Law Commission consultation on hate crime - Law Society response

The proposals

In its consultation paper, launched in September 2020, the Law Commission made a number of proposals for reform of hate crime laws.

Hate crimes are acts of violence or hostility directed at people because of who they are. Hate crime laws have developed in various phases over the past two decades, and the law currently recognises five protected characteristics: race; religion; sexual orientation; disability; and transgender status.

But the criminal law does not treat all of those protected characteristics equally. This means that someone who is assaulted based on disability is not afforded the same protection as someone who is assaulted because of their race.

Other major concerns include the complexity and lack of clarity in the current laws which can make them hard to understand, and concerns about the particular challenges in prosecuting disability hate crimes

There have also been calls for hate crime laws to be expanded to include new protected characteristics to tackle hatred such as misogyny and ageism, and hostility towards other groups.

The proposals for reform include:

• equalising protection across all of the existing protected characteristics. This would involve extending the application of aggravated offences, stirring up hatred offences, and potentially football chanting offences to those characteristics that are not already covered
• adding sex or gender to the protected characteristics
• establishing criteria for deciding whether any additional characteristics should be recognised in hate crime laws, and consulting further on a range of other characteristics, notably “age”

Our view

The Law Society agrees with the Law Commission's view that while the current law has provided a solid starting point for tackling hate crime, it has developed in an inconsistent, piecemeal way. It would benefit from reforms that provide greater consistency, clarity and fairness.

We acknowledge the defects in existing hate crime laws as set out in the consultation and agree that the current legal framework is incoherent and to be found in multiple statutes. We therefore support proposals for a consolidating stand-alone hate crime act offering consistent protections across grounds, save where there is a need for exceptions.

We agree with the Commission’s proposal that in order to consider whether any additional characteristics (e.g. sex or age) should be included there should be a set of criteria to determine the need for new groups to be protected by hate crime law.

The suggested criterial are: 1) demonstrable need, based on the prevalence of crime motivated by hostility or prejudice toward the group; 2) that additional harm is caused by the targeting based on hostility or prejudice to members of that group and to society more widely; and, 3) that the protection of the characteristic is suitable for inclusion in the hate crime legislation, in that it would fit logically and be workable in practice.

We comment on the difficulties that may arising in drafting the proposed offences relating to hatred or hostility arising on the grounds of sex or gender, and in relation to age.

What this means for solicitors

If the Commission’s proposals on hate crime offences are enacted into law criminal solicitors, be they prosecutors or for the defence, will need to become familiar with them.

Next steps

The Law Commission will now consider all the responses it receives to the consultation submitted by a number of interested organisations and individuals, and consider what, if any, changes may need to be made to the proposals.