The changes to the law – proposed by the Law Commission in a consultation launched this week – could also make it easier to secure stricter sentences for hostility-related offences.
The consultation document was published just days after the Crown Prosecution Service failed to convince a judge – under section 146 of the Criminal Justice Act 2003 – to increase the prison sentences faced by two day centre care workers, on the grounds that the offences were motivated by disability-related hostility.
The two nursing assistants were found guilty of hitting, slapping and punching disabled people at the Solar Centre in Doncaster, but Judge Rosalind Coe refused to treat the offences as hate crimes.
Campaigners were also appalled that the offences committed by the care workers who admitted similar abuse at the Winterbourne View private hospital were not treated as hate crimes, when the offenders were sentenced last autumn.
Now – following discussions with organisations including Disability Rights UK and the Disability Hate Crime Network – the Law Commission is suggesting the government should widen existing hate crime laws in England and Wales.
Among its proposals, the Law Commission suggests new sentencing guidelines on the use of section 146, and for any hate crime element to be recorded on the offender’s criminal record and the Police National Computer.
It also suggests that crimes such as assault or criminal damage that are currently prosecuted as “aggravated” offences – with higher maximum sentences – on the grounds of race or religious hate could be extended to hostility on the grounds of disability, sexual orientation or transgender identity.
The Law Commission suggests that this could be done if measures taken to improve the application of section 146 are seen as “inadequate”.
It also proposes extending laws on publication of material intended to stir up hatred against people on the grounds of their race, religion or sexual orientation.
The commission says it believes there is “a case in principle for extending the stirring up offences to include the stirring up of hatred on grounds of disability and transgender identity”, because this would “capture a unique, specific and grave type of wrongdoing not covered by the existing law: the spreading of hatred against a group”.
The Law Commission concludes in the consultation document that “the enhanced sentencing regime under section 146 is not a sufficient solution to the problem”.
The review was commissioned by the Ministry of Justice, following a commitment in the government’s cross-departmental hate crime action plan.
26 June 2013