The Law on Hate Crime Today
Are current prosecutions for Hate Crime
offences insulting?
STEP,
DUNGANNON
07th AUGUST 2013
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The Law on Hate Crime Today

The term “Hate Crime” is misleading. ‘Hate’ is not really the issue, it has
more to do with discrimination.

BUT key issue under the law is “Hostility”.

There is currently no definition of “Hate Crime” in legislation (Statute).

There are however two key pieces of legislation in NI:
Public Order (NI) Order 1987;
(2) Criminal Justice NI (No.2) Order 2004;
(1)
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(i) Public Order (NI) Order 1987
[For England and Wales see Public Order Act 1986 (POA 1986)]

The Public Order (Northern Ireland) Order 1987 creates a number of substantive
hate crime offences with regard to religious belief, colour, race, nationality, ethnic
or national origins. (2004 Order to include sexual orientation and disability.)

For an offence to be committed under the provisions of the 1987 Order, there has
to be one of the following: it has to be ‘threatening, abusive or insulting’, and it
has to be intended to, or likely in all the circumstances to stir up hatred.
Note - A person will not be guilty of such an offence if he did not intend his words
or behaviour, or the written material, to be threatening, abusive or insulting and
was not aware that they might be.
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(ii) Criminal Justice NI (No.2) Order 2004
[For England & Wales see Crime and Disorder Act 1998 (CDA 1998)]

This Act covers “offences aggravated by hostility”. If the perpetrator (Defendant)
in committing the offence demonstrates or was motivated by hostility on the
grounds of race, religion, sexual orientation or disability (or presumed by the
Defendant) that offence becomes “Aggravated.”

An Aggravated Offence is seen as more serious because of the context of the
crime and usually attracts a higher sentence as a result.

Examples of basic offences that can be aggravated in this way are assault,
criminal damage, and certain public order offences involving threatening, abusive
or insulting conduct, harassment or stalking, and putting people in fear of
violence.
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Meaning of “Hatred”
Hatred is defined as meaning hatred
against a group of persons in Northern
Ireland defined by reference to religious
belief, colour, race, nationality or
ethnic or national origins, sexual
orientation or disability.
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Why is the term Hate Crime
used?

The Public Prosecution Service (“PPS”) and Police when
using the term “Hate Crime” are not generally referring to
the aforementioned statutes.

In recent times the Police, Prosecution and Judicial
authorities have adopted a general broad definition of hate
crime.

This is a ‘perception-based definition’ which was adopted
primarily for recording of offences purposes.
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The Perception Based Definition
of Hate Crime

The PPS and other Criminal Justice Agencies adopt the following
definition:

“Any incident which constitutes a criminal offence perceived
by the victim, or any other person, to be motivated by
prejudice or hate towards a person’s race, religion, sexual
orientation or disability.’’

This is the 'perception-based approach' which has generally
been accepted in recent years in relation to the definition of hate
crime, as set out in the MacPherson report arising from the
murder of Stephen Lawrence.

This is known as the “Lawrence”/“MacPherson” definition.
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The Lawrence Definition is wider than the
Statutory Definitions
This definition is wider that statute definition:
Covers all 5 'protected categories‘:
(i)Race,
(ii)Religion,
(iii)Sexual Orientation,
(iv)Disability;
(v) Transgender *
Perceived by victim (or any other person) to be motivated by
hostility or prejudice.
Remember CJO (NO.2) NI 2004 requires proof of hostility –
demonstrated or motivated by.
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Recorded Hate Crime Stats (Home Office)

According to the Home Office, in the year 2011 to 2012, crimes
that were recorded by police as hate crimes represented
around 1% of all recorded Crimes.

In 2011 to 2012, there were 43,748 crimes recorded by police
as hate
crimes.
These were broken down across the five protected groups as
follows:
race - 82%
sexual orientation - 10%
religion - 4%
disability - 4%
transgender identity - 1%.
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Recorded Hate Crime Stats (NI)

Institute for Conflict Research, based in Belfast, compiled
figures which show:

13,655 hate motivated incidents were reported to the police in
the last five years.

That includes everything from cases such as assaults through
to criminal damage and name-calling.

The report found that out of almost 14,000 complaints only 12
cases were successfully prosecuted.
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Why are so few hate crimes
successfully prosecuted?

The legal definitions and Lawrence definitions are not
the same. What is considered/recorded as a hate crime
may not be so in law.

There is no distinct hate crime legislation or offences.

The law focuses on the perpetrator’s mindset = hard to
prove. Burden of Proof – Beyond reasonable doubt can
be difficult to overcome.

There may be no witnesses.

Witness testimony can be conflicting or contradictory.
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UK Perspective Case Study –
JOHN TERRY

The John Terry Case is the most high-profile criminal trial of a
racially aggravated offence in recent times.
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Facts of the Terry Case


On 23rd October 2011 Terry was playing for Chelsea in a
televised match against West London rivals QPR.
He was clearly seen by television footage swearing and
shouting vebally abuse. In particular he called Anton
Ferdinand (a mixed-race English player) a:
“Fxxxxxx Black Cxxx”
http://www.theguardian.com/football/video/201
1/oct/24/john-terry-anton-ferdinand-video

Terry was subsequently charged with a racially aggravated
offence Contrary to Section 31(1)(c) CDA 1998.
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Time-Line of Events
(Tues) 01.11.11 - Police confirm formal investigation.
(Mon) 28.11.11 – Investigations under way and confirm Terry was
interviewed under caution.
(Thurs) 01.12.11 – File passed to prosecutors. The CPS to consider
findings of the 5wk police investigation.
(Wed) 21.12.11 – CPS confirm Terry will be charged with racially
abusing Ferdinand. 1st Court date before West London Magistrates'
Court on February 1, 2012.
(Wed) 01.02.12 – Not Guilty plea entered and court date is set for 9
July.
(Fri) 13.07.12 – Terry is cleared at Westminster Magistrates' Court.
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The Charge – Terry’s Indictment

“On 23rd October 2011 at Loftus Road Stadium, London W12 you
used threatening, abusive or insulting words or behaviour, or
disorderly behaviour within the hearing or sight of a person likely to
be caused harassment, alarm or distress which was racially
aggravated in accordance with section 28 of the Crime and Disorder
Act 1998. Contrary to section 31 (1) (c) of the Crime and Disorder Act
1998.”
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Terry’s Defence

Terry claimed that he was merely repeating words already spoken by
Ferdinand. He used these words by way of robust denial of what Ferdinand
alleged he has said.

There was doubt as to what Ferdinand said and when he and Terry had a
verbal altercation(s).

A view from the outside of the case would suggest that there was confusion
around the circumstances in which Terry used the words. This would have
created a doubt in the case as to prevent the burden of proof (“beyond
reasonable doubt”) being satisfied.
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Judicial Decision in Terry’s Case

“Even with all the help the court has received from television footage, expert
lip readers, witnesses and indeed counsel, it is impossible to be sure
exactly what were the words spoken by Mr Terry at the relevant time.”

“It is a crucial fact that nobody has given evidence that they heard what Mr
Terry said or more importantly how he said it. He has given effectively the
same account throughout.”

“Nobody has been able to show that he is lying. The lip readers do not
provide evidence that categorically contradicts his account.” “I have
assessed John Terry as a credible witness.”
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Judicial Decision in Terry’s Case
Continued

“Weighing all the evidence together, I think it is highly unlikely that Mr
Ferdinand accused Mr Terry on the pitch of calling him a black cXXX.
However I accept that it is possible that Mr Terry believed at the time, and
believes now, that such an accusation was made.”

“Mr Cole gives corroborating (although far from compelling corroborating)
evidence.”

“In those circumstances, there being a doubt, the only verdict the court can
record is one of not guilty.”
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Fictional Case of Pedro Da Costa
The PSNI ask you for your opinion on issues in this case:




INFORMATION PROVIDED VIA 999 CALL
Pedro is black he is from Cape Verde (and holds a Portuguese
passport.)
He was attacked in Dungannon by group of local youths. They were
wearing hoodies and halloween masks.
Pedro thinks one may have shouted “Get down Nxxxxx!” before he
was punched and kicked to the ground.
INFORMATION PROVIDED BY POLICE
All bar one of the group gave a no comment interview. This one said
he did not know who punched or kicked Pedro but did see punches
and kicks thrown. He accepted he used the Nxxxxx word.
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NEW INFORMATION

Police believe all of the youths may be black. The youths may also
be Portuguese.

Further witness reports state that they heard the words “Get down
now” shouted but no racist language used.

Pedro does not wish to give evidence and wants to withdraw his
complaint. He also tells Police he is afraid of reprisals.

Upon further questioning the youths state that they are rap music
fans and regularly use the nxxxxx word as part of youth culture.

Patrick a white Dungannon native was also attacked. Patrick claims
he was called a “filthy gypsy.”
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Recent Developments

The Scottish Executive in 2009 extended legislation to cover
transgender as protected group.

Manchester Police have in recent months widened hate crime
definition (ie Lawrence type) to cover Punks, Goths an Emo
groupings.

The Law Commission in England and Wales, under Commissioner
Professor David Ormerod QC is currently consulting on extending
the law on hate crime to cover sexual orientation, transgender
identity and disability.
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Talking Point
Are current prosecutions for
Hate Crime offences insulting?
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