A Review of Hate Crime Laws in the Wake of Brianna Ghey’s Murder

The well reported case of two teenagers convicted for the murder of 16-year-old transgender child, Brianna Ghey, offers an opportunity for legal practitioners to review the scope and limitations of existing hate crime legislation. The sentencing remarks of Mrs Justice Yip DBE in R v Scarlett Jenkinson and Eddie Ratcliffe[1], are considered in this two-part article which provides an overview of hate crime laws in England and Wales.

The term ‘hate crime’ is used in this article as an umbrella term for offences in which there is evidence of hostility towards the victim(s) based on their actual or presumed membership of a group identified by race, religion, sexual orientation, disability or transgender. Any crime motivated by hostility on the grounds of those five characteristics can be sentenced as a hate crime. However, only crimes motivated by hostility on the grounds of race or religion may be charged as a hate crime. This article seeks to provide clarity on the legislative differences.

Campaign groups have expressed concern that hate crime laws do not treat all protected characteristics equally. Whereby, someone assaulted because of their disability is not afforded the same access to justice as someone assaulted because of their race.  At a time when offences motivated by religious and transgender hostility are on the rise[2] it is important for our legislative framework to be robust and understood well enough to be applied properly.

Brianna Ghey’s Murder, a Hate Crime?

Was the murder of Brianna Ghey a hate crime? In her sentencing remarks, Justice Yip gave significant consideration to whether the murder offences were aggravated by hostility towards Brianna based on her transgender identity.

In summary, yes, the murder of Brianna Ghey was a hate crime. At sentencing it was found by the learned Judge that Eddie Ratcliffe had been motivated to murder Brianna by hostility towards her based on her transgender identity and therefore the judge was duty bound to treat that as an aggravating factor and state in open court that the joint enterprise offence was so aggravated (s.66 Sentencing Act 2020[3]).

In sentencing Eddie Ratcliffe, Justice Yip made the following remarks, they are worth citing in detail:

14.   […] You did not know Brianna. You knew only what Scarlett told you. She said Brianna was transgender and sent you pictures of her. Your messages about Brianna were transphobic.[…] Because Scarlett is an unreliable witness, I will not use her evidence that you “had a problem with” gay and transgender people against you. Nor will I dwell on the unpleasant messages about someone being gay and what you might do to them. But in your messages about Brianna, you undoubtedly displayed hostility towards her based on her transgender identity.

16.   Using the table in Schedule 21[of the Sentencing Act 2020] for young offenders, the starting point for those aged 15 or 16 at the date of offence is 20 years if the case falls into the category for which the adult starting point is 30 years. It is 17 years if the adult starting point would be 25 years. It is agreed by everyone that those are the two categories to consider.

17.   Paragraph 3 of the schedule explains that a case will fall in the higher category if the seriousness of the offence is particularly high. It gives examples of cases that will normally be included in that category. It does not say they are the only examples of offences of particularly high seriousness, but this is a good guide to judges. Two examples are relevant here. They are: “a murder involving sadistic conduct” and “a murder that is aggravated by hostility related to transgender identity”.

The learned Judge was satisfied on the evidence that the offences fell within Paragraph 3, Schedule 21 of the Sentencing Act 2020 because the murder was motivated by sadistic conduct, and in Eddie Ratcliffe’s case the murder was also “at least in part, motivated by hostility to Brianna because she was transgender” [§19]. As such, Justice Yip applied the statutory enhanced sentencing powers to raise the starting point for each mandatory minimum life sentence to 20 years imprisonment for joint enterprise murder:

21.   […] I therefore find that you both took part in a brutal and planned murder which was sadistic in nature and where a secondary motive was hostility towards Brianna because of her transgender identity.

Where enhanced sentencing was used to raise the starting point for sentence, the learned Judge was careful not to double count transgender-based hostility when weighing other aggravating factors to determine the final sentences (22 years for Scarlett Jenkinson and 20 years for Eddie Ratcliffe).

Diminished Enhanced Sentencing Powers?

There are no statutory provisions available to charge an offence of assault based on transgender hostility as an aggravated offence. Therefore, the evidence of Eddie Ratcliffe having demonstrated hostility towards Brianna based on her transgender identity did not make up part of the offence about which the tribunal of fact would need to be sure in returning a guilty verdict. Instead, that evidence was material only for the purpose of enhanced sentencing. As such, the teenagers’ convictions will not be recorded on the Police National Computer database as hate crimes.

While the hate crime element of Brianna Ghey’s murder may have been widely reported, violent offences sentenced under statutory enhanced sentencing powers are not recorded as such. This legislative lacuna presents a potential injustice to those who fall victim to a hate crime that is not aggravated by race or religion under the Crime and Disorder Act 1998[4].

Further review of hate crime laws including the Sentencing Act 2020 and the Crime and Disorder Act 1998, is explored in the second part of this article.

[1] https://www.judiciary.uk/judgments/r-v-scarlett-jenkinson-and-eddie-ratcliffe/

[2] https://www.independent.co.uk/news/uk/home-office-victim-support-wales-england-lgbtq-b2424485.html

[3] https://www.legislation.gov.uk/ukpga/2020/17/contents/enacted

[4] https://www.legislation.gov.uk/ukpga/1998/37/contents/1998-09-30