Select Committee on Religious Offences in England and Wales First Report

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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