Law Commission Hate Crime Review

We recommend that decisions to include, or not to include further groups in hate crime laws should be based on the following criteria: (1) Demonstrable need: evidence of the prevalence of the criminal targeting of the characteristic group based on prejudice or hostility. A balance of the following considerations should inform this determination of need: (a) Absolute prevalence: the total amount of criminal behaviour that is targeted based on hostility or prejudice towards the characteristic. (b) Relative prevalence: the amount of criminal behaviour that is targeted based on hostility or prejudice towards the characteristic, as compared with the size of the group who share the characteristic. (c) Severity: the nature and degree of the criminal behaviour that is targeted towards the characteristic based on hostility or prejudice. (2) Additional harm: there is evidence that criminal targeting based on hostility or prejudice towards the characteristic causes additional harm to the victim, members of the targeted group, and society more widely. (3) Suitability: protection of the characteristic would fit logically within the broader offences and sentencing framework, prove workable in practice, represent an efficient use of criminal justice resources, and is consistent with the rights of others.

We recommend that age should not be added as a protected characteristic in hate crime laws.

We recommend that the current dual approach of aggravated offences and enhanced sentencing be retained in England and Wales.

We recommend that aggravated offences be extended to cover all existing characteristics in hate crime laws: race, religion, sexual orientation, disability and transgender identity.

We recommend that aggravated versions of reformed communications offences should not be created if the replacement "harm-based" and sending a threatening communication offence are created as either-way offences. If the replacement offences are summary offences, or if the offences contrary to section 127 of the Communications Act 2003 are retained in their current form, we recommend that aggravated versions of these offences should be created.

We recommend that no further aggravated versions of existing criminal offences should be created.

We recommend that a conviction for an aggravated offence should be possible where the prosecution proves that the offence was motivated by or the defendant demonstrated hostility towards "one or more" protected characteristics. However, the court should make a clear determination as to the characteristics that have formed the basis for sentencing, and these should be specified on the Police National Computer.

We recommended that for all aggravated offences, both the Magistrates' Court and the Crown Courts should always be empowered to find the defendant guilty of the base offence in the alternative.

We recommend that a court should ordinarily not be permitted to apply an enhanced sentence to a base offence where an aggravated version of that same offence could have been charged. We recommend that an exception should exist where the prosecution has chosen to pursue an alternative aggravated form of the offence, which closed off the possibility of pursuing the hate crime aggravation; notably, the offence of assault on an emergency worker contrary to section 1 of the Assaults on Emergency Workers (Offences) Act 2018. In this scenario, a finding that a sentence enhancement should be applied should be open to the court, either in relation to the offence in section 1 of the Assaults on Emergency Workers (Offences) Act 2018, or in relation to the base offence of assault, if the additional elements of the emergency worker offence are not proven.

We recommend that the legal test for the application of hate crime laws should be the same for aggravated offences and enhanced sentencing.

We recommend that the demonstration limb of the legal test for aggravated offences and enhanced sentencing be retained.

We recommend that the definition of "race" in hate crime laws be retained in its current form.

We recommend that the motivation limb of the legal test for aggravated offences and enhanced sentencing should be met when the offence was motivated (wholly or partly) by hostility or prejudice towards members of a group sharing a protected characteristic, based on their membership of that group.

We recommend that there be a single test applying to all forms of hatred. Under this test a person would be guilty of stirring up hatred if they used words or behaviour intended to stir up relevant hatred; or used threatening or abusive words or behaviour likely to stir up relevant hatred. For the "likely to" limb of this test, the prosecution would have to prove that the person knew, or ought to have known, that the words or conduct were threatening or abusive, and knew, or ought to have known, they were likely to stir up relevant hatred.

We recommend that the stirring up hatred offences should cover the five characteristics currently protected by hate crime laws equally, subject to recommendation 29 on protections for freedom of expression.

We recommend that the stirring up offences should be extended to cover hatred on grounds of sex or gender.

We recommend that the dwelling exception be replaced with an exception for "private conversation".

We recommend that the wording of the stirring up offences make clear that the offences can apply to any writing, sign or visual representation.

We recommend that the separate stirring up offences relating to plays and broadcasts should be repealed. We recommend that provision should be made in the reformed stirring up offences to ensure that performers are not treated as either accessories or principals to the reformed stirring up offences only by reason of taking part as a performer. We recommend that the provisions relating to the liability of producers and directors of plays and programmes are repealed. Ordinary principles of primary and accessory liability should apply to those who stage plays containing material intended or likely to stir up hatred. We recommend that the current provision that requires a play to be considered "as a whole" should be incorporated into the reformed stirring up offences and apply to words, material or behaviour included in any dramatic, literary, artistic or journalistic work, whether a play, article, or broadcast programme. This would apply both to consideration of whether a work was likely to stir up hatred and whether it was threatening or abusive.

We recommend that the offences relating to dissemination of material intended or likely to stir up hatred should be consolidated in a single offence of disseminating inflammatory hate material. Where intent to stir up hatred could not be proved, the prosecution would be required to show that the distributor had knowledge – actual or (in the case of a non-natural person) imputed – of the contents of the material and knew, or ought to have known, that the material was threatening or abusive and likely to stir up hatred. We recommend that no offence would be committed by the exhibition or distribution of a film or video recording which had been granted a certificate by the British Board of Film Classification (or the local authority in whose area the film was shown). We recommend that the protection for performers in plays should be retained and apply to all performers. We recommend that the requirement to consider a play "as a whole" should be retained and apply to all material. We recommend that, if the draft Online Safety Bill becomes law, inflammatory hate material should be included as "priority illegal content", and the stirring up offences should not apply to social media companies and other platforms in respect of "user-to-user" content unless intent to stir up hatred on the part of the provider can be proved.

We recommend that the offences relating to possession of racially inflammatory and inflammatory material should be replaced with an offence of possession of inflammatory material with intent to stir up hatred. This would be restricted to material which was: (1) threatening or abusive; (2) likely to stir up hatred; and (3) possessed with an intention to stir up hatred by its dissemination.

We recommend that 'freedom of expression' provisions should be retained in respect of religion and sexual orientation. We recommend that these and any new provisions should be in the form of 'avoidance of doubt' clauses, along the lines of section 29JA of the Public Order Act 1986, rather than the 'carve out' approach found in section 29J of the Act. These 'avoidance of doubt' clauses should reflect our proposed test for the stirring up offences. That is, material that falls within the particular categories should not, of itself, be taken to be threatening or abusive, or intended or likely to stir up hatred. We recommend that the protection in respect of religion should continue to cover discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system. We recommend that the protection in respect of sexual orientation should continue to cover the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct, and any discussion or criticism of marriage which concerns the sex of the parties to marriage. We recommend that the existing protection for discussion and criticism of religious practices should be extended to cover cultural practices. We recommend that a new protection should be introduced for discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of countries and their governments; and for discussion and criticism of policy relating to immigration, citizenship and asylum. We recommend that in extending the stirring up offences to cover hatred towards trans or gender diverse people, a new protection should be introduced for view that sex is binary and immutable, and the use of language which expresses this.

We recommend that the definition of "religion" in hate crime laws be retained in its current form.

We recommend that there should be a "neutral reportage" defence to the "likely to" limb of the stirring up offences.

We recommend that any prosecution for stirring up hatred should require the personal consent of the Director of Public Prosecutions.

We recommend that the offence in section 3 of the Football (Offences) Act 1991 should be retained in its present form.

We invite the Government to consider establishing a Commissioner for countering hate crime.

We recommended that a single act bring together existing hate crime laws and incorporate the various reforms that we recommend in this report. Specifically, we recommend: moving the substantive aggravated offences currently in the CDA 1998 and the stirring up hatred offences in parts 3 and 3A of the POA 1986 to the new act; and using the act as a vehicle for amendments to the Sentencing Code, but retaining the substantive sentencing provisions within the Code.

We recommend that the definition of "sexual orientation" for the purposes of hate crime and hate speech laws be amended to include protection of persons who are "asexual".

We recommend that the term "transgender" in hate crime laws be replaced with the term "transgender or gender diverse". The definition of "transgender or gender diverse identity" should include people who are transgender or transsexual men or women, and people who are gender diverse; for example, people who are non-binary, and people who otherwise do not conform with male or female gender expectations; for example people who cross-dress.

We recommend that the definition of "disability" in hate crime laws be retained in its current form.

We recommend that, consistent with the current approach to race and religion, the scope of protection for disability, sexual orientation and transgender or gender diverse identity be extended to "association" with these characteristics.

We recommend that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences and enhanced sentencing.

We recommend that Government undertake a review of the need for a specific offence of public sexual harassment, and what form any such offence should take.