Contemporary Issues in Law - Volume 13 - Issue 1
SHOULD HATE CRIME BE SENTENCED MORE SEVERELY?
Michael Cavadino Professor of Law, University of Central Lancashire
The assumption that hate crimes should be sentenced more severely than crimes lacking the hate element can and should be questioned. When the justifications for such enhanced sentences are closely examined, it appears that they are unlikely to reduce the occurrence of hate crime or to increase the satisfaction of victims. A moderate increase in penalties may be warranted on the grounds that such crimes may be typically cause more harm than offences lacking the hate element, and therefore they are deserving of greater punishment according to the principle of retributivism. Nevertheless, concentrating on punitive measures as the primary response to hate crime may be misplaced. A shift in emphasis towards more reformative and restorative forms of justice might well hold out better prospects for dealing with hate crimes effectively and ensuring that fewer victims suffer in future.
PERCEPTION OF HATE CRIME: THE ENDURING DIFFICULTY OF THE LAW AS AN AGENT OF SOCIAL CHANGE
Dr Kim McGuire Lancashire Law School, University of Central Lancashire
This article considers the law in action with regard to 'hate crime'. In particular it analyses the role of 'perception' in recognising, defining and prosecuting hate crime, with specific examples from UK and EU case law, and the results of qualitative semi-structured interviews from the legal profession and victim advocates. It moves from description of UK and EU legislation dealing with 'hate crime' into discussion of perceptions of motivation and hostility, the purpose of prosecution, and how these relate to interpretations in action. It considers the various theoretical approaches to legislation and sentencing and the type of 'evidence' deemed sufficient to enable prosecution for 'hate crime', and reveals how these interact in context. The conclusion reveals an unacknowledged over-reliance on the presumption of determining motivation and inner thoughts from behaviour, either at the time of the offence, or from previous actions. Moreover, that there is a failure to recognise our own potential bias. It is argued that such assumptions and weaknesses can both under and over attribute potential bias, and so fail to achieve the aims of Articles 1, 10, 21 and 47 of the Charter of Fundamental Rights of the European Union. To engage with combatting bias the need for more awareness raising for victims, offenders, judiciary, and the police, is highlighted.
EU LEGAL RESPONSES TO HATE CRIME
Dr Bogusia Puchalska Lancashire Law School, University of Central Lancashire
Providing effective responses to hate crime in Europe continues to pose a challenge to both the European Union and the Council of Europe. The impact of the EU's main instrument - Framework Decision 2008/913 - is debatable due to the formidable challenge of setting common ground rules and, at the same time, of mitigating the historically entrenched cultural and legal differences between the Member States, which are likely to impact on the effectiveness of this Directive's implementation and application. At the same time, the EU's actions and activities complementing the Framework Decision, as well as the ECtHR contributions, are bound to raise general awareness and stimulate a Europe-wide debate, which is necessary if hate crime and hate speech are to be effectively identified, reported and eradicated from Europe.
HATE INCIDENTS AS RECALLED: THE ENDURING PRESENCE OF THE PAST WITHIN THE PRESENT
Professor Michael Salter Lancashire Law School, University of Central Lancashire
What is the subjective 'impact' on victims and other witnesses of being institutionally required to repeatedly recall their experiences of hate incidents to different legal officials of the criminal justice system during the investigative, pre-trial and trial processes? The general EU policy emphasis on 'unmasking' discriminatory motivation and combating 'underreporting,' often ignores how victims can have understandable reasons for not reporting hate incidents because aspects of the legal response can be experienced whether through victims' perceptions or anticipations as doing them more harm than good: a phenomenon that can be termed 're-victimisation.' Such re-victimisation includes having the meaning of their recalled experiences reclassified in alien legal and policy terms that uproot it from their original contexts, sometimes in ways that are damaging. Such reporting of experiences of victimisation can be understood as the 'institutionalisation' of memory involves memory's transformation according to pre-set and extrinsic criteria for 'acceptable' and 'unacceptable' types of victim and witness memory. The experiential topic of 'hate crime as recalled' raises a series of empirical issues and questions in relation to how memories are retrieved, classified and responded to as possible evidence by CJS officials. Particular issues arise in relation to witnesses and victims of disability related hate crime who are identified as having a 'learning difficulty.' It is vital that the response of the CJS is not itself experienced as exhibiting an additional layer of discrimination, and that the original sense of victimisation is not aggravated by unnecessary forms of institutional re-victimisation.
THE ROLE OF AGGRAVATED OFFENCES IN COMBATING HATE CRIME 15 YEARS AFTER THE CRIME AND DISORDER ACT 1998: TIME FOR A CHANGE?
Richard Taylor Professor of English Law, Lancashire Law School, UCLAN
The racially aggravated offences created by the 1998 Act (later extended to religious aggravation) were based on a rather arbitrary selection of underlying crimes and have proved difficult to interpret and apply for a number of reasons. Moreover, the relationship between the aggravated offences and the more general duty to increase the sentence for any offence where there is racial (or religious) aggravation is problematical. This is illustrated by the common misunderstandings of the case law on the degree of mutual exclusivity between the crimes underlying the aggravated offences and the more general aggravated sentencing provisions. In the context of the question referred by the government to the Law Commission, as to whether the aggravated offences should be extended further to include a number of other grounds of aggravation, it is argued that this would be counter-productive and that their further extension would lead to even greater confusion and complexity. It is suggested that the preferable course would be to abolish the aggravated offences and to focus on a broader and better articulated sentencing provision of general application which would be all the more effective without the complications of its uncertain relationship with an anomalously selected group of aggravated offences.