Addressing and combating hate crime experienced by disabled people-sharing experiences from England and Wales

1. Addressing and combating hate crime experienced by disabled people-sharing experiences from England and Wales IIMHL/IIDL Seamus Taylor Exchange NUI Maynooth NUIGalway May 2010

2. Context A developing focus on Hate Crimes • Stephen Lawrence murder and subsequent Lawrence Inquiry 1999 • The Soho bomb • Community campaigning • Fit with incoming governments fairness and equality agenda • Whilst early focus on racist crimes, spanned out to embrace other areas of hate crime • Responses from government –legal and policy mix

3. What is Hate Crime? • Hate Crime – increased level of usage; lower level of shared meaning • Terminology differences -some parts of the States and Canada refer to bias crimes and crimes of discrimination • Particularly modern policy concern, whilst not particularly modern underlying phenomena • Differences in range of crimes included within Hate Crime –some include racist crime; religious crimes; homophobic crime; elder abuse; disability hate crime; violence against women. Some include narrower range • Differences in legal, sociological, policy and popular definitions

4. What is Hate Crime? • England and Wales, Police and Prosecutors have agreed definition for recording purposes: • ‘Hate Crimes and incidents are taken to mean any crime or incident where the perpetrators hostility or prejudice against an identifiable group of people is a factor in determining who is victimised’ • Distinction between Hate Crime Incidents and Hate Crimes • Incidents based on victim perception –exists to encourage reporting • Hate Crimes –based on what is charged and prosecutable

5. What is Disability Hate Crime? • Criminal Justice Act E and W 2003 , Section 146 provides for an increase in sentences for aggravation related to disability • Section 146 provides that: • -where it has been proven that hostility based on a person’s disability was demonstrated at the time the offence was committed, or immediately before or afterwards, or • -proven that the offence was motivated by hostility towards the persons disability the court must declare this an aggravating factor at the sentencing stage • Immaterial whether or not the offenders hostility is also based to any extent on any other factor • In Section 146 disability means any physical or mental impairment • Key statutory provision –providing for sentencing uplift

6. The CPS Public Policy and early practice on Disability Hate Crime Crown Prosecution Service (CPS) – independent public prosecution authority for England and Wales Prosecutes 1.5 mln cases(approx) annually in criminal courts Work guided by Code for Crown Prosecutors-decisions based on 2 key tests-an evidential test and a public interest test Substantial equality agenda since late 1990’s –focussing on equality in prosecution policy and practice; engagement with diverse communities; equality in employment Developed practice of putting in place Public Policy Statements on Hate Crimes eg Racist and Religious Crimes Developed via community informed policy making process The CPS states –it expects to be judged by commitments given in Public Policy Statements

7. The CPS Public Policy on Disability Hate Crime and early practice • Public Policy Statement framed via a working group involving disabled people, CPS lawyers and policy advisors • Public Consultation held. Policy finalised • Public Policy launched ,accompanied by legal guidance and easy read version,2007 • Issued to all CPS Area Offices • Flagging and recording of cases built into Case Management System • Limited further proactive briefing and training to embed policy into prosecution practice • Planned a progress check for 2009

8. Community ChallengeCriminal Justice System shortcomings • Late 2007-08 Disability groups raise concerns about numbers and handling of cases. • Number of serious cases profiled that appeared to indicate CJS wide failure • Scope, disability charity produce report, ‘Getting away with murder’ –highlights a number of cases • The CPS - first agency to respond. Accepts challenges and shortcomings • DPP goes on record stating shortcomings and setting out expectations for case improvements • CPS began to respond more positively and proactively

9. Community Challenge Issues which it raised • Failure to recognise disability hate crime • Vulnerability vs. hostility- zoning in on vulnerability clouding need for focus on hostility • Looking for ‘hatred’ when law simply requires ‘hostility’ –setting too high a threshold for cases • Embedded belief that it is not an issue and not possible – certainly not like racist crime • Embedded view of Hate Crime as synonymous with Racist Crime –expecting close to identical manifestations and not recognising varied manifestations

10. Improvement Steps • Detailed guidance issued to all prosecutors with a focus on distinguishing between vulnerability vs. hostility • Briefing seminars for prosecutors • Themed Review conducted of all Areas performance on Disability Hate Crime and Action Plans put in place • Guidance on flagging and recording of cases issued to all Areas • Annual public reporting on numbers and outcomes of Disability Hate Crime cases • Wider improvement initiatives: • -improved police recording and guidance to all police forces • -Equality and Human Rights Commission (EHRC) Inquiry into Harassment and violence experienced by disabled people

11. Emerging common factors from Disability hate Crime cases • Overview of cases handled by the CPS highlights: 1.Usually have been previous incidents 2.Perpetrators are often acquaintances, neighbours, ‘mates’, carers 3.Incidents escalate in severity and frequency 4.Multiple perpetrators are often involved in incidents 5.Sometimes false accusations of the victim being a ‘grass’ 6.Sustained attacks, excessive violence, cruelty, humiliation, degrading treatment

12. Emerging common erroneous assumptions in Disability Hate Crime cases • It can’t be disability hate crime because: 1.The victim was just in the wrong place at the wrong time 2.The offender was motivated by drink and anger 3.The offender is the victim’s carer 4.The offender has assaulted other people and they were not disabled 5.The victim is not in fact disabled None of these rule out disability hate crime Erroneous assumptions can lead to overlooking /misinterpreting information/evidence

13. Current Position • In 2007-08 ,183 cases were prosecuted with 77% conviction rate • In 2008-09, 576 cases were prosecuted with 76% conviction rate • Increase in cases –links to improved awareness externally; improved recording internally • Awareness; sensitivity to cases and competence raised significantly • Sept 2009 – cross govt Hate Crime Action Plan produced- sets out Govt aims to tackle the ‘lifecycle’ of hate crime and it various stages including prevention; reporting; victim support; prosecution; sentencing and probation

14. Looking to the future • In the foothills of a journey to deliver justice for victims of Disability Hate Crime in England and Wales • Agenda setting phase. Yet to move into delivery phase –delivery of justice and an outcomes phase • Wonder – What is the Irish experience?.Hoping to look at this. • Experience from other jurisdictions would tend to point to its likely existence on a significant scale