Hate Crime

1. Racial or religious aggravation – statutory provisions

Sections 29 to 32 of the Crime and Disorder Act 1998 create specific racially or religiously aggravated offences, which have higher maximum penalties than the non-aggravated versions of those offences. The individual offence guidelines indicate whether there is a specifically aggravated form of the offence.

An offence is racially or religiously aggravated for the purposes of sections 29-32 of the Act if the offender demonstrates hostility towards the victim based on his or her membership (or presumed membership) of a racial or religious group, or if the offence is (wholly or partly) motivated by racial or religious hostility.

For all other offences, section 66 of the Sentencing Code provides that the court must regard racial or religious aggravation as an aggravating factor.

The court should not treat an offence as racially or religiously aggravated for the purposes of section 66 where a racially or religiously aggravated form of the offence was charged but resulted in an acquittal. The court should not normally treat an offence as racially or religiously aggravated if a racially or religiously aggravated form of the offence was available but was not charged. Consult your legal adviser for further guidance in these situations.

2. Aggravation related to disability, sexual orientation or transgender identity – statutory provisions

Under section 66 of the Sentencing Code, the court must treat as an aggravating factor the fact that:

  • an offender demonstrated hostility towards the victim based on his or her disability, sexual orientation or transgender identity (or presumed disability, sexual orientation or transgender identity); or
  • the offence was (wholly or partly) motivated by hostility towards persons who have a particular disability, who are of a particular sexual orientation or who are transgender.

3. Approach to sentencing

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

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.

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:

  • sentencers 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.

In these guidelines, where the specific racially or religiously aggravated offences under the Crime and Disorder Act 1998 are addressed on the same page as the ‘basic offence’; the starting points and ranges indicated on the guideline relate to the ‘basic’ (in other words, non-aggravated) offence. The increase for the element of racial or religious aggravation may result in a sentence above the range; this will not constitute a departure from the guideline for which reasons must be given.