Academics have called for a new hate crime act and other key legal reforms to address the “huge justice gap” that affects victims of disability hate crime, following a major two-year study.
Researchers at the University of Sussex, led by Dr Mark Walters*, have concluded that the way the criminal justice system deals with hate crime is significantly flawed, pointing to “the huge justice gap that exists for hate crime… which especially affects victims of disability hate crime”.
The report, Hate Crime And The Legal Process – Options For Law Reform, funded by the European Union’s Justice and Consumers Department, calls for major changes to hate crime law.
And it is critical of the government for failing to act, three years after the Law Commission called for a wider review of hate crime legislation in England and Wales, pointing out that the government has still failed to respond to those recommendations.
Disability News Service has repeatedly reported on how the criminal justice system has failed to treat cases in which disabled people have been the victims of brutal and degrading assaults – many of them violent killings – as disability hate crimes.
The researchers carried out in-depth interviews with senior Crown Prosecution Service (CPS) hate crime managers, judges, barristers, police officers, council staff, hate crime victims and staff at charities that support victims of hate crime.
Of about 110,000 hate crimes reported to police every year**, only about four per cent (4,342) result in increased sentences on the basis of “identity-based hostility”, which the report’s authors say shows a “significant ‘justice gap’ for hate crime”.
And they say that, despite “a myriad” of inquiries, guidance, research and lobbying by disability groups, much of the criminal justice system refuses to see the way that disabled people are often targeted by criminals as evidence of hostility.
Instead, they say, disabled people are often labelled as “vulnerable” victims, a failure which “continues to inhibit the enforcement of laws that are aimed at protecting disabled people from hate crime”.
One CPS manager told the study’s authors: “We’re very much trying to knock a square peg into a round hole trying to fit the facts into a form of language in the legislation that is not really designed to fit.”
As a result, the authors want new legislation that would make it much easier to prove an offence is a hate crime.
Instead of trying to prove a crime was motivated by hostility, they suggest a court should only have to prove that it was committed “by reason of” the victim’s disability, race, religion, sexual orientation, or transgender status.
Another of their recommendations is that hate crime motivated by the victim’s disability, sexual orientation or transgender status should be treated in the same way as those motivated by race and religious-based hostility, under the Crime and Disorder Act.
This would mean that section 28 of the act – which creates “racially or religiously aggravated offences” – would be extended to offences aggravated by hostility to disability, sexual orientation or transgender status.
But the study’s authors say they would like the government to go even further.
Because of the “piecemeal” way in which hate crime laws have been enacted over the last 20 years, there are now “different levels of legislative protection” for the current five recognised groups commonly targeted for hate crime.
To replace this, they want to bring all existing hate crime laws into a new hate crime act, which would create a new “aggravated” criminal offence whenever there is sufficient evidence of a hate crime.
The 214-page report raises detailed concerns about the way the criminal justice system deals with hate crime, particularly disability-related hostility.
And it devotes a separate section of the report to disability hate crime, because the authors say that “problems with prosecuting and sentencing disability hate crimes were so prevalent” among the experts they interviewed.
They say there is “a vast gap between the way that disability hate crimes are dealt with by the [criminal justice system] compared with other strands of hate crime”.
And they say it became clear that “most of the problems preventing the successful application of hate crime law for disability hate crime remain”, four years after a joint criminal justice inspectorate report highlighted the serious concerns.
One of the key concerns is the frequent refusal of judges to treat cases where an offender has selected a disabled victim because they are an easy target as evidence of disability-related hostility.
Only 11 per cent of disability hate crime convictions result in an increased sentence under section 146 of the Criminal Justice Act, according to CPS figures.
This means that, of the estimated 35,000 disability hate crimes reported to the police last year, just 84 – or 0.2 per cent – received a sentence uplift.
In most case, the judges increase sentences instead on the grounds of the victim’s “vulnerability”, which the researchers say “can serve to perpetuate a false representation of disabled people as innately weak, and as somehow incapable of caring for themselves”.
And they say it is “clear that most judges were yet to share this understanding of disability, or how labelling victims as ‘vulnerable’ can contribute to the marginalisation of many disabled people”.
There are also repeated criticisms of police forces, with the study saying that a “significant proportion” of disability hate crimes are not identified correctly by officers, often even when there is “evidence of a disablist slur having been expressed during the commission of an offence”.
Some CPS managers said police officers needed to be “more proactive” in producing the necessary evidence, while some prosecutors said some police officers were still not aware of hate crime sentencing laws affecting sexual orientation, transgender identity and disability.
The study also says that officers can “overlook or fail to gather evidence” of disability hate crime.
The report is less critical of prosecutors, and says that recent training of all CPS lawyers “has helped to improve the prosecution of disability hate crime”.
And 12 years after the introduction of laws that allowed for sentences to be increased for hate crime offences – under sections 145 and 146 of the Criminal Justice Act – the study says there is still “widespread lack of awareness” of the measures, particularly among defence barristers and crown court judges.
It says that many crown court judges remain “reluctant” to apply sections 145 and 146.
The research, and the recommendations, were welcomed by Stephen Brookes, a coordinator of the Disability Hate Crime Network and an adviser to CPS and the Lancashire and West Yorkshire police forces on disability.
He said: “We have always said that current UK hate crime legislation significantly fails to fully protect disabled people, whereas it gives better legal support and sentencing outcomes to other targeted people.
“We have always insisted that simplification of the legislation of disability hate crime which will give greater clarity and reassurance to those who are targeted is essential and that they will benefit from the protection of better law, for without that robust framework disabled people don’t have a guarantee that being a victim of disability hate crime will lead to enforcement action.
“We need the whole criminal justice system, and indeed politicians, to change their poor attitude towards disabled people who experience hatred routinely and make them commit to more consistently recognise the impact of disability hate crime by supporting clearer, stronger legislation and actively contribute to change our society for the benefit of all.”
Walters told DNS: “If these options for reform are taken up by the government, I strongly believe that the criminal justice system will be better equipped to tackle the growing problems associated with hate crime in England and Wales.”
He added: “There are four main recommendations for law reform summarised in the executive summary.
“We recommend that these be considered by the government as soon as possible, in order to improve the operationalisation of the current framework of law.
“It is clear that the government’s attentions are currently focused predominately on Brexit negotiation, but given the huge spikes in hate crime that have been recorded since the EU referendum in June 2016, it is incumbent upon the government to ensure that the law can effectively address what is clearly a growing social problem.”
A Home Office spokeswoman failed to respond to questions about the content of the report and its recommendations, or the length of time the government had taken to respond to the Law Commission, which she said was the responsibility of the Ministry of Justice, which she said was “considering all of the options outlined by the Law Commission”.
But she said in a statement: “All forms of hate crime, including disability hate crime, are completely unacceptable, and we are working hard to protect victims of these abhorrent crimes.
“We already have a robust legislative framework to protect people from hate against all five of the monitored strands, including increased sentences where an offence was motivated by hostility or prejudice based on a person’s real or perceived disability.”
She also pointed to the government’s “comprehensive Hate Crime Action Plan”.
The action plan was criticised last year for its “totally disrespectful” and “unforgivable” failure to address disability hate crime.
She also said the Home Office was “aware” of the new research.
*The other authors were Dr Susann Wiedlitzka, Dr Abenaa Owusu-Bemaph, from the London School of Economics, and researcher Dr Kay Goodall
**According to the Crime Survey for England and Wales