Hate Crime

What is hate crime?

Any crime can be prosecuted as a hate crime if the offender has either:

• demonstrated hostility based on race, religion, disability, sexual orientation or transgender identity, or
• been motivated by hostility based on race, religion, disability, sexual orientation or transgender identity

This means that there is not a specific offence of hate crime. Instead, this is considered an aggravating factor for sentence.

Homophobic, Biphobic and Transphobic Hate Crime

Section 66 Sentencing Act 2020 imposes a duty upon courts, when considering the seriousness of an offence, to treat as an aggravating factor that either:

• at the time of committing the offence, or immediately before or after doing so, the offender demonstrated hostility towards the victim based upon the sexual orientation (or presumed sexual orientation) of the victim or based upon the victim being (or being presumed to be) transgender; or
• the offence was motivated (wholly or partly) by hostility towards persons who are of a particular sexual orientation or who are transgender.

There is no legal definition of hostility, so the everyday understanding of the word is used. This includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.

For a conviction to receive enhanced sentencing in court the police need to provide sufficient evidence to prove the hostility element.

Factors to consider

The following factors may be considered when the prosecution review a case that may involve homophobic, biphobic and transphobic hate crime.

• Was hostility based on the victim’s sexual orientation or being transgender (or presumed sexual orientation or being transgender) demonstrated by the perpetrator?
• Have there been any previous incidents involving the offender and hostility or targeted anti-social behaviour?
• If so, what was the nature and location of previous incidents?
• Have the incidents escalated in severity and frequency?
• Has opportunistic offending become systematic and regular targeting?
• What was the role of any bystanders?
• Were there multiple perpetrators condoning and encouraging, taking photos/videos?
• What evidence is there to suggest this is not a homophobic, biphobic transphobic hate crime?

In terms of the incident, they may consider:

• Was there any use of derogatory language that referred to sexual orientation or being transgender?
• Was it a sustained attack?
• Did it involve excessive violence?
• Was cruelty, humiliation or degradation involved?
• Was the area in which the incident occurred particularly associated with gay or transgender activity or was it in response to or undertaken at a time coinciding with a social or political meeting such as Pride?

Sentencing Hate Crime

A court should not conclude that offending involved aggravation related to race, religion, disability, sexual orientation or transgender identity without first putting the offender on notice and allowing him or her to challenge the allegation.

Olliers may be able to assist in providing representation that may involve submissions that there was no element of a hate crime. This may involve advancing arguments on your behalf that, although the basic offence may have been committed, there was no discrimination involved. This may lead to us being able to keep your sentence or penalty to a minimum at court, if we successfully argue that there was no such aggravating factor present, therefore avoiding an uplift in sentence.

When sentencing any offence where such aggravation is found to be present, the following approach should be followed. This applies both to the specific racially or religiously aggravated offences under the Crime and Disorder Act 1998 and to offences which are regarded as aggravated under section 66 of the Sentencing Code:

• the court should first determine the appropriate sentence, leaving aside the element of aggravation related to race, religion, disability, sexual orientation or transgender identity but taking into account all other aggravating or mitigating factors;
• the sentence should then be increased to take account of the aggravation related to race, religion, disability, sexual orientation or transgender identity;
• the increase may mean that a more onerous penalty of the same type is appropriate, or that the threshold for a more severe type of sentence is passed;
• The sentencer must state in open court that the offence was aggravated by reason of race, religion, disability, sexual orientation or transgender identity;
• The sentencer should state what the sentence would have been without that element of aggravation.

The extent to which the sentence is increased will depend on the seriousness of the aggravation.

The following factors could be taken as indicating a high level of aggravation.

Offender’s intention

• The element of aggravation based on race, religion, disability, sexual orientation or transgender identity was planned.
• The offence was part of a pattern of offending by the offender.
• The offender was a member of, or was associated with, a group promoting hostility based on race, religion, disability, sexual orientation or transgender identity.
• The incident was deliberately set up to be offensive or humiliating to the victim or to the group of which the victim is a member.

Impact on the victim or others

• The offence was committed in the victim’s home.
• The victim was providing a service to the public.
• The timing or location of the offence was calculated to maximise the harm or distress it caused.
• The expressions of hostility were repeated or prolonged.
• The offence caused fear and distress throughout a local community or more widely.
• The offence caused particular distress to the victim and/or the victim’s family.

At the lower end of the scale, the aggravation may be regarded as less serious if:

• it was limited in scope or duration;
• the offence was not motivated by hostility on the basis of race, religion, disability, sexual orientation or transgender identity, and the element of hostility or abuse was minor or incidental.

How Olliers can help

If you require advice in relation to representation against an allegation of hate crime, please contact our new enquiry team either by email to info@olliers.com, by telephone on 020 3883 6790 (London) or 0161 834 1515 (Manchester) or by completing the form below and our new enquiry team will contact you.