Hate Crime Offences | Sentencing
As opposed to most crimes, where the offender is attracted to some form of object which the victim controls or possesses, hate crime is motivated by the personal standing of the victim, is one motivated by prejudice involving, normally, ethnicity, religion or sexual orientation and is regularly accompanied by an act of violence. A victim can be subjected to more than one type of hate crime.
The North East Crown Prosecution Service has recently published data relating to Hate Crime Sentencing which Helen Holder of Kangs Solicitors now considers.
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The Nature of Hate Crime | Kangs Serious Crime Defence Solicitors
Hate crime involves offences based on
- Sexual Orientation
- Transgender identity
Hate crime is generally carried out by way of:
An offender may be charged with common assault, actual bodily harm or grievous bodily harm.
Conducted by threats or name-calling.
Incitement to hatred
Occurs when the perpetrator behaves in a fashion which is threatening and intended to invoke hatred by way of, for example, videos, music, and material posted on websites.
When proven by the Prosecution that an offender has either demonstrated hostility or been motivated by hostility to any of the five protected characteristics listed above, any crime can be prosecuted as a hate crime.
The definition used by the police and the Crown Prosecution Service to identify hate crimes is:
‘Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity.’
At that point, these crimes are covered by the Crime and Disorder Act 1998 and section 66 of the Sentencing Act 2020 which allows the Prosecutor to apply for an uplift in sentence upon conviction.
Uplift in Sentencing Upon Conviction | Kangs Sentencing Guide Solicitors
The Sentencing Council has produced guidance as to how the Courts should deal with a Prosecution’s application for an uplift in sentencing.
The Court should not conclude the offending was aggravated by hate without first putting the offender on notice and allowing the defendant to challenge that allegation.
If the Court concludes that the offending involved any of the five protected characteristics listed above, the following approach is to be followed:
- ‘sentencers should first determine the appropriate sentence, leaving aside the element of aggravation related to race, religion, disability, sexual orientation or transgender identity but taking into account all other aggravating or mitigating factors;
- the sentence should then be increased to take account of the aggravation related to race, religion, disability, sexual orientation or transgender identity;
- the increase may mean that a more onerous penalty of the same type is appropriate, or that the threshold for a more severe type of sentence is passed;
- the sentencer must state in open court that the offence was aggravated by reason of race, religion, disability, sexual orientation or transgender identity;
- the sentencer should state what the sentence would have been without that element of aggravation.’
The extent to which the sentence is increased depends upon the seriousness of the aggravation.
A high level of aggravation could be indicative by reference to the offender’s intention, for example:
- if it was planned
- there existed a pattern of offending
- by considering the impact on the victim and others
- if the victim was providing a service to the public
- the offence was repeated and prolonged
Examples Of Uplift In Sentencing | Kangs Sentencing Solicitors
CPS North East has recently published the following:
‘The defendant was sentenced for a racially aggravated s.4a Public Order offence after racially abusing a police officer who had sought to get him medical attention. The defendant received an immediate custodial sentence of 12 weeks. The court announced the sentence would have been one of 8 weeks, but they had imposed a 4-week uplift for the racially aggravated element.’
‘The defendant was arrested for an unrelated matter and during the course of his arrest he assaulted the police officer whilst repeatedly making homophobic slurs towards him. The defendant received a 12-month community order which included 80 hours unpaid work. The sentence would have been one of 40 hours unpaid work but was doubled to 80 hours due to the hate crime element.’
How Can We Help? | Kangs National Criminal Defence Solicitors
It is clear that once the Prosecution identify an offence as, potentially, being a hate crime, the repercussions on sentencing, in the event that the court agrees, will be substantial.
It is therefore vitally important that anyone accused, or anticipating being accused, of a hate crime immediately instructs experienced defence solicitors to provide support in contesting the accusations and, where appropriate, to seek to mitigate any possible Sentencing.
If we can be of assistance, our Team is available via telephone 0333 370 4333 and by email firstname.lastname@example.org.
We provide initial no obligation discussion at our three offices in London, Birmingham and Manchester.
Alternatively, discussions can be held virtually through live conferencing or telephone.
The Team at Kangs Solicitors will be pleased to hear from you and for further information please contact: