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Prosecuting disability hate crime: the next frontier - DPP's speech to the University of Sussex

02/03/2011

John (not his real name) is a 45 year old, disabled man, who lives alone. He was born with Cerebral Palsy. As a result, he has difficulty with walking and has to use a walking stick for support. Although, he walks with an obvious limp and stumbles frequently, his independence is very important to him so he tries to get out as much as possible.

One afternoon, at approximately 3pm, he was on his way to his local post office, which is about ten minutes walk away from his home, when he became aware of a group of youths, probably around five in number, who were milling around on the opposite pavement. He had seen these young men frequently around the local area. He knows that they have a reputation locally for causing a nuisance, and indeed, they have shouted 'things' at him in the past.

On this occasion, one of the group, blocked his path, and started to stare at him, while another member of the group started to abuse him about the way that he walked, and then started to mimic his movements by throwing his arms and legs around in exaggerated movements. While this was happening the other members of the group were laughing hysterically. John felt insulted, disgusted and humiliated. The incident continued, until a customer in one of the nearby shops intervened, and told the youths to leave John alone.

As John knew who the youths were, he reported the incident to the police and they were all subsequently arrested. However, since the incident took place John has been unable to leave his flat on his own, because he is afraid that a similar incident will occur. Whereas he used to leave his flat several times a day to go to the local shops, Post Office or the local community drop in centre where he would meet his friends. He now only goes out if accompanied by his Social Worker or his sister who lives ten miles away. His sister has three young children to look after so he doesn't like to impose on her and instead spends days on end in his flat without seeing anyone.

Today is 2nd March 2011. You might think that the facts I have just set out relate to a different time or place, or perhaps that they are an account of an unusual occurrence. But, I'm sorry to say, those facts are typical of the very many disability hate crimes that the Crown Prosecution Service deals with every year.

And that's just the cases we know about. Although there is clear evidence that disability hate crime is widespread, I have no doubt in my mind that many thousands of cases go unreported year on year.

The Disability Rights Commission's Attitudes and Awareness Survey (2003) revealed that 22 per cent of disabled respondents had experienced harassment in public because of their impairment. Incidents of harassment were more acute among 15-34 year olds with 33 per cent of this group of disabled people experiencing harassment (DRC, 2003).

Eight per cent of disabled people in London suffered a violent attack during 2001-02 compared with four per cent of non-disabled people. Research by Greater London Action on Disability (GLAD) found that, "The attacks have a major impact on disabled people. Around a third have had to avoid specific places and change their usual routine. One in four has moved home as a result of the attack." (GLAD 2002).

Research by Mencap demonstrated that 90 per cent of people with a learning disability had experienced bullying and harassment. Sixty-six per cent of people with a learning disability have been bullied regularly with 32 per cent stating that bullying was taking place on a daily or weekly basis (Living in Fear, 2000). Another Assault MIND (2007) and the Equality and Human Rights Commission research Promoting the Safety and Security of Disabled People (2009) found similar rates of targeting.

Yet the number of cases referred to the CPS to consider for charging, although clearly rising, is very low. In 2007-08, we considered 279 cases and charged 187 individuals with disability hate crime; in 2008-09 the corresponding figures were 444 considered and 292 charged; and in 2009-10, 720 considered and 506 charged.

Although there is no direct read across and the temptation to draw comparisons should be resisted, the figures for other forms of hate crime are significantly different. So far as racially and religiously aggravated hate crime is concerned, in 2007-08 the CPS considered 12,998 such cases and charged 9,115 individuals with offences; in 2008-09 we considered 11,845 cases and charged 8,673; and in 2009-10 we considered 12, 927 cases and charged 9,214. The numbers for homophobic hate crime are also higher. In 2007-08 the CPS considered 1219 such cases and charged 758 individuals with homophobic hate crime; in 2008-09 we considered 1090 cases and charged 710; and in 2009-10 we considered 1373 cases and charged 907.

And it's not just the total numbers that vary. The prosecution success rate for racially and religiously aggravated hate crime is 82.4 per cent; for homophobic hate crime 80.6 per cent; yet for disability hate crime the success rate drops to 75.7 per cent.

So what is it that causes this phenomenon? Is it that disability hate crime is not properly recognised in law? I think not.

Sections 145 and 146 of the Criminal Justice Act 2003 place a duty on courts to increase the sentence for any offence shown to be motivated by hostility based upon the victim's actual or presumed race, religion, disability or sexual orientation; or for any offence where a defendant demonstrated hostility based upon the victim's actual or presumed race, religion, disability or sexual orientation. For the purpose of section 146, 'disability' means any physical or mental impairment and section 146 also applies in cases where the offender has assumed a person is disabled, whether or not that assumption is correct. And the court must state in open court that the offence was committed in such circumstances.

To my mind this offers wide protection. However, others have observed there is no offence of inciting hatred based on disability which is in marked contrast to the position when it comes to inciting hatred based on race, religion or sexual orientation. And, in addition, it has been argued there is an anomaly in schedule 21 of the Criminal Justice Act 2003 which provides a high starting point of 30 years for murder that is racially or religiously aggravated or aggravated by sexual orientation, but no equivalent provision for murder that is aggravated by disability.

Is there then a problem with CPS policies when it comes to prosecuting disability hate crime? Again I think not.

In recognition of the particular complexities surrounding the prosecution of hate crime, the CPS has developed a suite of hate crime policies and guidance for prosecutors. All of these policies were developed with the involvement of specialist voluntary sector organisations and people directly affected by the policies. Each policy explains the relevant law, deals with the application of the Code for Crown Prosecutors, our approach to victim and witness issues and sentencing.

And there is clear evidence that it is possible successfully to prosecute disability hate crime.

Let me make good that assertion by giving an example.

A mother with her two children, a daughter who was 21 years old and visually impaired, and a son who was 16 and has Aspergers syndrome, lived two doors from the defendant. They were subjected to a course of harassment over nine months. The harassment came from a group of youths, the defendant being the main instigator and ring leader. As well as verbal abuse, stones being thrown and damage to property, the defendant attacked the visual aid of the visually impaired woman causing her to fall. Verbal abuse included calling the daughter a 'fat pirate' (she wore a patch), the son was called a 'stupid fucking spacka'.

The CPS authorised a charge under section 2 of the Protection from Harassment Act. The charging lawyer immediately identified this as a hate crime and referred to section 146 of the Criminal Justice Act 2003 on the charging records. The defendant pleaded not guilty and a full summary trial was conducted in the magistrates' court in early 2010. The defendant was convicted and sentenced to 22 weeks (the maximum being 26). The court applied section 146 at the sentencing stage and granted the application for a restraining order. The defendant appealed his sentence and the area hate crime coordinator conducted the appeal.

On appeal, the judge and magistrates were appalled by the defendant's behaviour and dismissed the appeal. And at the conclusion of the case, the mother rang the witness care service and thanked the witness care unit for a good service.

Assuming then that section 146 properly recognises disability hate crime, that CPS policies are clear and robust and that it is possible successfully to prosecute disability hate, the search for an answer to the question of why so few cases reach court and succeed leads inevitably to wider and more profound questions which touch on the confidence that disabled people have in our criminal justice system and the linked issue of whether there is sufficient support for disabled victims and witnesses where cases go to court.

I do not pretend to have full answers to these questions and I will not attempt to provide a comprehensive analysis of the problem. But it does seem to me that the following points have some validity.

First, the idea of people being targeted as a victim of crime because of their disability is still relatively new. It is not fully understood by the general public and, more surprisingly perhaps, is not always recognised by the victims of such behaviour or by those with responsibility for dealing with it.

Many disabled people do not appreciate that constant name calling, mimicking and bullying which often escalates to more serious forms of harassment and violence are criminal activities. That may be because such behaviour is so widespread as to be considered routine. Unless we as a society recognise and confront this issue there is little prospect of more cases coming into the system and we will have missed a valuable opportunity to tackle this important area.

And even when disability hate crime is reported, those with responsibility to deal with it often advise victims to ignore all but the most serious of incidents. No one needs reminding of the facts of the Fiona Pilkington case.

Then there is the difficulty in distinguishing hostility from vulnerability. In my view, it is important to recognise the difference between a vulnerable person and a vulnerable situation. Let me put this in context: an able bodied young person attacked while walking along a dark alleyway at night would not be described as a vulnerable person, but a disabled person who is abused for being disabled and then assaulted in broad day light on their way home could well find the offence committed against them classified as an assault on a vulnerable person, rather than a disability hate crime.

Calling a person vulnerable can confuse or conflate their situation with their identity. 'Vulnerability' is then seen as an innate characteristic of disabled people.

In fact we can all feel vulnerable in different situations and at different times in our lives. The challenge is to recognise that people can be vulnerable because they are in poor situations. By identifying a situation rather than an individual as vulnerable we place the blame firmly on the perpetrator, the one who exploited this social situation, and is all the more culpable for it.

Another factor that we have to recognise when dealing with the confidence that disabled people have in the criminal justice system is that even when action is taken and cases proceed to court, we as prosecutors are not exempt from criticism.

Evidence from some voluntary sector organisations and the high court decision in the case of FB two years ago suggest that prosecutors may be too ready to assume in some cases that victims and witnesses with disabilities are not reliable enough for a case to succeed or that, even if reliable, that they would not be able to give evidence in a way that would be accepted by a court. We also need to get better ourselves at recognising when a crime should be flagged as a disability hate crime.

We have worked hard to deal with both these issues, primarily within the Core Quality Standards that I have introduced and through which we monitor the handling of all types of cases. There is also support that can be given to victims and witnesses with disabilities and they are quite capable of giving not only reliable evidence, but compelling evidence.

The Youth Justice and Criminal Evidence Act 1999 allows special measures to be used to help vulnerable and intimidated witnesses give evidence. The measures include:

  • The use of screens
  • Giving evidence by live link
  • Giving evidence in private (applicable for sexual offences only)
  • Video recorded evidence in chief
  • Examination through an intermediary
  • Communication aids

Witness Care Units were introduced in England and Wales in 2005. They are staffed by the police and the CPS, provide victims and witnesses of crime with support before court, such as information about the progress of their cases and can refer victims and witnesses to specialist support services where appropriate.

And in 2008, pre-trial witness interviews were introduced. These can take place in any case in which the prosecutor considers an interview would assist in assessing the reliability of the witness's evidence and/or to assist in understanding complex evidence. The purpose is to enable the prosecutor to reach a better informed decision about any aspect of the case. These interviews are often used to assess the needs of disabled witnesses in order to ensure that the correct support is provided for the trial process.

I have no doubt that by making best use of this sort of support, our prosecutors can make a real difference.

Let me give an example.

In the case of James Michael Watts last year the defendant was convicted of a number of sexual assaults upon severely disabled women with profound communication issues. The victims gave their evidence by blinking or pressing buttons on their wheelchairs to indicate 'yes' or 'no'. They were believed by the jury and the defendant was convicted and his subsequent appeal was dismissed by the Court of Appeal.

The CPS view this conviction as a particularly significant achievement. But it is interesting to note, as reported in The Guardian in June 2010, under the headline 'Jim Watts is serving 12 years for abusing disabled women but is he a victim of a miscarriage of justice?', that the defendant's legal team argued on appeal that the victims were not safe witnesses. There is clearly more work to do.

The case of Christopher Killick, which was concluded in December last year, is just as interesting. Initially the CPS took the view that it was a case that could not be prosecuted, but on review we changed our mind and brought charges.

Mr. Killick, who himself was physically disabled, subjected his two male victims who had cerebral palsy to appalling acts of sexual violence over a prolonged period of time. He specifically selected his victims because he knew that they would be physically unable to resist him and because he knew how difficult it would for them to complain to others about what had happened to them. He also knew how emotionally vulnerable they were as they lived in somewhat isolated worlds and only socialized within a small group of people.

The victims were wheelchair-users and could not communicate without the use of voice machines or the help of intermediaries. But the prosecution and the court overcame these difficulties:

  • A pre-trial hearing was held with the judge to set timetables allowing for frequent breaks
  • BLISS symbols were designed to enable the victims to answer questions in detail and
  • screens were put in place to shield the victims from the defendant when they gave evidence

These examples show that we have come a long way from the days when a criminal case was considered to be a contest between the State and an individual defendant with only an unsupported walk on part for victims and witnesses. The right of victims to an effective investigation and appropriate prosecution is now well established under the Human Rights Act 1998 and the support available by way of special measures underscores the growing realisation that victims and witnesses have "rights" and "interests" that have to be protected in the criminal justice process, not just, as was often understood to be the case in the past, a "duty" to attend to give evidence.

But despite these developments, I think we are still in the foothills when it comes to disability hate crime and supporting victims and witnesses with disabilities. The current Inquiry by the Equality and Human Rights Commission into disability-related harassment and how well this is being addressed by public authorities is welcome. The CPS has given evidence to the Inquiry and will consider carefully its findings in due course.

Our position is, I hope, clear.

Safety and security, and the right to live free from fear and harassment, are fundamental human rights. Disability hate crime strikes at all disabled people by undermining their sense of safety and security in the community. For this reason disability hate crime should be regarded as particularly serious. Such crimes are based on ignorance, prejudice, discrimination and hate and they have no place in an open and democratic society.

Securing the confidence of those affected by disability hate crime and those that are targeted because of their perceived vulnerability because they are disabled is critical to the fulfilment of our duty to ensure that all people have equal access to justice.

We, as prosecutors, have made good progress recently. We have new monitoring procedures in place to check our performance and we can look on some of our recent cases with pride.

Having recognised that victims and witnesses have rights and interests as well as duties we need to ensure that we are listening carefully to what they have to say. To that end, we continue our work with colleagues in the criminal justice system and the voluntary and community sectors at national and local levels to develop best practice, and we will regularly review our policies in this area to ensure that we offer the best possible service to the disabled community. We should not underestimate the task ahead, and, as I have already said it is for society, too, to confront this issue.

But we would all do well to recognise that, to date, victims and witnesses with disabilities have not been well served by the criminal justice system.

Keir Starmer QC, Director of Public Prosecutions