Crim 2270.
Depending on the nature of the disability of the victim, some circumstances will be covered by charging specific offences where the condition of the victim is an element of the substantive offence. For example:
- The offence by a care worker of sexual activity with a person with a mental disorder, under s38 of the Sexual Offences Act 2003.
- The offence by a carer of ill-treatment or wilful neglect of a person who lacks capacity, under s44 of the Mental Capacity Act 2005.
Prosecutors should have regard to the relevant Sentencing Council Guidelines, including the Overarching Principle: Seriousness Guideline. Under many of the Guidelines, including those relating to Robbery, Theft and Burglary, Sexual Offences, Domestic Violence, Assault and Fraud, the seriousness of the offence, and hence the severity of sentence, is increased where the offender is more culpable because he targets a victim who is vulnerable due to disability, or where a greater degree of harm is caused, due to the disabled victim being vulnerable.
All Sentencing Council Guidelines can be found on the Sentencing Council website.
Where appropriate, prosecutors should explain to the court why s146 does not apply and why the sentence should nevertheless be increased (albeit not to the degree that would apply in a s146 case), due to the victim's vulnerability. Relevant sentencing Guidelines should be highlighted, including any aggravating factors relating to the disability or vulnerability of the victim. Judges should be encouraged to state in their sentencing remarks the basis for any increase in sentence due to the victim's vulnerability.
The social model of disability recognises that many people with disabilities do not consider themselves to be "vulnerable" and may be offended by the use of that word to describe their position.
This guidance does not suggest that a disabled person is vulnerable per se. Where the guidance refers to a "vulnerable" victim, witness or person, it does so in the context of the person being vulnerable to a particular criminal offence in particular circumstances, or in the context of a relevant Sentencing Guideline or an application for special measures for a "vulnerable witness" under s16 of the Youth Justice and Criminal Evidence Act 1999.
Prosecutors may use the term "vulnerable" in these contexts in court.
Other vocabulary may be considered inappropriate by disabled people and prosecutors should avoid using potentially offensive language. For example, prosecutors should avoid saying:
- "bullying" - this term is more commonly used in relation to the behaviour and experience of children and young people. The use of this word can understate the seriousness of incidents that involve intimidation, persecution, terror, fear and harassment i.e. behaviours amounting to criminal offences. Even "mere" queue barging, ridicule, mimicking and exclusion can cause harassment, alarm or distress, particularly if repeated.
- "has a mental age of" - comparison of an adult person with a child is often considered to be demeaning and unhelpful. Better practice is a reference to the person's level of social functioning and understanding.
- "mate crime" - this refers to people with learning disabilities or mental health issues being "befriended" by people who then exploit them. The term 'mate crime' is used by some disability organisations within the disabled community to raise awareness of the issue. It is not CPS policy to use this term, as it is potentially confusing to people with learning disabilities.
Area Hate Crime Co-ordinators are available to assist prosecutors on a range of hate crime related issues.