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The victims of hate crime and the principles of the criminal law

Published online by Cambridge University Press:  02 January 2018

Chara Bakalis
Chara Bakalis*
Affiliation:
Oxford Brookes University
*
Chara Bakalis, Principal Lecturer, Oxford Brookes University, Headington Hill Hall, Gispy Lane, Oxford OX3 0BP, UK. Email: [email protected]
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Abstract

There is an ongoing debate amongst hate crime scholars about the categories of victims that should be included within hate crime legislation. Some commentators argue that affording protection to groups based on predefined characteristics results in many victims being excluded from the legislation. They would prefer a more inclusive approach that would offer protection to a potentially limitless number of groups. This paper considers the question from a doctrinal perspective, and argues that a principled way of deciding the characteristics of hate crime is required. It will conclude that the core concern of hate crime legislation is with the furthering of the broader equality agenda and, as such, the victims of hate crime should form an exclusive group based on those characteristics protected under equality legislation. This approach can help provide a theoretical framework for hate crime legislation that can be more easily accommodated within criminal law principles.

Type
Research Article
Information
Legal Studies , Volume 37 , Issue 4 , December 2017 , pp. 718 - 738
Copyright
Copyright © Society of Legal Scholars 2017

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Footnotes

*

The author would like to thank Professor Peter Edge, Dr Kay Goodall and Professor Lucy Vickers for their comments on earlier versions of this paper.

References

1. Aggravated offences in relation to racial hostility were enacted under the Crime and Disorder Act 1998, ss 28-32, and racially aggravated offences were added by the Anti-terrorism, Crime and Security Act 2001, s 39.

2. The other basic offences are certain public order offences involving threatening, abusive or insulting conduct, harassment or stalking, and putting people in fear of violence.

3. For example, the maximum for the basic offence of s 20 of the Offences Against the Person Act 1861 is 5 years, but this is increased to 7 years underthe CDA: Crime and Disorder Act 1998, s 29(2)(b).

4. See eg G Schaffer ‘Legislating against hatred: meaning and motive in Section Six of the Race Relations Act of 1965’ (2014) 25 Twentieth Cent Br Hist 251-275; and I Hare ‘Legislating against hate - the legal response to bias crimes’ (1997) 17 Oxford J Legal Stud 415.

5. There are several types of behaviour that fall into this category, including the possession, display, publication or distribution of written material or visual images or sound, or presenting or directing the public performance of a play: Public Order Act 1986, ss 18-22.

6. The offences were extended to ‘religion’ by the Racial and Religious Hatred Act 2006, and to ‘sexual orientation’ by the Criminal Justice and Immigration Act 2008.

7. For details and analysis of the Law Commission's recommendations, see C Bakalis ‘Legislating against hatred: the Law Commission's report on hate crime’ (2015) Crim L Rev 177.

8. Details of the Action Plan are available at http://www.gov.uk/government/publications/hatecrime-action-plan-challenge-it-report-it-stop-it (accessed 15 January 2016).

9. See eg M Blake ‘Geeks and monsters: bias crimes and social identity’ (2001) 20 Law & Phil 121; R Grattet and V Jenness ‘Examining the boundaries of hate crime law: disabilities and the “dilemma of difference”’ in B Perry (ed) Hate and Bias Crime: A Reader (London: Routledge, 2003) p 284; N Chakraborti and J Garland ‘Reconceptualizing hate crime victimization through the lens of vulnerability and “difference”’ (2012) 16 Theoretical Crim 499; J Schweppe ‘Defining characteristics and politicizing victims: a legal perspective’ (2012) 10 J Hate Stud 173; M Al-Hakim ‘Making a home for the homeless in hate crime legislation’ (2014) 30(10) J Interpersonal Violence 1755-1781; GMason ‘Victim attributes in hate crime law: difference and the politics of justice’ (2014) 54 Br J Crim 161. See also Lawrence, FM Punishing Hate: Bias Crimes under American Law (Cambridge, MA: Harvard University Press, 1999) pp 11–20 CrossRefGoogle Scholar.

10. For examples, see OSCE/ODIHR Hate Crime Laws: A Practical Guide (2009) pp 37, 38.

11. For examples, ibid, pp 37, 40.

12. Under s 22-3701 of the District of Columbia Code.

13. Under Art 63 of the Russian Criminal Code.

14. OSCE/ODIHR, above n 10, pp 46.

15. Chakraborti and Garland, above n 9.

16. Ibid.

17. Al-Hakim, above n 9.

18. Schweppe, above n 9.

19. Mason, above n 9.

20. Ibid.

21. Ibid.

22. There is a rich literature on the political dimension of hate crime laws. Jacobs, JB and Potter, K Hate Crimes: Criminal Law and Identity Politics (Oxford: Oxford University Press, 1998)Google Scholar is a good starting point. A non-exhaustive list of other pieces includes: E McLaughlin ‘Rocks and hard places: the politics of hate crime’ (2002) 6 Theoretical Crim 493; L Moran ‘Affairs of the heart: hate crime and the politics of crime control’ (2001) 12 Law & Critique 331-344; Duggan, M and Heap, V Administrating Victimization: The Politics of Anti-Social Behaviour and Hate Crime Policy (London: Palgrave Macmillan, 2014)CrossRefGoogle Scholar; and J Garland and J Treadwell ‘The new politics of hate? an assessment of the appeal of the English Defence League amongst disadvantaged white working class communities in England’ (2012) 10 J Hate Stud 123.

23. Notable exceptions are K Goodall ‘Conceptualising “racism” in the criminal law’ (2013) 33 Legal Stud 215; M Walters ‘Conceptualizing “hostility” for hate crime law: minding “the minutiae” when interpreting section 28(1)(a) of the Crime and Disorder Act 1998’ (2014) 34 Oxford J Legal Stud 47-74; A Owusu-Bempah and M Walters ‘Racially aggravated offences: when does section 145 of the Criminal Justice Act 2003 apply?’ (2016) Crim L Rev 116; R Taylor ‘The role of the aggravated offences in combating hate crime 15 years after the Crime and Disorder Act 1998: time forachange?’ (2014) 13 Contemp Issues in Law 76;and F Brennan ‘Crime and Disorder Act1998: racially motivated crime: the response of the criminal justice system’ (1999) Crim L Rev 17-28.

24. Blake, above n 9.

25. Chakraborti and Garland, above n 9; Schweppe, above n 9.

26. The term ‘hatred’ is used in this paper although it is acknowledged that the CDA offences use the word ‘hostility’.

27. Mill, JS On Liberty and Other Essays (Oxford: Oxford University Press, 1991)Google Scholar.

28. Ibid, p 14.

29. A number of modern commentators have put forward slightly different versions of the harm principle, such as Feinberg, J The Moral Limits of the Criminal Law - Volume 1: Harm to Others (Oxford: Oxford University Press, 1984)Google Scholar, Volume 2: Offense to Others (Oxford: Oxford University Press, 1985), Volume 3: Harm to Self (Oxford: Oxford University Press, 1986) and Volume 4: Harmless Wrongdoing (Oxford: Oxford University Press, 1990); HLA Hart Law, Liberty and Morality (Stanford, CA: Stanford University Press 1963); Simester, AP and von Hirsch, A Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart Publishing, 2011)Google Scholar; and Gardner, J and Shute, S ‘The wrongness of rape’ in Gardner, J Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar. For a summary, see J Edwards ‘Harm principle’ (2014) 20 Legal Theory 253.

30. As with adherents of the ‘harm’ principle, proponents of legal moralism cover a broad range of viewpoints. Examples of legal moralists include P Devlin The Enforcement of Morals (Oxford: Oxford University Press, 1965); Moore, MS Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997)Google Scholar; SE Marshall and RA Duff ‘Criminalization and sharing wrongs’ (1998) 11 Can J L & Jur 7; Duff, RA Punishment, Communication and Community (Oxford: Oxford University Press, 2000)Google Scholar.

31. See eg Gardner and Shute, above n 29; Moore, above n 30; and Duff, above n 30.

32. For a more in-depth discussion of this question, see J Stanton Ife ‘Criminalising conduct with special reference to potential offences of stirring up hatred against disabled or transgender persons’ in Law Commission Hate Crime: The Case for Extending the Existing Offences Consultation Paper 213 (London: Law Commission, 2013).

33. Ashworth, A and Horder, J Principles of the Criminal Law (Oxford: Oxford University Press, 7th edn, 2013) pp 31–35, 52CrossRefGoogle Scholar.

34. For a general discussion, see ibid; and see Duff, RA et al The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar. For more specific theories, see Husak, D Overcriminalization, (Oxford: Oxford University Press, 2008)Google Scholar; Schonscheck, J On Criminalization (Dordrecht: Kluwer Academic, 1994)CrossRefGoogle Scholar; Packer, H The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968)CrossRefGoogle Scholar; and S Kadish ‘The crisis of overcriminalization’ (1967) 74 Ann Am Acad Pol & Soc Sci 157.

35. Husak, ibid.

36. For critiques of Husak's theory, see eg P Ramsay ‘Overcriminalization as vulnerable citizenship’ (2010) 13 New Crim L Rev 262; and M Gur-Ayre ‘Comments on D Husak's overcriminalization’ (2010) 1 Jerusalem Rev Legal Stud 21. See also (2009) 28 Crim Just Ethics for a selection of papers discussing Husak's theory.

37. Husak, above n 34, p 132.

38. First put forward by Feinberg, J Doing and Deserving (Princeton, NJ: Princeton University Press, 1970)Google Scholar.

39. Husak, above n 34, p 141.

40. Ibid, pp 132, 136-137.

41. The Court of Appeal decision in O'Leary (Michael Patrick) [2015] EWCA Crim 1306 has clarified that there is an overlap between the CDA offences and the sentencing provisions under the CJA. For a discussion, see Owusu-Bempah and Walters, above n 23; and Taylor, above n 23.

42. See eg M Malik “Racist crime”: racially aggravated offences in the Crime and Disorder Act 1998 Part IF (1999) 62 Mod L Rev 409; Brennan, above n 23; D Gadd ‘Aggravating racism and elusive motivation’ (2009) 49 Br J Crim 755; and Ormerod, Commentary at [2009] Crim L Rev 449.

43. Law Commission Hate Crime: Should the Current Offences be Extended? Law Com No 348 (HMSO, 2014).

44. CPS ‘Hate crime report 2014/15 and 2015/16’, July 2016.

45. There is very little data on enhanced sentencing. In fact, the UK was criticised for this in the most recent report by ECRI (European Commission against Racism and Intolerance) ‘ECRI report on the United Kingdom (fifth monitoring cycle)’ (2016) at 9. As the report points out, the assumption is that the enhanced sentencing provisions are under-used (at 26).

46. See eg Lawrence, above n 9, pp 73-79; L Wang ‘Recognizing opportunistic bias crimes’ (2000) 80 Boston U L Rev 1399.

47. Lawrence, above n 9.

48. Ibid, pp 29-39.

49. Ibid, pp 73-79, who preferred the animus model, and Wang, who prefers a discriminatory selection model: Wang, above n 46.

50. Goodall, above n 23.

51. The greater harm caused by hate crimes is at the heart of Lawrence's justification for bias crimes, see Lawrence, above n 9, pp 39, 58, 61-63. See also P Iganski Hate Crime and the City (Bristol: Policy Press, 2008) ch 1; and P Iganski ‘Hate crimes hurt more’ (2001) 45 Am Behav Scientist 626.

52. For a comprehensive discussion of the different ways in which the harm caused by hate crimes has been categorised, see HM Hurd and MS Moore “Punishing hatred and prejudice” (2004) 56 Stan L Rev 1081 at 1085-1093.

53. Theft is punishable with up to 7 years' imprisonment (Theft Act 1968, s 7), while the highest maximum penalty for burglary is 14 years' imprisonment (Theft Act 1968, s 9(3)(a)).

54. Sentencing Council Theft Offences Definitive Guidelines (2015) at 5.

55. Chakraborti and Garland, above n 9.

56. Ibid, at 504.

57. Ibid, at 503.

58. Ibid, at 507.

59. Schweppe, above n 9, at 187.

60. Section 718.2(a)(i) of the Canadian Criminal Code.

61. Perry, B In the Name of Hate: Understanding Hate Crimes (London: Routledge, 2001)Google Scholar.

62. Al-Hakim, above n 9.

63. Ibid, at 20.

64. Perry, above n 61, p 10.

65. A Harel and G Parchomovsky ‘On hate and equality’ (1999) 109 Yale L J 507.

66. For a criticism of this approach, see Hurd and Moore, above n 52.

67. Lawrence, above n 9, pp 2, 3, 8.

68. Ibid, p 8.

69. For a history of the legislation, see Schaffer, above n 4.

70. Brennan, above n 23.

71. Home Office Racial Violence and Harassment: A Consultation Document (1997) para 2.3.

72. Racial Attacks and Harassment (Session 1985-1986) HC 409, cited in Home Office, ibid.

73. Such as the Race Relations Act 1968 and the Race Relations Act 1976; see also S Fredman Discrimination Law (Oxford: Oxford University Press, 2011) pp 50-68.

74. Fredman, ibid, ch 2.

75. Ibid, pp 86-93.

76. Ibid, pp 95-101.

77. Equality Act 2010, s 4: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation.

78. The CDA offences were extended to ‘religion’ by the Anti-terrorism, Crime and Security Act 2001, s 39. The public order offences were extended to ‘religion’ by the Racial and Religious Hatred Act 2006, and to ‘sexual orientation’ by the Criminal Justice and Immigration Act 2008.

79. Law Commission, above n 32.

80. Jacobs and Potter, above n 22.

81. Ibid, p 131.

82. McLaughlin, above n 22.

83. Ibid, at 496-497.

84. Jacobs and Potter, above n 22.

85. I Solanke ‘Infusing the silos in the Equality Act 2010 with synergy’ (2011) 40 Indust L J 336 at 353.

86. McLaughlin, above n 22, at 496.

87. Perry, above n 61, p 10.

88. Ashworth and Horder, above n 33, p 33; see also Schonscheck, above n 34, for a discussion of a ‘filtering process’ that determines when it is appropriate to use the criminal law to prohibit conduct.

89. Law Commission, above n 43.

90. See eg discussion in M Walters and J Tumath ‘Gender “hostility”, rape and the hate crime paradigm’ (2014) 77 Mod L Rev 563.

91. Chakraborti and Garland, above n 9.

92. Fredman, above n 73, pp 8-14.

93. Ibid, ch 1.

94. Ibid, pp 18-19.

95. Ashworth and Horder, above n 33, p 33; Husak, above n 34, pp 77-91.

96. N Hall Hate Crime (London: Routledge, 2013).

97. Chakraborti and Garland, above n 9, at 508.

98. Perry, above n 61.

99. S Lamble ‘Queer necropolitics and the expanding carceral state: interrogating sexual investments in punishment’ (2013) 24(3) Law & Critique 229-253.

100. M Walters Hate Crime and Restorative Justice: Exploring Causes, Repairing Harms (Oxford: Oxford University Press, 2014).