The Law Commission has launched a consultation asking whether there is a case for standardising the law in relation to sexual orientation, transgender identity, disability, race and religious hate crime offences.
At present the law is applied differently against the different characteristics.
Under the Crime and Disorder Act 1998 it is possible to prosecute some offences, such as for assault or criminal damage, as “aggravated offences” if the offender demonstrates racial or religious hostility at the time of the offence, or has been motivated to commit the crime by racial or religious hostility. These aggravated offences attract higher sentences than the maximum for the basic form of the offence. But at present if the hostility relates to disability, sexual orientation or transgender identity, there is no possibility of prosecuting as an “aggravated offence”, although the court does still have the power to reflect the hostility by uplifting the sentence under separate legislation that applies to all five hate crime characteristics.
The criminal law also provides protection under the Public Order Act 1986 against those who publish material that is intended or likely to stir up hatred against people on the grounds of race, religion or sexual orientation. The law does not provide the same protection where it is intended or likely to stir up hatred on grounds of disability or transgender identity.
In this consultation, the Law Commission considers whether there is a case for reforming the existing offences to bring greater coherence and protection for all five groups. It asks:
• Do existing criminal offences provide adequate protection against the types of conduct that is occurring against members of the protected groups
• Do the Courts’ existing sentencing powers provide a sufficient response in all cases?
• Would extending the offences create uncertainty or have unintended adverse consequences?
Professor David Ormerod QC, the Law Commissioner leading on the project, said: “We look at options for reform that would bring consistency and recognise that the criminal law should protect people who are targeted because of their disability, transgender identity, race, religion or sexual orientation. We are interested in whether new aggravated offences are preferable to an enhanced sentencing regime in tackling this hostility based criminality.”
A consultation paper is available on the Commission’s website: www.lawcom.gov.uk. The consultation closes on September 27.