5. HATE CRIME STATISTICS
5.5 The lifecycle of a hate crime
Attrition in hate crime cases refers to the gradual reduction of hate crime cases as these are dealt with by different actors throughout the criminal justice system. This process starts with the number of hate crimes committed and reported to the authorities, and ends with the number of the successful applications of hate crime legislation. According to Burney and Rose, “‘[a]ttrition’ is a common feature within the criminal justice process, as potential
offences, charges and convictions make their way through the system’s many ‘gateways’”.125 Analysis of the most recent CSEW data showed that there were approximately 204,000 hate crimes per year (estimated by combined years March 2014 to year ending March 2016).126 Further analysis of data also found that 54% of respondents stated that the incident was reported to (or came to the attention of) the police.127 This suggests that approximately 110,160 hate crimes are reported to the police each year. The most recent police statistics recorded 62,518 hate crimes between 2015/16. If approximately 110,160 hate crimes are reported each year (based on this general time period), then comparing CSEW data with the police data suggests that only 57% of reported incidents are recorded as hate crimes.
Out of the number of hate crimes recorded by the police, the CPS went on to prosecute 15,442 cases, of which 12,846 resulted in a conviction.128 These numbers suggest that the CPS was unsuccessful in obtaining a conviction in 17% of the cases brought to court. Finally, the CPS recorded the announcement of sentencing uplifts in court as 33.8% of total hate crime convictions, which equates to 4,342 cases. Taking the data altogether, we can see that out of an approximate 110,160 reported hate crimes each year, just 4,342 offences (4%) resulted in conviction and a declared sentence uplift based on identity-based hostility. It is this number that represents the “justice gap” for hate crime.
125 Elizabeth Burney and Gerry Rose, Racist Offences: How is the Law Working? (Home Office Research Study 244, 2002) 25.
126 This represents an 8% decrease on previous figures, Hannah Corcoran and Kevin Smith, Hate Crime, England and Wales, 2015/16 (Statistical Bulletin 11/16, Home Office 2016)
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/559319/hate-crime-1516-hosb1116.pdf>
127 This represents a 6% increase in the number of respondents that stated they reported the incident to the police, Hannah Corcoran and Kevin Smith, Hate Crime, England and Wales, 2015/16 (Statistical Bulletin 11/16, Home Office 2016)
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/559319/hate-crime-1516-hosb1116.pdf>
128 Note that CPS data may not match precisely with police data time periods as some recorded hate crimes may take many months before the case comes to court.
We reiterate that this percentage does not represent the “conviction rate” for hate crime, but rather it is an estimate of how many hate crimes may be “dropping out” out the system. This number does not tell us the reasons why cases drop out. There are likely to be a myriad of explanations for the justice gap, including: issues relating to the way in which incidents are reported to the police; the quality of evidence available to officers; recording practices and investigation procedures; the systems used to determine charge and decision to prosecute;
factors affecting jury decision making; sentencing practices; and finally, the recording
mechanisms used post-sentence.129 These are issues which we go on to explore in the next two parts of this report.
The following infographics display a visual of the lifecycle of a hate crime based on race or ethnicity, religion or beliefs, sexual orientation, transgender identity, and disability.
The CSEW data estimate 104,000 hate crimes are committed each year targeting the race or ethnicity of a victim. The police recorded 49,419 hate crimes based on a victim’s race or ethnicity in 2015/16. The CPS prosecuted 12,295 hate crime cases related to race or ethnicity in the same year. This resulted in 10,337 (84%) successful convictions. The prosecution of 16% of hate crime cases based on race was therefore unsuccessful.
129 One reason noted in Burney and Rose’s study was explained by a police sergeant who stated that the drop out between the number of hate crimes that are recorded by police and the subsequent prosecutions are a result of police applying a lower standard of evidence to justify arrests, compared with the evidence necessary for a charge. Elizabeth Burney and Gerry Rose, Racist Offences: How is the Law Working? (Home Office Research Study 244, 2002) 53.
According to CPS data, in 35% of race-related hate crime cases sentencing uplifts were announced and recorded in court, an estimated 3,618.
In 2015/16, the police recorded 4,400 hate crimes that targeted victims for their religion or beliefs, The CSEW data estimate 31,000 religion-related hate crimes per year. The CPS indicated having prosecuted 737 cases in the same year, of which 583 (79%) resulted in a conviction. The prosecution of around 21% of hate crime cases based on religion or beliefs was unsuccessful. The CPS recorded 31.9%, an estimated 186 cases, where a sentencing uplift was announced and recorded in court.
The CSEW estimates around 27,000 sexual orientation hate crimes per year. The police recorded a total of 7,194 hate crimes based on sexual orientation in 2015/16. CPS statistics indicate that 1,384 cases were prosecuted and 1,151 convictions obtained. 17% of
prosecuted cases were unsuccessful. The CPS recorded that sentencing uplifts were announced in 38% of cases, estimating to about 437 cases.
The CSEW estimates an average of 67,000 cases of disability hate crime per year, which is a larger than the estimates for religion- and sexual orientation-based hate crime. In 2015/16, the police recorded 3,629 disability hate crimes. The CPS prosecuted 941 cases, of which 707 (75%) resulted in a successful conviction. Sentencing uplifts were announced and recorded in 11.9% of disability hate crime cases, estimated at approximately 84 cases, which suggests an additional limitation to the application of hate crime legislation in disability hate crime cases (further addressed in section 10).
No yearly CSEW-estimates are available for transgender identity hate crimes at this point;
however, in 2015/16, 858 hate crimes targeting transgender people were recorded by police.130 The CPS prosecuted 85 cases in the same year, with 68 (80%) successful convictions. CPS data indicate that sentencing uplifts were announced and recorded in 35.3% of transgender identity hate crime cases, estimated at 24 cases that received a sentence uplift.
130 A recent study found that found that 29 per cent of Trans respondents had experienced a physical assault motivated by anti-LGBT hostility over the previous 3 years; this was more than twice the rate reported by LGB respondents (12 per cent). Mark A Walters, Jennifer Paterson, Rupert Brown and Liz McDonnell, ‘Hate crimes against trans people: assessing emotions, behaviors and attitudes towards criminal justice agencies’ (2017) Journal of Interpersonal Violence DOI:
<https://doi.org/10.1177/0886260517715026>
Part B
Analysis and research findings
Part B: Analysis and research findings
There is now a comprehensive legislative and policy framework for hate crime in England and Wales. The impressive body of documentation for hate crime is unlikely to be rivalled anywhere else in the world.131 However, the extensive policy and legislative domain for hate crime does not automatically equate to an effective application of these policies and laws.
This study seeks to provide new information on how the law on the books is being applied in practice. It follows on from two other important reports on hate crime law. The first, a Home Office study published in 2002 by Burney and Rose, found that racially aggravated offences charged under the CDA (RAOs) only rarely appeared in courts, and that the majority of cases included public order and minor violence offences.132 Further, the study found that RAO charges were frequently contested (with offenders fearing the racist label and enhanced penalty), and were twice as likely to be committed to trial at the Crown Court compared to triable either-way basic offences. Magistrates and judges pointed to particular problems with the legislation, which included:
• The often marginal nature of the racist element in many cases;
• The inability to take racist evidence into account when potential RAOs were prosecuted in the basic form; and
• The reduction of charges to the basic form just before a trial.133
Over a decade later, a detailed 2014 Law Commission report points to continuing concerns relating to the application of law (including a lack of application of the sentencing provisions under s. 146 of the CJA), confusion in interpreting the CDA (e.g. conflation between
motivation and demonstration of hostility),134 and a failure to properly record and flag offences aggravated by sexual orientation, disability or transgender hostility.
Building upon these previous reports, this study examines the central (thematic) issues that were identified as being key to the successful application of hate crime laws in England and Wales by those individuals who use them most. We start this endeavour by examining the main processes involved in investigating and collating evidence for presentation in court, highlighting the need for good police-CPS relations and the importance of police identifying evidence of hostility early in the CJS process (section 6). In section 7, we move on to explore a number of problems with procedure that can arise during the prosecution of RRAOs, including the use of alternative charges and verdicts, and the potential for double convictions and charge bargaining. Section 7 also details the issues that occur during different modes of trial; whether some hate crimes are “over-charged”; and the use of special measures for complainants and witnesses. Section 8 then explores how the legislation is interpreted in the
131 See e.g. Organization for Security and Co-operation in Europe, Hate Crimes in the OSCE Region – Incidents and Responses: Annual Report for 2012 (OSCE 2013)
<http://tandis.odihr.pl/hcr2012/pdf/Hate_Crime_Report_full_version.pdf>
132 Elizabeth Burney and Gerry Rose, Racist Offences: How is the Law Working? (Home Office Research Study 244, 2002).
133 Elizabeth Burney and Gerry Rose, Racist Offences: How is the Law Working? (Home Office Research Study 244, 2002).
134 See for example, SH [2010] EWCA Crim 1931, [2011] 1 Cr App R 14. See also Mark A Walters, ‘Conceptualizing “hostility”
for hate crime law: minding “the minutiae” when interpreting section 28(1)(a) of the Crime and Disorder Act 1998’ (2014) 34(1) OJLS 47.
courtroom, focusing in particular on the interpretation of “hostility” and the confusion that this can sometimes give rise to. In section 9, we address sentencing approaches in hate crime cases, including the methods used by judges to calculate “uplift” for hostility. Finally, in section 10, we explore (separately) the barriers to successfully prosecuting disability hate crime cases, noting in particular the persistent “push back” amongst some judges to accept targeted abuse against disabled people as evidence of hostility. Where appropriate,
recommendations are provided to improve current practice. More substantial options for law reform are set out in Part C.