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

The first part in this two-part article explored the application of hate crime laws in the sentencing of Scarlett Jenkinson and Eddie Ratcliffe for the tragic murder of Brianna Ghey, a 16-year-old transgender child. This second part sets out the current statutory framework for prosecuting hate crimes in England and Wales before providing an analysis of potential shortcomings and recommendations for reform.

Hate as an Aggravated Offence

The Crime and Disorder Act 1998¹ (as amended) created a number of specific offences of racially or religiously aggravated crime, which apply to offences of wounding, assault, damage, harassment and threatening/abusive behaviour. Section 28 of the Act provides that:

1. An offence is [racially or religiously aggravated] for the purposes of sections 29 to 32 if—
   (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a [racial or religious group]; or
   (b) the offence is motivated (wholly or partly) by hostility towards members of a [racial or religious group] based on their membership of that group.

Hostility is not defined in statute and is given its ordinary meaning. To prove a racially or religiously aggravated offence of wounding, assault, damage, harassment and threatening/abusive behaviour under ss.28-32 the prosecution must prove the following:

• That the victim(s) belong to a particular racial or religious group or that the offender presumed so at the time of the offence (whether or not that was in fact correct).
• That the offender demonstrated some hostility towards the victim(s) based on the actual or presumed membership of a racial or religious group.
• That the demonstration of hostility relied upon was more or less contemporaneous with the conduct element of the offence, or that it can immediately be related to it in time.
• In cases involving multiple offenders, that each offender, in committing the conduct element of the substantive offence, was either responsible for or associated with the demonstration of hostility proved (in which case all will be liable for the aggravating feature).

Where each element is proven so that the tribunal of fact is sure, the conviction is recorded on the offender’s criminal record as a religiously or racially aggravated offence. Where a defendant is acquitted of the aggravated offence but convicted of the underlying offence, the court cannot sentence on the basis that the underlying offence was religiously or racially aggravated.

Offences of Inciting Hate

Offences under Parts III and 3A of the Public Order Act 1986² (as amended by the Racial and Religious Hatred Act 2006) are those in which a defendant makes a “threatening, abusive or insulting” act (words, behaviour, written material) which is intended to or likely in all the circumstances to stir up hatred on the grounds of race, religion or sexual orientation.

There is also a specific offence of racist chanting under the Football (Offences) Act 1991³ which makes it an offence to engage or take part in chanting of an indecent or racialist nature at a designated football match.

Convictions for offences under these statutes are recorded as religiously or racially aggravated offences on the offender’s criminal record.

Currently there is no statutory provision for charging or sentencing an offence aggravated by hostility based on gender. Following the Law Commission’s 2020 consultation⁴ on hate crime laws in England and Wales, it was recommended that “sex or gender” ought not be added to the protected characteristics for aggravated offences and enhanced sentencing as it would be ineffective at protecting women and girls and in some cases, counterproductive. There are concerns that if applied in the context of rape and domestic abuse it could make it more difficult to secure prosecutions and create unhelpful hierarchies of victims. However, the Commission made recommendations to provide greater protection, namely:

• Extending the offence of stirring up hatred to cover stirring up hatred on the grounds of sex or gender. This would help to tackle the growing threat of extremist misogynist “incel” ideology, and its potential to lead to serious criminal offending.
• A government review of the need for a specific offence to tackle public sexual harassment, which would likely be more effective than adding sex or gender to hate crime laws.⁵

Subsequently, the new Protection from Sex-based Harassment in Public Act 2023,⁶ which amends the Public Order Act 1986,⁷ created an offence of sex-based intentional harassment, alarm or distress. Public sex-based harassment is unwelcome and unwanted behaviour directed at a person in a public space because of that person’s sex. A conviction under the 2023 Act is recorded as a sex-based harassment offence unlike a conviction for harassment that is sentenced under enhanced sentencing powers.

Enhanced Sentencing for Hate Crimes

The Sentencing Act 2020 created powers for enhanced sentencing. Under s.66 of the Act, in cases where the prosecution proves that:

• at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on their actual or perceived race, religion, sexual orientation, disability or transgender identity, or
• the offence was motivated (wholly or partly) by hostility towards members of a racial group, religious group, persons of a particular sexual orientation, persons who have a disability or persons who are transgender based on their actual or perceived membership of that group

the court must treat that fact as an aggravating factor in sentencing. In a case where a demonstration of hostility can be proved, there is no need also to prove motivation, and vice versa.

In finding evidence that Scarlett Jenkinson and Eddie Ratcliffe were jointly motivated by hostility towards Brianna Ghey based on her transgender identity, Justice Yip deployed the s.66 sentencing powers to raise each starting point for sentence.

The evidential test for enhanced sentencing is very close to that for racially and religiously aggravated offences under Crime and Disorder Act 1998. This overlap provides support for expanding the catchment of aggravated offences to include those involving hostility towards a person’s sexual orientation, disability and transgender identity.

Discrepancies in Hate Crime Laws

Enhanced sentencing under s.66 of the SA 2020 is available for offences based on hostility towards race, religion, sexual orientation, disability or transgender identity. However, the hostility element will not be recorded on the offender’s criminal record. This lacuna has the effect of preventing courts from being able to identify any patterns of hostility in a defendant’s offending.

Take for example, a defendant falls to be sentenced for Grievous Bodily Harm and the facts of the offence are that the defendant demonstrated hostility towards the victim based on their disability immediately before the assault. A recent conviction for Actual Bodily Harm appears on the defendant’s criminal record, however, unbeknownst to the Court the previous offence was sentenced under s.66 of the Sentencing Act to reflect the hostility demonstrated by the offender towards the victim based on their disability. In this scenario, without the prosecutor first digging around in the CPS to discover the underlying facts of the previous offence, a sentencing judge is very unlikely to be in a position to properly consider the hate crime element of the previous assault as an aggravating factor when sentencing the index offence.

Discrepancies in the statutory framework for dealing with hate crimes means that the only existing offence based on hostility towards a person’s sexual orientation is one of inciting hatred under the Public Order Act 1986. Furthermore, there is currently no way of recording an offence motivated by hostility towards an individual or group based on their disability as a hate crime.

These complicated legislative discrepancies have raised calls for reforms. The Law Commission recommended the following:

“Across the various hate crime laws (including aggravated offences and stirring up offences) for all protected characteristics to be treated equally. This would provide much greater protection for victims of disability and LGBT+ hate crime in particular.”

Were these recommendations enacted by parliament, offences of wounding, assault, damage, harassment and threatening/abusive behaviour could all be charged as aggravated offences where there is evidence of hostility towards the designated protected characteristics. Convictions would be recorded as hate crimes which would enable the courts to properly identify patterns of hate crimes in a defendant’s offending history and sentence accordingly.

Final Remarks

Campaign groups regard current legislative discrepancies as imposing a hierarchy of protected characteristics. As Home Office records show a rise in hate crimes against particular groups⁸ in recent years, calls for reform are likely to attract increased fervour. In the meantime, legal practitioners can continue to assist the courts in handling cases where there is evidence of hostility-based offences by ensuring the relevant hate crime legislation is applied accordingly.

To instruct Olivia Chessell, contact our clerks at clerks@2drj.com or on 020 7936 2613.

1. Ibid. ↩︎
2. https://www.legislation.gov.uk/ukpga/1986/64/contents ↩︎
3. https://www.legislation.gov.uk/ukpga/1991/19/section/3 ↩︎
4. https://lawcom.gov.uk/project/hate-crime/ ↩︎
5. Ibid. ↩︎
6. https://www.legislation.gov.uk/ukpga/2023/47/enacted ↩︎
7. https://www.legislation.gov.uk/ukpga/1986/64 ↩︎
8. https://www.gov.uk/government/statistics/hate-crime-england-and-wales-2022-to-2023 ↩︎