Hate crime reform hopes hit by Law Commission

The government’s advisers on legal reform have been criticised after backing away from recommendations that would have strengthened the law on disability hate crime.

The Law Commission has discarded or watered down recommendations in two out of three areas of hate crime law that it made in a draft document last year.

The report came as new research from a leading campaigner revealed a catalogue of violent, hostile crimes against disabled people over the 12 months to May 2014.

Anne Novis compiled the list of links to reports in local and national news websites for a “shadow” report that will be submitted to the UN by the Reclaiming Our Futures Alliance, which will show how the UK government has implemented the UN disability convention.

Novis said her report – which she stresses is not a scientific study – shows media reports of 13 disabled people who had been murdered, and 95 separate disability hate crimes involving physical attacks and torture.

She says in a draft version of her report: “Misleading statements and statistics around welfare benefits fraud have been fed to the media, causing a backlash so severe against disabled people that we have seen a significant increase in verbal and online hostility and abuse.

“So much so that many disabled people fear going out alone, minimise their visibility and avoid certain places where they experience hostility.”

In its draft report last year, the Law Commission recommended that laws on publishing material intended to stir up hatred against people on the grounds of their race, religion or sexual orientation could be extended to disability and transgender identity.

But following a three-month consultation, the commission has now decided that there is no need for such a law.

Professor David Ormerod QC, law commissioner for criminal law, told Disability News Service (DNS) that the existing stirring-up offences “deal with an extreme and rare form of conduct”.

He claimed that extending them to disability and transgender identity would bring “few successful prosecutions and no practical benefits”, while existing laws could be used to prosecute threatening and abusive conduct and malicious or offensive communications.

He added: “Creating new stirring up offences might also stifle debate and limit opportunities to challenge offensive views and material on disability or transgender issues.”

The commission reached this conclusion even though 103 individuals and organisations who took part in the consultation agreed with extending the law – as well as all seven of those who responded using the easy-read form – and just 12 disagreed.

Last year, in its draft report, the commission agreed and said that extending the stirring up offences would “capture a unique, specific and grave type of wrongdoing not covered by the existing law”.

Mike Smith, who led the Equality and Human Rights Commission’s inquiry into disability-related harassment as its disability commissioner, said he was “very disappointed and surprised” by the Law Commission’s “perverse” conclusions on incitement, because “clearly, disabled people believe it does happen”.

He said the reason there was little evidence of incitement of hatred against disabled people was probably because there had been not yet been a framework to record or monitor the issue.

He added: “If existing laws are good enough, why aren’t they being used?”

DNS has confirmed that Smith was not asked to give evidence during the commission’s consultation process, while the commission appears to have failed to hold any consultation events with disabled people’s organisations.

The Law Commission review was commissioned by the Ministry of Justice, following a commitment in the government’s cross-departmental hate crime action plan.

The commission also looks likely to cause a further delay to extending the offences of racially and religiously aggravated crimes – which have higher sentences – to disability, sexual orientation and transgender identity.

Instead of recommending an extension, it said the government should commission a review that would look at how the criminal justice system should best protect hate crime victims.

Only if the government declines to order such a review should the aggravated offences be extended, the commission said.

The commission had originally suggested last year that the “aggravated” offences should be extended if measures taken to improve the application of the rarely-used section 146 of the Criminal Justice Act – under which judges are supposed to give stricter sentences for disability hate crimes – were seen as “inadequate”.

But the commission did recommend that the Sentencing Council issues clear guidance to judges on sentencing hate crimes, and that any offences aggravated by hostility – if proved during sentencing – should be recorded on the Police National Computer.

Novis said she was “seriously disappointed” with the recommendations, and accused the commission of “procrastination” over aggravated crimes.

She said: “How many times of current legislation not being used appropriately does it take for them to make it better?

“Section 146 is not being used properly. They say it in the report.”

She added: “I don’t see anything in there that will improve accessible equality of justice.”

Smith said he could “see the rationale” for a full review “as long as it comes up with an even better framework for hate crime than we have now”, but he said he “wouldn’t want to see any retrenchment”.

29 May 2014