Examination of Witnesses (Questions 180
- 199)
WEDNESDAY 12 MAY 2004
MR ADRIAN
ARBUTHNOT, MR
JIM STRAIN
AND MR
KEN FRASER
Q180 Chairman: Just before we move
on to the sentencing side, you said just now that you did not
think that there was a groundswell of opinion wanting disability
to be included in this Order. Have not the people whom you have
heard make representations to us this afternoon also made representations
to the Northern Ireland Office?
Mr Arbuthnot: Yes, we have indeed
received those submissions in the course of the consultation.
Q181 Chairman: Ms Piggot, for example,
with a lot of local knowledge, on the ground, at the coal face
one might say, gave us some very compelling reasons why disability
needed to be included. Why do you remain so unpersuaded of this,
never mind what the others have said in a slightly more academic
tone? When you get representations from people who live amongst
and work for people with these disabilities is that not very persuasive?
Mr Arbuthnot: It is indeed and
that is why we are still at the stage of considering the replies
to the consultation and weighing up the evidence. The earlier
witnesses have said that there is a lack of statistics available
in relation to disability in general and the evidence we heard
earlier from Mencap referred to a very specific and narrowly defined
aspect of disability.
Q182 Chairman: Yes, I made that clear
in my questions to her; you will remember that. At the same time,
she said that she is in touch with all the other bodies which
deal with disability and it was as bad for someone who had lost
a leg and was sitting in a wheelchair, as I put it to her just
to try to find as clear a distinction as I could make between
someone with a mental disability or mental handicap and someone
whose disability was purely physical. She said no, that there
was a real problem. If there is a real problem, then the perception
that you are not prepared to do anything about it because you
find it is difficult as a question of identification or classification
does not really hold water, does it, since in other areas which
can be difficult, homophobia for example, it is by definition
self-classification which is the criterion, which you heard Inspector
Dempsey talk about? Inspector Dempsey said you cannot expect—I
am putting words into his mouth—the PSNI to be able to recognise
gays and lesbians on the streets. However, if they come and say
this is an aggravated crime because this is what they are, then
that is self-classification. Why can that not work just as well
for disabled people, either with a mental handicap or a purely
physical one?
Mr Arbuthnot: Of course we shall
take very seriously all the representations made to us.
Q183 Chairman: No; you are allowed
to come here and give us an opinion. I am asking you what your
opinion is about the relative difficulty. I know you have a very
fine party line to follow, but you are a very senior adviser to
the government and you must have an opinion.
Mr Arbuthnot: I should like to
be convinced that there is hostility involved as opposed to what
I might describe as opportunism flowing from a person's vulnerability
as a disabled person. I think that the draft Order that we have
at the moment is very much intended to deal with cases of hate
and hostility towards groups of individuals. I have heard the
evidence today where that type of hate and hostility may extend
toward people with mental handicap of one sort of another, but
we would want to make sure that the draft order deals with hate
crime rather than opportunistic crime and that is where the sticking
point has been up to now.
Q184 Chairman: I do want to press
this a little more. I put to you the problem of perception which
you acknowledged. It might be perceived that in Northern Ireland
it is not taken as seriously as in England and Wales and you have
acknowledged that very fairly. Let us put it the other way round.
If you were to include disability with the same criteria of hostility
and hate, is that going to give you any more problems than including
homophobia? You say your perception is that disability is not
so big a problem as homophobia, but let us say you are wrong about
homophobia and it is just that they have been shouting louder.
Intrinsically what I am putting to you is that if there were no
difference in the difficulty level you would still have to take
the same precautions to ensure that people who were alleging that
this hatred was because of homophobia or disability were sound
and would be able to stand up in court. Is there any fundamental
difference between the two?
Mr Arbuthnot: I understand the
similarities you are drawing out, but I have to go back to thinking
that homophobia gives rise to violent attacks and perhaps there
is less clear-cut evidence that disability has a similar effect.
Q185 Chairman: Yes, the statistics
for homophobia, as we have had displayed to us today, are that
with a population of 1.5 million we are talking about 35 physical
assaults, which is a miniscule number compared for example with
sectarian ones which are not even recorded. Given what Ms Piggot
said about some of the people with disabilities having this hostility
shown to them constantly, daily and weekly and in a way one had
hoped that sort of attitude had gone out 20-odd years ago, but
it obviously has not, even if it half that figure, it does not
make it more compelling to deal with homophobia than it does with
disability, does it?
Mr Arbuthnot: I understand the
point you are making.
Chairman: However hard I try I can see
that I am not going to get your opinion. I hope I get marks for
trying.
Q186 Mr Clarke: I just wondered whether
I might be helpful to you but not too helpful to our guests inasmuch
as the neo-fascists, the far right, the extreme right, do not
consider the disabled to be anything other than victims of hate.
They take their teachings from groups such as November 11 and
some of Hitler's teachings where if you were gay, if you were
disabled, if you were of a different race, then you were not worthy,
you were worthless, therefore they hate you. That is not opportunism.
Do you accept that the neo-fascists and the right-wing groups
will hate people because of their sexuality, because of their
disability, because of their racial origins? On that basis surely
action should be taken?
Mr Arbuthnot: Yes and if that
hate manifests itself in Northern Ireland, then yes, I would agree
with you.
Q187 Reverend Smyth: Still on the
disability aspect, I have seen suggestions that in that case it
should also extend to the carers and relations. How far can you
legislate in such a situation, that a person who may be a victim
can then be extended to include carers, relatives and so on? It
opens a wide door, does it not?
Mr Arbuthnot: Yes, that would
take us into a much wider group of victims. I would assume that
where a carer is an integral part of an individual's life for
whatever reason then an assault on a carer would be very similar
if not the same as an assault on the individual. I am not sure
I can go much further than that.
Reverend Smyth: I was thinking about
legislation which has to cover once you open a door. It is part
of an integral family: if a person is attacked for race, for sectarianism
the whole family is attacked. That is why I am raising it so we
are clear in our thinking.
Q188 Mr Luke: May I briefly turn
to the issue of sentencing, which we were talking about briefly
earlier? In the consultation paper on the Order you suggest that
the maximum penalty for an offence could be exceeded by a certain
amount, say two years, if racial or sectarian aggravation were
proven. I think the rationale behind this was that it would more
effectively differentiate between aggravated and non-aggravated
crimes. I believe you are not progressing with that situation.
Can you give us the background as to why not?
Mr Strain: This was our earlier
consultation, the original one. I see your point. I thought you
meant the explanatory document. It was not a runner. The problem
with it was that unless you introduced the actual racial aggravation
at the beginning of the charge, you could not increase the envelope
for an extra two years because the defendant would not know what
case he had to answer. It was that the evidential burden had shifted
onto him and we dropped it and went with this proposal we have
now, which increases the penalties for all that class of offences,
whether racially aggravated or not, by two years to allow the
court to reflect the racial aggravation and they just generally
increase the sentence.
Q189 Mr Clarke: You have just said
that the Crime and Disorder Act 1998 was not a runner.
Mr Strain: No, that the Crime
and Disorder Act 1998 did not do what we had suggested in our
earlier consultation document. Are you referring to what Mr Luke
said?
Q190 Mr Clarke: Yes. One of the problems
for many people who have been the victims of hate crime is that
they do not believe that the law to date has protected them very
well, so they are a little bit under-enthusiastic about the new
law. If I were to mention to you the Protection from Harassment
(Northern Ireland) Order 1997, I would say to you that there has
been little evidence that it has been used, or at best you could
say that it has been under-used. For those communities which have
seen new laws brought into being without necessarily being put
into effect in the past, what practical differences are those
communities going to see post the introduction of the Criminal
Justice (Northern Ireland) Order 2004?
Mr Strain: I cannot comment in
relation to the harassment legislation; I just do not know. Certainly
in relation to something Mr Luke referred to, the Cambridge report,
it did say that it made quite a big difference in relation to
the target groups which were victims of racial and indeed now
sectarian attacks. We were greatly influenced by the Cambridge
report in the way we brought forward our legislation. The Cambridge
report actually recommends that the type of thing we are doing
is considered rather than this technical difficulty that if you
only put the racially aggravated offence on the indictment you
lose the whole offence and you do not get punished for anything.
Q191 Mr Clarke: I am still trying
to convince this community which has been harassed in the past
that this new Order will make any difference and it certainly
will not unless there is a commitment from the police, the prosecution
service and the courts to use the new powers which are given to
them. Can you give me some confidence that the government will
commit itself not just to putting in the new Order, but to reviewing
its operation and acting on inactivity by the police and the courts,
should that be the case?
Mr Arbuthnot: Yes, I think I can
give that reassurance and agree that putting the legislation in
place is only one part of the jigsaw. We have consulted very closely
with the police and the police welcome the legislation as it is
drafted and, as we have already heard, will be renewing its efforts
to address this type of violence. The enforcement is part of the
legislation and it will be important once the legislation, in
whatever shape or form it finishes up, comes into effect to publicise
it, to explain to local communities, to encourage local communities
to have the confidence to use the legislation, knowing that there
are more severe penalties for people who commit aggravated offences
against them. There is a range of initiatives which needs to be
put in place to ensure total effectiveness.
Q192 Mr Clarke: If we are going to
review success, we need to have something to measure that success
against. At the moment there is a lack of a robust reporting system
for those who believe they have been victims of hate crime. Could
I ask you about the multi-agency working group on recording and
monitoring of incidents motivated by crime? Could you update us
on your links and work with that group? Do you believe, as some
have said, and I have said, that there needs to be a victim-led
reporting system, so victims can make sure that their concerns
are recorded, so that crime can be measured against people's own
perceptions as to whether or not they are victims?
Mr Arbuthnot: The multi-agency
group to which you refer is being taken forward by my colleagues
in the Northern Ireland Office and they are in the process of
establishing and working with local safety committees set up in
the various areas to collect a variety of information relating
to racism and other types of aggravated offences. Through those
grassroots committees we shall get a full picture and I take your
point on board that including the views and experience of victims
as well would be an important part of that process and I shall
gladly pass that on.
Q193 Mr Clarke: May I turn very quickly
to restorative justice. We have already talked about severe sentencing
or increased sentences, but the Cambridge Institute of Criminology
also looked at the role restorative justice can play and education
can play in bringing the perpetrator and the victim together to
give the opportunity to apologise and to understand and share
experiences. What is your view in terms of what is being done
to allow robust restorative justice systems to be part of the
new Order's work?
Mr Arbuthnot: I would certainly
agree that restorative justice systems are part of the wider picture
to which I referred. We are currently piloting a youth conferencing
service in Belfast and in Fermanagh and Tyrone with a view to
rolling it out to all parts of Northern Ireland and it is quite
a legitimate part of that youth conferencing process that individuals
may be required to undertake some form of education relating to
racism or whatever. So I would agree with you that that is another
important aspect and it is something which is being taken forward
through the youth conferencing service as it develops.
Q194 Mr Pound: You rightly say that
the key to tackling racial incidents is action by the PSNI. If
we look at the figures for 2002-03 we swiftly discover that out
of 226 reported incidents there were seven prosecutions. What
do you think that tells us about the way in which this problem
is being addressed at the moment?
Mr Arbuthnot: Obviously we should
like to ensure that the law we have in place is the law the PSNI
feel comfortable with and are able to use so that the number of
prosecutions can ultimately increase.
Q195 Mr Pound: May I interrupt you
a second? What do you mean by "feel comfortable with"?
Do you think they feel it is sufficiently robust? Do you think
it is appropriate? Do you think there might actually be a resentment
within the PSNI of some of the—
Mr Arbuthnot: No, sorry, that
was not the implication of what I said.
Q196 Mr Pound: I am glad we can clear
that up.
Mr Arbuthnot: I was thinking in
terms of the robustness and effectiveness of legislation.
Q197 Mr Pound: Do you have any evidence
that there are aspects of the legislation which the prosecuting
officers are unhappy with?
Mr Arbuthnot: As far as I am aware
at present, we have the support of the PSNI on the present proposals.
Q198 Mr Pound: What do you think
could be done to improve the prosecution rate? Seven out of 226
is a rather terrifying headline figure, is it not?
Mr Arbuthnot: It is important,
in order for the legislation to become effective, that it is well
understood that officers are trained appropriately and that it
is effectively implemented.
Q199 Mr Pound: I should say for the
record that quite clearly I cannot make any generalisation out
of those cases because it is entirely possible that the best ordered
police service in the world could get a ratio like that in a particular
year. I am not saying anything other than that this is an indicative
series of statistics. What about community safety partnerships?
Do you think they have been successful, particularly in the area
of hate crime?
Mr Arbuthnot: Before I answer
that, it has just been drawn to my attention that of the 226 cases
to which you refer, not all are necessarily criminal incidents.
We may need to explore those figures in a bit more detail and
I do not have that knowledge in my head.
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