DHC INFORMATION (from Disability Hate Crime - Guidance on the distinction between vulnerability and hostility in the context of crimes committed against disabled people: 17 March 2010 – CPS)

Section 146 Criminal Justice Act 2003

146 Increase in sentences for aggravation related to disability or sexual orientation

(1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).

(2) Those circumstances are:

(a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on:

(i) the sexual orientation (or presumed sexual orientation) of the victim, or
(ii) a disability (or presumed disability) of the victim, or

(b) that the offence is motivated (wholly or partly) -

(i) by hostility towards persons who are of a particular sexual orientation, or
(ii) by hostility towards persons who have a disability or a particular disability.

(3) The court:

(a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and
(b) must state in open court that the offence was committed in such circumstances.

(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

(5) In this section "disability" means any physical or mental impairment.

ACPO/CPS Nationally Agreed Definition Of Hate Crime

Hate Motivation

Definition: "Hate crimes and incidents are taken to mean any crime or incident where the perpetrator's hostility or prejudice against an identifiable group of people is a factor in determining who is victimised."

Included subjects:This is a broad and inclusive definition. A victim does not have to be a member of the group. In fact, anyone could be a victim of a hate crime.

Hate Incident

Definiton:

·  "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's race or perceived race", or

·  "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's religion or perceived religion", or

·  "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's sexual orientation or perceived sexual orientation", or

·  "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person's disability or perceived disability", or

·  "Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender."

Included subjects:

·  Any racial group or ethnic background including countries within the United Kingdom and 'Gypsy & Traveller groups'.

·  Any religious group including those who have no faith.Any person's sexual orientation.

·  Any disability including physical disability, learning disability and mental health. Including people who are Transsexual, transgender, transvestite and those who hold a Gender Recognition Certificate under the Gender Recognition Act 2004.

Hate Crimes

Definition:

·  A Hate Crime is any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person's race or perceived race" or

·  "Any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person's religion or perceived religion" or

·  "Any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person's sexual orientation or perceived sexual orientation" or

·  "Any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person's disability or perceived disability" or

·  "Any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender"

Intended subjects: As Hate Incident above.

Hate Crime Prosecution

Definition: "A hate crime prosecution is any hate crime which has been charged in the aggravated form or where the prosecutor has assessed that there is sufficient evidence of the hostility element to be put before the court when the offender is sentenced."

Intended subjects: As Hate Incident above.

Vocabulary

We should avoid saying:

·  "motiveless crime" - if we mean the motive is not known or is not clear to us.

·  "there is no evidence" - if we mean there is insufficient evidence.

·  "vulnerable victim" - when we mean someone was in a vulnerable situation that was exploited by the offender (as opposed to, for example, the use of the word in the statutory context of s.16 YJCEA 99).

·  "bullying" - use of this word understates the seriousness of incidents that often involve intimidation, persecution, terror, fear, harassment i.e. behaviours amounting to criminal offences. Even "mere" queue barging, ridicule, mimicking, exclusion can amount to causing serious harassment, alarm or distress, particularly if repeated.

·  "has a mental age of" - comparison of an adult person with a child is often considered to be demeaning and unhelpful. Better practice is a reference to the person's level of social functioning and understanding.

Considerations

Reviews of cases involving disability should include the following:

·  What is the actual or perceived disability involved?

·  Previous incidents involving the victim and / or offender?

·  Nature and location of previous incidents?

·  Escalating in severity and frequency?

·  Opportunistic offending becoming systematic and regular targeting?

·  Status of offender - "friend", carer, acquaintance, relative, stranger?

·  Role of any bystanders?

·  Multiple perpetrators condoning and encouraging, taking photos/video-ing?

·  Appropriate to charge any of them?

·  False accusations of victim being paedophile or "grass"?

·  Sustained attack?

·  Excessive violence?

·  Cruelty, humiliation or degradation involved?

·  Any focus on the disability itself or disability aids? For example, language, gestures, gratuitous damage to hearing aid, crutches, wheelchair, scooter etc, blindfolding a profoundly deaf victim?

·  Did the disability facilitate the commission of the offence(s)?

·  Was the disability completely co-incidental?

·  Community Impact Statements appropriate?

·  Views of carer / relatives / others? (as appropriate)

·  What evidence is there to suggest this is NOT a s.146 disability hate crime?

·  Ensure careful use of vocabulary

·  Careful consideration of support and/or special measures

·  Further action needed by external partners? Housing / Social Care etc

·  Ongoing protection needed e.g. s.12 DVCVA Restraining Order? CRASBO, barring orders, ASBO, housing injunction, eviction, etc?