Written evidence submitted by Mark Walters

Professor of Criminal Law and Criminology, University of Sussex. (ONL0008)

Executive summary

• Approximately 0.2% of an estimated 34,840 disability hate crime cases reported to the police during 2015-16 resulted in a conviction and “declared uplift” during sentencing.
• Disability hate crimes are taken less seriously by the criminal justice system because they do not make up part of the “aggravated” offences prescribed under the Crime and Disorder Act 1998
• The courts frequently reject the application of s. 146 of the Criminal Justice Act 2003 in disability hate crime cases, due to  the complexity (and confusion) that exists on the relationship between a victim's perceived vulnerability and motivations of hostility towards disabled people
• Judges who declare that disabled victims who are targeted because of their disability are “vulnerable” potentially perpetuate a false representation that disabled people are innately weak
• The law must be reformed to include disability hate crimes as “aggravated” offences under the Crime and Disorder Act 1998 (or new consolidated Hate Crime Act)
• The law should be reformed to abolish the “motivation of hostility” test and to be replaced with a “by reason” test.

Introduction and reasons for submitting this evidence

I am a professor of criminal law and criminology in the School of Law, Politics and Sociology, University of Sussex (UoS). I am also the co-director of the International Network for Hate Studies, which aims to bring together researchers, policy makers and practitioners to better understand and prevent hate crime and hate speech. I have lead on a number of research studies on hate crime at the UoS over the past five years. Below I summarise several key findings on disability hate crime from a recent study that examined hate crime laws in England and Wales, at the request of the Petitions Committee.

Legal issues relating to “perceived vulnerability” and its relationship with disability “hostility”

Between 2015-2017, the UoS conducted a study that examined the application and interpretation of hate crime laws in England and Wales. The study involved a review of over 100 case reports and a further 71 in-depth interviews with judges, magistrates, CPS lawyers, independent barristers and police personnel.  In our final report (launched by Bob Neill on October 18th 2017 in the House of Commons) we dedicate a chapter to disability hate crime and the law (see chapter 10).[1]

During the study we obtained and analysed statistics on the number of disability hate crimes that are estimated to be reported to the police each year[2] and the number which result in a conviction and what is called a "declared uplift"[3] - the latter is confirmation that the hate crime provisions were applied in a case.[4] The data we collated showed that there were an estimated 34,840 disability hate crimes reported to the police between 2015-16, yet there were just 84 cases during this same period that resulted in conviction and a declared uplift. These figures suggest that just 0.2% of disability hate crimes estimated to have been reported to the police resulted in a disability “hate crime” conviction. While the gap between reported hate crimes and those which result in conviction and a sentencing uplift is large for all types of hate crime, it is especially big for disability hate crime.

In our report, we conclude that the paucity of successful prosecutions for disability hate crime is partly the result of the way the law is currently framed. Firstly, the fact that disability hostility is found only in sentencing provisions[5] (as against part of the criminal law, i.e. the “aggravated offences”[6]) means it is less likely to form part of a prosecutor’s case, and is therefore less likely to be taken seriously by the criminal justice system. A second key issue restricting the effective enforcement and application of the relevant legislation is the word "hostility", which is central to determining whether a crime is “aggravated”, either in law or at sentencing. A persistent issue affecting prosecutions has been the complexity and confusion that exists on the relationship between a victim's perceived vulnerability and motivations of hostility towards disabled people. More often than not, disability hate crimes involve the targeting of a victim because of their (presumed) disability (frequently because they are seen as an “easy target”). Although the targeted selection of disabled people in such cases often illustrates a bias or prejudice against disabled people (who are viewed as somehow less worthy of respect), the courts do not view this as amounting to identity-based hostility. This is because magistrates and jurors are asked to give a literal interpretation to the word “hostility”. In most hate crime cases, “hostility” is evidenced where an offender verbalises prejudice through the use of angry slurs. However these verbal outbursts are less prevalent in disability hate crime cases. As one of our interviewees noted “we’re very much trying to knock a square peg into a round hole trying to fit the facts into a form of language in the legislation that is not really designed to fit” (Interview CPS 20).

The result is the courts rarely accept evidence that a disabled person was selected because of their disability as proof of "hostility". Instead judges tend to declare that this is an issue of “vulnerability”. Judicial declarations at sentencing that victims of disability hate crime are “vulnerable” is highly problematic.  By labelling disabled people as “vulnerable”, the courts are perpetuating a false representation that disabled people are innately weak. This, in turn, displaces blame for the offender’s discriminatory and prejudice-based actions. 

Recommendations for action by the Government

Based on the findings from Hate Crime and the Legal Process, it is recommended that Parliament consider two options for law reform to help change the way that disability hate crime is recorded, prosecuted and sentenced:

1. The Government should ensure that there is parity in legislative protection given to all strands of hostility (i.e. race, religion, sexual orientation, disability and transgender identity). This may mean that disability is added to the provisions under the Crime and Disorder Act 1998, or preferably that a new conciliated Hate Crime Act is enacted – outlined more fully in our final report.

2. The Government should amend hate crime legislation to abolish the motivation test (while keeping the demonstration test) and replace it with what is referred to as a "by reason" test. This would mean that the law would apply where a defendant has selected the victim "by reason" of their disability (or presumed disability) (or other protected characteristic).

July 2018