CHAPTER 9: Aggravation
117. In recent years two superstructures have
been (or sought to be) erected on the foundation of Part III of
the Public Order Act 1986. In its original from, it created offences
of inciting racial hatred through a variety of means, oral, written,
broadcast etc. In 1998, the Crime and Disorder Act selected certain
"ordinary" offences, including Part III of the 1986
Act, not so much for amendment of their substance as for a statutory
provision for aggravation and an increase in the maximum penalties
which a court could impose where it is alleged and proved that
there is an element of racial aggravation in the defendant's conduct.
118. While the purpose is laudable, this
technique raises some problems:
(i) Because this has been achieved by the means
of drafting by reference, it is necessary to look up a number
of other criminal statutes in order to understand what has been
changed and what the law really is;
(ii) when that has been done it will become apparent
that the 1998 Act did not affect sentencing in the most serious
cases, such as inflicting grievous bodily harm or wounding under
s.18 of the Offences against the Person Act 1861, or causing criminal
damage (arson, usually) with intent to endanger life under s.
1 of the Criminal Damage Act 1981. This was because these offences
already carry a maximum sentence of life imprisonment so that
no increase for aggravating circumstances could, statutorily,
make any difference to the judge's powers;
(iii) where an indictment is brought under Part
III of the 1986 Act, it is one of the issues of fact for the jury
whether they are satisfied that a racial motive was involved (but
see paragraph 124 below);
(iv) whether or not the sentencing powers have
been increased, for the aggravated offence the jury is automatically
entitled—and should be so directed—to bring in a verdict
of guilty on the unaggravated offence if they are not satisfied
that the aggravating element has been proved, but are so satisfied
as to the basic offence.
119. The second superstructural addition appeared
in the 2001 Anti-Terrorism, Crime and Security Bill and Act when
the same offences as had been identified in the 1998 Act were
given aggravated status, this time if the aggravation was religiously
motivated. Some of this took effect as s.39 of the 2001 Act. There
have been some convictions under these offences but not so far
for activities resulting in severe sentences.
120. The inclusion of aggravation as part of
the offence does not, in itself, assist the prosecution or its
presentation. On the face of it, it just complicates matters,
particularly for the prosecution. No reason was advanced in
1998 or 2001 why this element should form part of the issues of
fact on which a jury must decide, rather than simply take its
place among the aggravating (or mitigating) factors which must
be considered by the sentencer. The whole sphere of correct sentencing
is deeply important in all criminal law. Any excess can be corrected
on appeal and, in some cases, inadequate sentences referred for
review. Both Magistrates and Crown Court judges now receive extensive
training, with refresher courses at regular intervals. The Court
of Appeal deals with appeals against sentence. Most matters concerning
sentencing are reflected in a large Encyclopaedia of Sentencing,
frequently updated and available in every Crown Court. The Magistrates'
Courts maintain their own Sentencing Guidelines, which are also
frequently updated.
121. There is nothing unique about racial or
religious aggravation except what the two Acts have created. As
already noted, legislation has not sought to intervene in offences
which carry a life sentence, since the Crown courts are already
equipped to pass sentences which reflect any aggravating factor,
whether it be race, religion or anything else. Many other aspects
of any offence whatsoever, and not just the 1998/2001 Acts' lists,
are capable of containing aggravating factors which, on conviction,
will lead to a possible enhancement in the sentence. Aggravating
circumstances vary considerably, will have appeared in the material
before the court and, subject to a social inquiry report, may
lead to a higher than normal sentence. The victim may have been
an elderly person, a child or in some other way vulnerable: the
defendant may have been in a position of trust of which he took
advantage. These factors enter into sentencing decisions day by
day; they are the reverse of mitigating factors of every variety
which are urged on a court by defence counsel and in reports of
all sorts on the particular defendant. Such distortions as these
affect the Statute Law when one particular aggravating factor
is picked out by Parliament. In the Powers of Criminal Courts
(Sentencing) Act 2000, s. 153 deals with increases in sentence
for racial aggravation. It has been amended already to include
such increases to take account of s.39 of the Anti-Terrorism Act
2001. It does not, of course, mean that other aggravating factors
are to be disregarded but it may be thought undesirable to give
statutory force to some of the list of factors while omitting
mention of any others.
122. Recent examples of the guidelines issued
by the Court of Appeal, in conjunction with the Sentencing Advisory
Panel, appeared in the decision on R v. Milberry and others.[121]
It concerned sentencing for rape, an offence which carries a maximum
of life imprisonment. There was already guidance on the starting
points in the sentencing scale within this maximum, but the Court,
with the Panel's advice, has now updated and clarified these,
and in particular has set out the aggravating factors which might
be relevant. These specifically, among six others, include "racially
aggravated rape and other cases where the victim has been targeted
because of his or her membership of a vulnerable community, for
example, homophobic rape". Later in 2002[122],
a similar exercise was carried out by the Court of Appeal in relation
to burglary. Whilst the guidance was designed to reduce the number
of short sentences for this offence, one of the listed aggravating
factors which could counteract this advice is a racial motivation.
A third example is an initiative by the DPP to treat all homophobically-based
crimes as carrying aggravating implications which should be addressed
in the presentation of evidence, with a view to alerting the sentencer
to the possibility of enhancing the sentence on a conviction[123].
123. We note that the Criminal Justice Bill,
currently before Parliament, proposes, in Part 12, to establish
a Sentencing Guidelines Council, in addition to the Panel, to
set sentencing guidelines for all criminal courts.
124. We believe that the enactment of these laws
creating aggravated offences has positive disadvantages. Since
the racial or religious motivation is part of the prosecution
case on which the jury must be satisfied so as to be sure, they
are entitled to bring in an alternative conviction of the lesser,
unaggravated, offence. This applies to s. 39 of the 2001 Act which
concerns religious aggravation, but is equally applicable to aggravated
offences under the 1998 Act (albeit that this is outside our terms
of reference). Even if approval is given to current proposals
to allow a defendant's bad character, in the form of previous
convictions, to be disclosed to the jury, it seems most improbable
that, in a trial for this type of offence, the judge would permit
material of this sort to be put in evidence: the prejudicial effect
of previous convictions for racially or religiously motivated
crime must be greater than its probative value, since such motivation
is at the heart of the issues in the trial. Evidence of a predisposition
to this sort of behaviour must be most damaging to the defence.
The judge, of course, knows the defendant's record but, if the
jury only convict of the unaggravated offence, the
one factor which then cannot be taken into account in sentencing
is the motivation.
125. In both the Crime and Disorder Act 1998
and the Anti-Terrorism etc Act 2001 maximum penalties were increased
for convictions in aggravated cases. This was done to mark the
heinous nature of the offences when racially or religiously aggravated,
but in effect it ignores the system of Sentencing Guidelines.
It would be feasible, and much simpler, to increase the maximum
sentences for all offences in Part III of the 1986 Act. Now that
sentencing guidelines are well established and understood, there
cannot be objection to an increase in the maximum sentences for
the whole gamut of offences or, at least, of violence, public
order, criminal damage, abuse, harassment and threats. Excessive
penalties can be corrected on appeal and the Attorney-General
has, or could be given, the power to refer inadequate sentences
to the Court of Appeal. Such References have often, in recent
times, provided the opportunity for guidelines to be spelt out
even if the particular defendant does not have his sentence increased.
A message
126. The racial hatred provisions of Part III
of the 1986 Act do not seem to have been used against more than
a few of the perceived offenders. It may be that, as the Bishop
of Oxford said in relation to the 2001 legislation[124],
the 1986 Act was intended to have a declaratory purpose and a
deterrent effect. There have, however, been only 61 prosecutions,
leading to 42 convictions since 1988. Evidence presented to us
suggests that not much credibility is given to this Act. To the
extent that members of Muslim communities are protected under
it—and there must be factual circumstances where they are—the
Home Office witnesses thought there is under-reporting[125].
The DPP said the same[126].
The Act may have been successful in deterring far more offences
than were actually prosecuted.
127. Parliament and the courts—in the
latter case assisted by the prosecuting authorities in their selection
of cases to prosecute—have for some time been in the process
of sending out messages. The Home Office minister in charge of
the Public Order Bill 1986 said: "We wish Part III to be
effective and an important safeguard against racial hatred".[127]
In relation to the same Act, with its amendments in 1998, the
DPP said to us in evidence: "...the sending of a very strong
message by the legislature to get through to a lot of people is
very important and hopefully will lessen the number of offences"[128].
For its part, the Court of Appeal sends out its message in the
form of judgements containing guidelines (see above for examples),
sometimes reaching the front pages of the national newspapers.
As noted earlier, the DPP referred to the dozen or twenty cases
on incitement to racial hatred brought in a year. He said "...
all of these will be reported at the very least locally probably
on the front page of the local paper… It must assist in sending
a pretty strong message if the magistrates or the Crown Court
judge attach some fairly strong words to their sentencing remarks
about this sort of behaviour in this particular city." Evidence
submitted to us makes it plain that the message has indeed
been received: some extremists with racial hatred as their agenda
have been keeping to the right side of the line by presenting
their views as being based on religious grounds. It should however
be added that the Home Secretary has said "I do not want
gesturism"[129].
128. So far as concerns incitement to racial
or religious hatred, however, the message transmitted by Parliament
is far from transparent. In relation to aggravated offences, the
racially or religiously motivated assailant has been told that,
if he restricts himself to some less serious form of the offences
listed above, he should realise that he faces the prospect of
a more severe sentence on conviction. He has heard nothing from
Parliament about the most serious offences and he may not read
the Sentencing Guidelines. The "signal" for which several
witnesses asked is far from clear and is certainly not comprehensive.
We repeat that there are now, and may arise in the future,
more categories of victim in addition to racial and religious
minorities who would welcome a more comprehensive approach to
the identification of the vulnerable, and recognition that the
courts have the power to punish offences against such persons
with a more severe penalty. Such victims might then be encouraged
more frequently to report incidents to the police.
129. The police have said that they have some
difficulty in deciding whether a crime appears to have been committed
and, if so, whether they need to make investigations which might
lead to a charge of an aggravated offence. One expressed concern
relates to identifying what is or is not fair comment[130].
The other problem which they face is that, upon receipt of a complaint
about some extremist material attacking the complainant's faith,
there might well be a route to prosecute under public order legislation,
but the maximum penalty does not reflect the level of hurt inflicted[131].
One approach, therefore, might be as set out in paragraph 125
above, simply to increase the maximum sentences for a wide range
of offences in this area.
130. As the law now stands there would then have
to be consequential amendments to Powers of Criminal Courts (Sentencing)
Act 2000 and to the list of arrestable offences in the Police
and Criminal Evidence Act 1984. In their oral evidence, the Home
Office drew attention to the need to "make the distinction
… between incitement to violence, which is a crime in itself,
and the specific area of incitement to hatred, hatred not being
a crime, so it is a very specific, narrower range of behaviour
that we are talking about which falls between on one side incitement
to crime and on the other aggravated offences"[132].
That is exactly the point made above: we do not think it has received
anything like the attention it deserves.
121 The Times 11 December 2002 Back
122
The Times 20 December 2002 Back
123
Volume II, QQ601-3 at page 217 Back
124
HL Hansard, 21 Nov. 2001, col. 1229 Back
125
Volume II, QQ 74/75 at page 21 Back
126
Volume II, QQ 584 & 585 at pages 214 & 215 Back
127
HC Hansard, Standing Committee G, 25 March 1986, col.887 Back
128
Volume II, Q596 at page 216 Back
129
HC Hansard 19 November 2001, Col 35 Back
130
Volume II, Q173 at page 42 Back
131
Volume II, Q147 at page 37 Back
132
Volume II, Q76 at page 21 Back
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