Examination of Witnesses (Questions 163
- 179)
WEDNESDAY 12 MAY 2004
MR ADRIAN
ARBUTHNOT, MR
JIM STRAIN
AND MR
KEN FRASER
Q163 Chairman: We shall continue.
Do you want to make a brief opening statement?
Mr Arbuthnot: Perhaps briefly,
if you would permit. I am here representing the Criminal Justice
Policy Division of the Northern Ireland Office, which is the division
responsible for the current draft Order. I am supported on my
immediate right by Jim Strain, one of our senior legal advisers
and on my far right by Ken Fraser, who is not of the NIO but of
the Office of the First Minister and Deputy First Minister. Obviously
there is a lot of liaison between the NIO and OFMDFM and that
is represented here in our delegation. The minister has set a
very high priority on the present draft Order and, as you are
aware, we have very recently completed a consultation process
in Northern Ireland. The minister welcomes the opportunity for
NIAC consideration of the draft Order and is looking forward to
receiving views as a result of their present investigations.
Q164 Chairman: Perhaps you could
start by explaining how the present law tackles hate crime in
Northern Ireland and what the deficiencies are which this proposed
Order is designed to address?
Mr Arbuthnot: The legislation
which is being brought forward is obviously intended to bring
the present law up to date with current trends in Northern Ireland.
We have in very recent times been seeing an increased ethnic minority
population in Northern Ireland and indeed a greater awareness
of racial attacks. This has been a longer standing issue for England
and Wales, but here in Northern Ireland social changes are coming
about and therefore the law as it currently stands does need to
be updated to take into account this very significant social change
which is happening. We wanted to ensure that we have an up-to-date
body of law which provides for society as it is evolving and underpins
standards for social life, public behaviours, service provision,
etcetera. It is not so much that the current law is necessarily
wrong, but that we feel it is now time to ensure that the future
law is responsive to the needs of society.
Q165 Chairman: You heard what was
said earlier about disability.
Mr Arbuthnot: Indeed.
Q166 Chairman: Are you considering
including it?
Mr Arbuthnot: May I say that disability
has been an issue that we have considered very carefully in the
process of developing the draft Order and I should say at the
outset that the absence of disability from the Order as presently
drafted does not in any way signify a lack of importance to that
issue on the part of the Minister. Attacks on people who have
various types of disabilities are particularly reprehensible attacks,
indeed it is fair to point out that under present guidelines sentencers
may take into account the vulnerability of a particular victim
when coming to a conclusion on the length of a sentence. People
who are vulnerable, and that will include many people who have
disabilities and also people who are elderly and living alone,
and we can think of other categories as well, do already receive
a certain degree of protection through sentencing guidelines.
The draft Order will increase the maximum penalties for a variety
of crimes against individuals and it will also require courts
to take account of aggravating factors in terms of a person's
racial background or racial community, religious grouping or indeed
sexuality. Ministers have taken the view that we wanted to keep
a very firm focus on hostility towards particular groups and have
to date taken the view that violence against people with disabilities
can more often be motivated by opportunism occasioned by the individual's
vulnerability than by hate as such. It was really for that reason
that disability was considered, but at this stage not included
in the draft Order.
Q167 Chairman: May I just ask Mr
Fraser whether he could comment from the other side of the fence
on that? Would you agree with that assessment that it is not necessary?
Mr Fraser: I must say that I have
no particular knowledge of the issues around disability; my area
is race equality.
Q168 Chairman: That is fine. That
is a very helpful answer. Why, when it is in the England and Wales
Order, do you not think it should be in the Northern Ireland Order?
Let me put two reasons. First of all, we are all struggling to
get the corpus of law in Northern Ireland matching more closely
the rest of the United Kingdom. Secondly, is there not a perception
that perhaps you take this form of hate crime less seriously in
Northern Ireland than the rest of the United Kingdom does?
Mr Arbuthnot: I do not think it
is the case that we take it less seriously.
Q169 Chairman: I did not say that
you did. I said would there not be a perception when this is in
the law of the rest of the United Kingdom and not in Northern
Ireland law?
Mr Arbuthnot: At the risk of repeating
myself, sentences are being increased for assaults and vulnerability
is—
Q170 Chairman: That is not the question.
It is not the level of sentence, it is the inclusion or not of
people with disabilities. If you do not include it, will there
not be a perception that Northern Ireland does not consider it
necessary, either because they do not care enough or because they
want to be different, when everything else is moving towards trying
to make the law within the United Kingdom as similar as possible.
Mr Arbuthnot: There very well
may be a perception; I could not dispute that. We heard earlier
witnesses talking in those terms. I think also that disability
is a very wide term and definition of disability can in many respects
be problematical. For example, two individuals have the same medical
condition: one may consider himself disabled and the other may
not. In terms of defining disability and catering for it in the
same way we have catered for the other aggravating factors it
may prove problematical.
Q171 Chairman: They are all problematical.
If someone complains that he has been harassed or assaulted because
he is gay, you have to take his word that this is therefore a
homophobic attack. If he does not say he is gay, then it is not.
Would it not be exactly the same in the example you have given
about two similar people with a disability, one of whom acknowledges
it and the other who is determined not to? What about the gay
person who is not "out" who nevertheless has been attacked
and does not claim that is homophobic harassment?
Mr Arbuthnot: The consultation
we had in Northern Ireland demonstrated a groundswell of concern
and views in favour of legislation in relation to race and religion
and indeed homophobia was added as a result of the consultation
and responses. We did not perceive the same groundswell of views
regarding the inclusion of disability. There did not seem to be,
in terms of this legislation and at this time, a compelling case
to include disability.
Q172 Chairman: Of course one of the
problems which I do acknowledge you have is the lack of hard statistical
evidence. If that were forthcoming, presumably your mind is not
closed on this matter.
Mr Arbuthnot: We are in the closing
stages of the consultation process.
Q173 Chairman: So your mind is closing,
but is not quite closed.
Mr Arbuthnot: The shutters are
very slowly coming down; they are not down yet.
Q174 Chairman: The government's mind
is ajar. Could I put that phrase on your lips?
Mr Arbuthnot: I am sure you could.
Q175 Mr Luke: The Chairman has questioned
all groups about statistics and specifically to do with disability
and we have struggled to find hard statistics about the harassment
of these disabled groups and how they are treated. Has the government
any proposals to start collating that kind of information?
Mr Arbuthnot: Another arm to our
work is our community safety strategy and our community safety
unit has been very busy in recent times setting up local community
safety partnerships. Through those partnerships, we shall be gaining
much more information at local level about the types of incidents
and perceptions and issues which affect local communities in relation
to racial and other abuse. In that way we shall be building up
a picture of what is happening on the ground. We heard an earlier
witness talking about how the PSNI equally will be building up
its statistical records on similar issues.
Q176 Mr Luke: We have talked about
the draft Order. Why are you not proposing to replicate for Northern
Ireland the aggravated offences category of crimes which exists
in England and Wales under the Crime and Disorder Act 1998? Does
the lack of that inclusion not suggest that there is a less than
thorough approach in Northern Ireland compared with the approach
adopted in England and Wales?
Mr Arbuthnot: I might even make
the opposite case. Sometimes there are disadvantages in legislating
behind the rest of the United Kingdom; sometimes there are advantages.
Current research in England and Wales on this issue of aggravated
offences is showing that proving a racist or other motivation
for an offence can be at times problematical. We have therefore
taken a slightly different approach to it: increasing the sentences
but requiring the courts to take into account aggravating circumstances,
aggravating factors when pronouncing a sentence. There are technical
issues in the rest of the United Kingdom as to what sort of charges
are laid. There is the ordinary charge and then an aggravated
charge. Sometimes in issues where, for example, there might be
plea bargaining, the "aggravated" could possibly be
dropped. In Northern Ireland the approach we are adopting tries
to get round that problem. I should also say that our approach
has been very positively supported in local consultation. It has
been welcomed by the police and prosecutors and other groups.
Q177 Mr Luke: Would you accept though
that it has been argued that there is an ambiguity in the sentencing
policy, which undermines the approach being adopted by the government?
Mr Arbuthnot: An ambiguity in
the way we have drafted our legislation?
Q178 Mr Luke: An ambiguity in the
sentencing. Underneath article 4 of the Order the higher maximum
sentences would be restricted to crimes which are aggravated by
hostility.
Mr Arbuthnot: I would not call
it an ambiguity. I would like to think it was more in terms of
flexibility which is given to the courts to take into account
aggravating factors but also factors relating to an individual's
vulnerability.
Q179 Mr Luke: Would you accept that
the evidence produced by the Cambridge Institute of Criminology,
which suggested that the Crime and Disorder Act as it is in England
and Wales does send a very strong message that racist crime will
not be tolerated, could be the approach promoted in your part
of the world?
Mr Arbuthnot: Yes, I would agree
with that and indeed the draft Order does place a requirement
on the court to state openly in court if an aggravating factor
has been taken into account. So it will be bringing to the fore
and publicising offences which have been aggravated by the various
factors listed.
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