The Crown Prosecution Service (CPS) has issued controversial new guidance on disability hate crime which could cut the number of successful prosecutions, after a senior government barrister concluded that the existing guidelines were unworkable.
Disability News Service (DNS) understands that CPS and senior police officers believe that it has been almost impossible to persuade a magistrate or judge that a crime was motivated partly by hostility towards disabled people.
This means that few offences receive the increased sentences given to crimes accepted by the courts as disability hate crimes.
Disability News Service (DNS) has been reporting on the criminal justice system’s failings on disability hate crime since 2009, while the police, prosecutors and probation service – and other agencies, including the courts – have repeatedly been urged to improve.
Under section 146 of the Criminal Justice Act 2003, the courts must increase the sentence for any offence where a defendant has demonstrated hostility towards disabled people, or where the offence has been shown to be motivated by hostility.
The previous CPS guidance argued that this “reflects the significant impact hate crime has on the victim and on the community”.
But following a report by a senior government barrister, which was critical of the current system, DNS understands that offences will now only be treated as disability hate crimes by police and prosecutors if they are clearly motivated by disability-related hostility.
But this is likely to be controversial – and to split opinion among hate crime campaigners – as it could easily lead to fewer successful hate crime prosecutions.
Under the new guidelines, to be published today (Friday), courts are more likely to treat disabled victims of violence and abuse as “vulnerable” rather than as victims of hate crime.
This could still result in a stricter sentence – on the grounds that the victim was in a vulnerable situation – but could be seen as a significant step backwards in the long fight for recognition that disabled people are frequent victims of hate crime.
And the sentence uplift for “vulnerability” is likely to be lower than that for a disability hate crime.
A CPS spokeswoman said the new guidance “encourages the use of section 146 where possible, and reminds prosecutors that where an application for an uplift under section 146 is not appropriate, the vulnerability of a victim due to their disability may still make an offence more serious and so prosecutors should present the case in a way which enables the judge to reflect this in sentencing.
“A nationwide training programme for all lawyers is also being planned and is a sign of our commitment to tackling this nasty crime.
“Hate crime continues to be a key priority for the CPS and we are committed to continue applying for sentence uplifts wherever the evidence and the law allows.”
She said that she could not comment on the government barrister’s advice, and added: “Whenever the CPS seeks legal advice, the content of that advice is always confidential.”
Stephen Brookes (pictured), one of the coordinators of the Disability Hate Crime Network, said the new guidance was “not ideal” but was “a step forward in one way”.
He said he was “not massively disappointed”, and added: “Nobody used [section 146]because nobody knew how to use it.
“It is going to lead to more successful section 146s, but more importantly it is going to lead to better prosecutions at the vulnerability level.
“It’s a better solution because it takes out some of the mud from what we have got. At least it provides some clarity.”
But another coordinator of the network, journalist and author Katharine Quarmby, who has played a key role in raising awareness of disability hate crime over the last eight years, warned that the new emphasis on “vulnerability” could be a backward step.
Even if crimes receive a higher sentence because of the victim’s “vulnerability”, she said the effect of declaring an offence a disability hate crime was crucially important.
And she said that offences often start off with criminals grooming a disabled person who has found themselves in a vulnerable situation – perhaps because of a lack of support – but end up as hate crime.
Quarmby – author of a pioneering book on disability hate crime, Scapegoat – pointed to the case of Kevin Davies, a young disabled man who was befriended, and then held captive in a locked garden shed for nearly four months, fed scraps of food, and humiliated and tortured by his “friends”, while his benefits were stolen.
She said: “They say that it is now crystal clear what a disability hate crime is, as opposed to a ‘vulnerability’ crime.
“They are convinced that they will know a section 146 crime and therefore they will immediately leap to ask for section 146 to be imposed.
“I am sceptical. I think we still don’t get away from a blurring of the boundaries. Cases start as one thing and turn into another, a point made by Ken Macdonald, the former director of public prosecutions, who was the first head of the CPS to take the issue seriously.”
CPS has promised to review the effectiveness of the new guidance early next year.
In May, a report by HM Crown Prosecution Service Inspectorate, HM Inspectorate of Constabulary and HM Inspectorate of Probation concluded that the police, CPS and probation service had failed to implement recommendations they had made in 2013 on dealing with disability hate crime.
The 2013 report, Living in a Different World, said the criminal justice system had let down victims, pointing out how failings across the system helped lead to some of the most notorious disability hate crimes, including the deaths of Francecca and Fiona Pilkington, David Askew and Michael Gilbert.
For a collection of DNS news stories about disability hate crime, visit www.longcaresurvivors.co.uk