APPENDIX 7
Memorandum submitted by the Department
of the Director of Public Prosecutions for Northern Ireland
The Director has asked me to reply.
I understand that the Committee wishes to:
1. explore the reasons for the reported increase
in crimes and incidents motivated by hatred within and between
the communities in Northern Ireland;
2. examine the effectiveness of measures
taken by Government and relevant agencies to tackle prejudice,
and to support the victims of such prejudice; and
3. to assess the effectiveness of the existing
law and proposed changes to that law.
While matters of law reform are for Ministers
in Parliament, the Director considers it appropriate that they
be afforded with his views as to the practical implications of
change.
Accordingly, he has commented upon the draft
Criminal Justice (Northern Ireland) Order 2004.
Clause 2 of the draft provides for an increase
in sentence for offences aggravated by hostility. If the offence
is aggravated by hostility, it is proposed that the courts shall
treat that fact as an aggravating factor (that is to say, a factor
that increases the seriousness of the offence) and shall state
in open court that the offence was so aggravated.
Clause 2(3) sets out the circumstances where
an offence is to be viewed as aggravated by hostility, which includes
the victim's membership (or presumed membership) of a racial group;
the victim's membership (or presumed membership) of a religious
group; the victim's membership (or presumed membership) of a sexual
orientation group; or that the offence is motivated (wholly or
partly) by hostility towards membership of a racial group based
on their membership of that group; members of a religious group
based on their membership of that group; or members of a sexual
orientation group based on their membership of that group.
Clause 4 provides for an increase of penalties
in relation to certain specified offences.
The Director considers that to seek to prosecute
race, homophobic, or sectarian crime by imposing upon the prosecution
a responsibility to prove beyond reasonable doubt additional elements
of a new aggravated offence, above and beyond what the prosecution
would otherwise be required to prove in ordinary cases is liable
to raise expectations in the mind of the public which cannot be
met. The difficulties which may arise in securing sufficient admissible
evidence to prove the requisite additional intent for such an
offence could result in a loss of public confidence where legislation
was not seen to be effective.
Accordingly, the Director favours a sentence
based approach rather than an offence based approach. In other
words a court should be entitled to take into account, when sentencing
in respect of an existing offence, a wide range of factors including
evidence of verbal comments or conduct arising at the scene, admissions
made during interview by police and any evidence given by the
defendant during the course of trial. However, it is important
to remember that, even where this approach is taken, the prosecution
will still be required to satisfy the court to the high standard
of beyond reasonable doubt that the admissible evidence demonstrates
that the offence was aggravated by hostility on grounds of either
race, religion or sexual orientation.
I would add that the Director has already in
place arrangements with police in pursuance of Article 5(l)(c)
of the Prosecution of Offences (Northern Ireland) Order 1972 to
ensure that offences arising out of or relating to incidents of
a sectarian or racial nature are reported to him with a view to
the initiating or continuing criminal proceedings, and, that certain
offences of a sexual nature are also required to be reported to
him.
In this regard, following consultation with
Mrs Gillespie, Assistant Chief Constable, Police Service of Northern
Ireland, the Director has been informed that police record the
perception of individuals, whether victims, witnesses or third
parties, as to whether an offence was motivated by racial, religious,
or homophobic considerations. The Director intends that if the
draft Order comes into legislative effect, where there is evidence
against an identifiable individual, that all such offences as
fall within Clauses 2, 3 and 4 of the draft Order will be reported
to him in pursuance of Article 5(3) of the Prosecution of Offences
(Northern Ireland) Order 1972. The Director intends to maintain
information in regard to cases in respect of which the prosecution
will seek to adduce evidence in pursuance of Clauses 2, 3 and
4 of the draft Order and the outcome of such cases.
26 March 2003
| 
