Paul Bickley examines the efficacy of current hate crime legislation as a tool for creating a cohesive society.
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Last week was hate crime awareness week – that special time of the year that we reserve to remind each other that crime and hate are bad things, and that together they’re, well… a very bad thing. To the extent that hate crime was in the news last week, you would have got the impression that there’s quite a lot of it about, and that the government believes it must redouble efforts to tackle it (it has asked the Law Commission for another review of hate crime legislation, a mere four years on from the last).
What you won’t have heard is that there is no such thing as a ‘hate crime’ – not legislatively at least. There are several different pieces of relevant legislation (none of which use the phrase).
First, the Crime and Disorder Act 1998 created a series of offences which could be racially ‘aggravated’ – meaning they could attract a higher sentence. The Anti–terrorism, Crime and Security Act 2001 incorporated religiously aggravated offences.
Second, in 2003, the Labour government passed the Criminal Justice Act. This made hostility based on the victim’s (presumed) sexual orientation or disability an aggravating factor in sentencing. In 2012, that Act was amended to include transgender hostility.
Third, there is legislation which deals with inciting hatred. The Race Relations Act 1968 included measures against, “incitement to commit racial hatred,” which were later amended by the Public Order Act 1986. In turn, the Racial and Religious Hatred Act 2006 amended the Public Order Act to introduce offences of stirring up religious hatred. In 2008, the Criminal Justice and Immigration Act added offences of stirring up hatred on the basis of a person’s sexual orientation.
There are other legislative bits and bobs under which ‘hate crime’ has been prosecuted. For instance, earlier this year Mark Meechan was charged with gross offence under the Communications Act 2003. Meechan had trained his partner’s dog to offer Nazi salutes and react to the proposal to “gas the Jews,” and posted videos on YouTube. This offence was treated as ‘aggravated’ by religious prejudice. Meechan was convicted and fined £800.
On the one hand, at each turn of the legislative path, the motivation behind the introduction of ‘hate crime’ legislation has been to protect a vulnerable groups. The 1998 law was a response to the murder of Stephen Lawrence, which reminded the country that racist violence was still a reality. In 2001, the objective was to protect Muslims from revenge attacks in the time after 9/11, and so on.
This seems proportionate – more than that, it seems compassionate. Yet there’s no denying the legislation represents a departure from the principle of legal equality. This poses the question – which characteristics should be protected more than others? Campaigners – even those fully in support of the idea of legislating against ‘hate crime’ – observe that the evolutionary nature of existing laws has created a ‘hierarchy of hate’ where some vulnerabilities are protected more than others. A queue of characteristics have a case for greater protection; the Law Commission review will consider misogyny and ageism – but why stop there? Why not, for instance, protect goths?
The man or woman on the Clapham omnibus would, I suspect, like to know that everyone is protected in the same way and that ‘justice is blind.’ Certain groups may experience systematic disadvantage – but in a hate crime successfully prosecuted, we exact the price of society’s failure to deal with structural inequality on particular individuals. They are morally and legally responsible for their own actions, but are they responsible for our collective failure to create, for instance, a racially inclusive society? The idea of hate crime not only poses questions about which categories we protect, but questions about how we protect them. Could it be that the legislative route ends up not reducing prejudice but stimulating it?
Last week it was widely reported that hate crime was ‘on the rise’, apparent evidence that we live in an ever more divided society. Jeremy Corbyn tweeted this, though he was far from alone in bemoaning where we have come to. The problem is that the statistics came from police data, and recording practices have changed, meaning that more crimes overall have been recorded. When the number of hate crimes are indexed to the number of actual crimes, there is no such dramatic rise. In fact, the Office for National Statistics thinks hate crime has declined over the last decade. The samples are almost too small to infer trends, but according to the Crime Survey of England and Wales, around 0.3 per cent of people in the UK will be a victim of hate crime every 12 months.
Alongside this, public authorities – including the police – encourage the reporting of ‘hate incidents’. These are events which cannot be considered a crime, yet in the perception of the ‘victim’ (can there be a victim where there is no crime?) are driven by hatred of a protected characteristic. Why? What is the purpose of recording these if there is no intention of responding to them? Hate incidents can’t really be understood as a barometer of hate, perhaps at best as a barometer of the feeling of vulnerability. But this in itself encourages further additions to the list of officially recognised hates.
Politicians claim to want to tackle the root causes of prejudice and racism. That is bold idealism, and an objective unlikely to be realised this side of eternity. They are more honest when they acknowledge that hate crime legislation is about ‘sending a message.’ Sajid Javaid said this week, in a press release, “Hate crime goes directly against the long–standing British values of unity, tolerance and mutual respect – and I am committed to stamping this sickening behaviour out.” Stella Creasy MP, who has campaigned for misogyny to be treated as a hate crime, wants to send a message to women and girls that “we are on your side.”
But “we are on your side” is not the only message sent. Another, ironically, is that equality before the law is no longer the goal. In the South Park episode Cartman’s Silly Hate Crime, Cartman is sentenced for the hate crime of throwing a rock at Token (surname: Black).
Judge: I am making an example of you, to send a message out to people everywhere: that if you want to hurt another human being, you’d better make damn sure they’re the same colour as you are!
Perhaps another message is, “be afraid – there are all sorts of nasty individuals who will target you with hate–driven abuse.” Politicians can enhance their credentials by wringing their hands and sounding tough on ‘hate crime’ but rather than helping people be and feel safer there’s a strong possibility that focusing on them too much will only serve to make us more fearful of others, and feed a culture of competitive victimhood (misandry as a hate crime, anyone?) This legislation looks like a sensible tool for creating a more cohesive society. Is it possible that it is now breaking us apart?
One way to make everyone safer would be to better resource the police and Crown Prosecution Service, so that they could bring more crimes to trial (currently, one in 10 crimes result in a charge or a summons). But that’s for another blog…
