Preparing cases for prosecution: Collating evidence to prove hostility

We asked all interviewees what were the most common types of evidence they had come across to prove hostility in court, as well as asking them what common evidential factors they felt had increased or decreased the likelihood of a successful prosecution. We also

examined over 100 reported cases to explore the types of evidence that are most commonly used to prove hate crimes. This analysis revealed that, in almost every case, hostility

(whether motivated or demonstrated), was evidenced at trial by prejudiced language. This was nearly always as part of an aggressive verbal statement expressed by the defendant.

Participants across interviewee cohorts concurred with this finding, often stating that the most cogent form of evidence to prove their case was witness testimony of verbalised hostility expressed during the commission of an offence:

“Well it’s invariably what they say … I’ve never done a case where it’s been based on anything else. I’ve never done a case, for instance, where there’s been an attack and somebody’s gone back to the person’s house and found hate material and therefore made the assumption or made the association that the attack was as a result of that. It’s always inevitably as a result of the words used at or about the time of the incident. So it’s witness evidence either in the form of what the complainant says ... Or … in the form of what the complainant says or what the witnesses hear or what somebody videos. That being by far, as we all know, the most common thing now …” (Interview Crown Court Judge 04)

Another CPS lawyer explained:

“For most of the offences, certainly with race and religion, homophobia, transphobia and disability, the first level of evidence you often get is the defendant will normally say

something. When he commits either the offence it’s the words itself, or he’ll say something on top of what he’s doing …” (Interview CPS 03)

This does not mean that verbal hostility is the only evidence that can prove the hostility element of a hate crime, whether prosecuted as a RRAO or considered at sentencing. As Baroness Hale stated in Rogers, “[t]he [aggravated] offences do not require particular words to be used: the necessary hostility could be demonstrated in other ways, such as wearing swastikas or singing certain songs.”¹³⁵ Indeed, actions can often speak louder than words. In the case of Graham, the appellants had ripped out the victim’s (a Rastafarian) dreadlock and brandished this as a trophy. The trial judge stated:

“The [additional] racial element … is what you did with his dreadlocks afterwards. It was like tearing the turban from a Sikh or a crucifix from a Christian. That is the severe element in this case and something that I take on board very strongly.”¹³⁶

Whether by words or actions, evidence of hostility is most often presented at court through the testimony of witnesses. A complaint supported by independent eyewitnesses was described as making a case “pretty straightforward” (Interview Independent Barrister 15).

Other legal practitioners noted:

“Well, it varies. If it’s a guilty plea for example, then the evidence would be effectively what the prosecution outline on the basis of the witness’s statements to the police. If it’s a trial, then it would be what the witness themselves says in the witness box.” (Interview District Judge 07)

“Well, the common element is obviously witness statements taken from those [who] were present at the alleged racially aggravated matters, so commonly it’s the complainant or the arresting officers who are dealing with a defendant … either as part of the main incident or during the arrest process. And it’s during that process that something may be said which may come under the relevant legislation.” (Interview Independent Barrister 03) Four police officers indicated that convictions are more difficult to secure in “one-on-one”

cases, where one word stands against the other. Four CPS prosecutors, eight barristers, three Crown Court judges and two District Judges noted that multiple eyewitness testimony and especially independent witnesses are an important factor in securing a conviction in hate crime cases:

135 [2007] UKHL 8 [13].

136 [2004] EWCA Crim 2762 [11]. Note the two assailants appealed, arguing that the attack was not racially motivated. Fulford J for the appeal panel seems to have relied on verbal abuse as evidence, rather than this behaviour. He did not disagree with the trial judge, but stated: “the proper basis of sentence was that, whilst Mr Senior was being dragged along the floor and one of his dreadlocks was being pulled out, one of the group said, ‘Get the fucking nigger’ and, ‘Get the wog’.”

“The stronger the evidence is, the more likely there’ll be a conviction … So if the incident is witnessed by a number of people, none of whom know the complainant, and they all hear what the defendant said, then it is more likely they’ll secure a conviction. And that’s true of any crime.” (Interview Independent Barrister 15)

“Obviously the more independent witnesses you have the better. And generally speaking the longer the incident in which the alleged language or actions have taken place, the higher your chances of getting a conviction. Perfectly sensibly, because the more you say something, the longer your aggression lasts, the less likely it is that you’re acting merely in temper rather than some rather more powerful and rather less explicable motivation.”

(Interview Crown Court Judge 03)

There are, however, some problems associated with gathering witness statements necessary in hate crime cases. Several interviewees identified the need for improved questioning during the interview, especially when gathering evidence of motivation of hostility, which was only very rarely presented to the CPS. One CPS lawyer noted that, “if you haven’t had a demonstration of hostility at the time of the commission of the offence, then the interview can be the critical point in trying to delve into the motivation a person might have” (Interview CPS 21). This was especially important for disability hate crime cases, where verbal slurs used against victims are less common (see further section 10.1). Although the failure to gather evidence of motivation was seen as a frustration for some CPS

interviewees, others acknowledged that while “‘motivation’ is a bit more difficult to find … the police are being really encouraged in interviews to deal with motivation, to get as much information from the defendant or the suspect so that we can use that to put together [the case]” (Interview CPS 02). (We return to the issue of demonstrations and motivations of hostility in section 8.1).

Next to witness statements, there are a number of additional ways in which hate crimes can be proved in court, including securing audio and video recording of the incident, with multiple interviewee cohorts explaining that such recordings are helpful to secure a conviction. This may include CCTV, body-worn cameras, mobile phone footage, or 999 calls:

“Well any re-playable evidence is always effective. So body-worn video footage or CCTV, or as in my recent case, the 999 call. If there wasn’t that 999 call, I’m pretty confident that we would have been acquitted.” (Interview Independent Barrister 02)

“Usually if it’s a public order or a violence case, if you can catch it on CCTV, you can secure your conviction. Because there’s no way out.” (Interview Independent Barrister 15) Five District Judges and one Crown Court judge, however, pointed out that CCTV footage has its limitations, as it often only provides video footage and rarely picks up audio:

“CCTV isn’t necessarily very helpful because on many occasions the CCTV doesn’t have any audio – it’s simply visual. So you can’t hear what’s being said at the time of an

incident. And so it’s very dependent on what the witness actually says.” (Interview District Judge 07)

In addition, getting the footage to court can sometimes prove problematic, with one District Judge pointing out:

“[We] still have problems with the fact that the evidence is out there on CCTV or body worn video and we still can’t get it into the court room because the administration between the police and the prosecution just sometimes cannot do what seems to be very simple, which is to get piece of evidence from point A to point B. That’s not rocket science and we still fail.” (Interview District Judge 03)

While these forms of evidence were capable of proving identity-based hostilities, it was emphasised that, without a sound recording of verbal slurs, proving a demonstration of hostility beyond reasonable doubt could via video footage was extraordinarily difficult. This was most apparent in relation to disability hate crime cases.

Five CPS prosecutors, one barrister and three District Judges also noted that the defendant’s prior record and bad character can be an important factor in cases where the offender was motivated by hostility:

“[W]hen you look at a record, you know if that person is prone to behaving in a certain way, so you can field this as someone that targets people who are vulnerable, people with disabilities for example; or this is a person who’s got issues with transgender people or gay people … Just like you can see on a record that this is someone who’s racist. And it’s very helpful for the Crown when we have things like bail applications where we want to apply for a criminal behaviour order, it’s helpful to pick up a record of previous convictions and know exactly what kind of an offender you’re dealing with.” (Interview CPS 12)

“Bad character – that can be helpful if they’ve got previous convictions. Then it shows a propensity towards this type of thinking and behaviour, particularly if we’re looking for motivation; how we can see that they are a person who has used that type of language before, has demonstrated hostility with that group before, then yes … we’re looking at previous convictions of bad character – that arises quite often as well.” (Interview CPS 16) Accessing this information is, however, problematic, as the hostility element will not be noted on a perpetrator’s record where the offence is aggravated by sexual orientation, disability or transgender identity hostility (under CJA provisions) (further discussed in section 11.1.4):

“And it would also make it easier to recognise … At the moment you wouldn’t, for example, necessarily see an uplift on sentence recorded on somebody’s PNC record … so when they come before the court for further offences you wouldn’t necessarily know that the burglary, the theft, the assault that’s on their record was an offence that was dealt with by the court that received an aggravated or an increased and uplifted sentence. If they had committed an offence under the Crime and Disorder Act, then very clearly it’s on the record that that’s what it is. So from a practical point of view, things like that make a difference to how they’re dealt with in the future … If they commit further offences then it’s clear … that they’ve got a previous history of it”. (Interview CPS 15)

Other ways of collating sufficient evidence to prove the hostility element of hate crimes included the identification of painted signs, leaflets, letters, and other written documentation, some of which can be helpful in proving an affiliation with right-wing hate groups:

“But also then the documents that were sent were adorned with pictures of the intended explosive devices – the incendiary devices – and also with symbols such as White Power

… And there was another right wing organisation, which I’m afraid I can’t remember the name of it, but they’d effectively drawn that logo, and there were some swastikas and that sort of thing. So the racial motive was very clear.” (Interview Independent Barrister 07) CPS prosecutors and independent barristers also mentioned social media and websites with links to racist organisations as powerful evidence to prove the hostility element of the offence and the motivation of the defendant:

“[B]ut he’d made the mistake and the police had got screen shots of him posting, you know, about the EDL on Facebook … so we knew that was obviously … He’d taken a photograph of it and posted it with those comments, so he couldn’t argue ostensibly that he didn’t know about it.” (Interview CPS 14)

“And we also in that case used evidence from websites that were run by the one of the defendants, which included the Combat 18 website, and also various Death or Glory, various white supremacist websites, that he was responsible for in the UK.” (Interview Independent Barrister 07)

Another three barristers referred to text messages as important pieces of evidence in hate crime cases, either showing conversations about an intended target (Interview Independent Barrister 07) or containing slurs that prove the hostility element of the case:

“The subject of the text messages … the racial aggravation was references to the complainant’s new partner, who was black. And making various racial slurs about him, references to him being a ‘monkey’ and things like that. So there was clear evidence of racial hostility within the text messages. It was unambiguous in that case.” (Interview Independent Barrister 08)

One prosecuting barrister also mentioned proving hostility through making the connection to either “trigger events”¹³⁷ or drawing inferences from culturally, ethnically or linguistically differences between defendants and complainants, which historically are known to have hostile relationships. The interviewee noted that:

“[W]e were able to prove that I suppose you would say it was almost a matter of really history, but contemporaneous events, the trigger for what happened is that there’d been a Turkish air strike that had killed a number of Kurdish women and children, that’s what had

137 Possible “trigger events” include domestic or international terrorism attacks or political events, such as Brexit, which often contribute to a spike in the recording of both online and offline hate crime. See for example Emma Hanes and Stephen Machin,

‘Hate crime in the wake of terror attacks: evidence from 7/7 and 9/11’ (2014) 30(3) Journal of Contemporary Criminal Justice 247 and Bryan D Byers and James A Jones, ‘The impact of the terrorist attacks of 9/11 on anti-Islamic hate crime’ (2007) 5(1) Journal of Ethnicity in Criminal Justice 43.

motivated the defendants to … commit the firebombing …” (Interview Independent Barrister 07)

Our analyses showed that there are many ways in which evidence of hostility can be presented to the court, but that in the main these methods are all used to show that the defendant uttered a slur during the commission of the offence. Nonetheless, there are numerous other ways in which hostility can be evidenced in court. Both the police and the CPS must think beyond the common verbalised epithets which are commonly used to prove hate crime if the CJS is to successfully address those incidents where no verbalised

demonstration of hostility is committed. It is particularly important for the CPS to communicate back to the police the types of evidence that can help to prove hostility successfully in more complex cases. Loretta Trickett’s recent research study on hate crime training for police officers similarly concludes that there need to be more examples provided by the CPS about cases where hostility has been proven and the factors involved.¹³⁸ Below we provide a non-exhaustive list of types of evidence that the police and CPS identified as helping them to successfully prosecute hate crimes. As we will see further below, the successful collation of these forms of evidence often rests on the formation of a strong relationship between the police and CPS.

RECOMMENDATION

The following list highlights the most common forms of evidence that practitioners either used or considered to be important to prove hate crime cases. We recommend that investigators use this as a (non-exhaustive) checklist during the investigation and charging stages of the criminal process:¹³⁹

1. Complainant and witness testimony of verbal slurs and prejudiced epithets;

2. Police-worn cameras and mobile phone footage of verbal slurs;

3. 999 recordings of incidents that include words spoken in the background;

4. Background information of the accused, including: past convictions, membership of hate-based groups, websites, and blogs;

5. Previous conversations with associates evidencing identity-based prejudices; and police questioning which may elicit hostilities;

6. Previous convictions for hate-based offences;

7. Possession of hate-based signs and symbols;

8. Social media posts displaying hate speech;

9. Text messages expressing identity-based hostility;

10. Possession of leaflets, letters or other written documents with hate-content;

11. Conduct that specifically targets the identity/perceived vulnerability of the victim (e.g.

tipping someone out of a wheel chair or purposefully pulling off a religious headscarf);

12. Contemporaneity with trigger events or in the context of historically hostile relationships.

138 Loretta Trickett with Paul Hamilton, Hate Crime Training of Police Officers in Nottingham: A Critical Review (Nottingham Law School, Nottingham Trent University 2016) 198 <http://irep.ntu.ac.uk/id/eprint/28089/7/5642Trickett.pdf>

139 Note that some of these forms of evidence may constitute bad character evidence and/or hearsay evidence, and would not necessarily be admissible in court. See Part 11 of the Criminal Justice Act 2003.

Further types of evidence should be added to the list which have been shown by investigators to be useful in prosecuting hate crimes.

6.2 GATHERING EVIDENCE: FAILURE TO IDENTIFY AND INVESTIGATE