The Law on Hate Crime Today: Are current prosecutions for Hate Crime offences insulting?

1. The Law on Hate Crime Today Are current prosecutions for Hate Crime offences insulting? STEP, DUNGANNON 07th AUGUST 2013

2. The Law on Hate Crime Today • The term “Hate Crime” is misleading. ‘Hate’ is not really the issue, it has more to do with discrimination. • BUT key issue under the law is “Hostility”. • There is currently no definition of “Hate Crime” in legislation (Statute). • There are however two key pieces of legislation in NI: • Public Order (NI) Order 1987; • Criminal Justice NI (No.2) Order 2004;

3. (i) Public Order (NI) Order 1987 [For England and Wales see Public Order Act 1986 (POA 1986)] • The Public Order (Northern Ireland) Order 1987 creates a number of substantive hate crime offences with regard to religious belief, colour, race, nationality, ethnic or national origins. (2004 Order to include sexual orientation and disability.) • For an offence to be committed under the provisions of the 1987 Order, there has to be one of the following: it has to be ‘threatening, abusive or insulting’, and it has to be intended to, or likely in all the circumstances to stir up hatred. • Note - A person will not be guilty of such an offence if he did not intend his words or behaviour, or the written material, to be threatening, abusive or insulting and was not aware that they might be.

4. (ii) Criminal Justice NI (No.2) Order 2004 [For England & Wales see Crime and Disorder Act 1998 (CDA 1998)] • This Act covers “offences aggravated by hostility”. If the perpetrator (Defendant) in committing the offence demonstrates or was motivated by hostility on the grounds of race, religion, sexual orientation or disability (or presumed by the Defendant) that offence becomes “Aggravated.” • An Aggravated Offence is seen as more serious because of the context of the crime and usually attracts a higher sentence as a result. • Examples of basic offences that can be aggravated in this way are assault, criminal damage, and certain public order offences involving threatening, abusive or insulting conduct, harassment or stalking, and putting people in fear of violence.

5. Hatred is defined as meaning hatred against a group of persons in Northern Ireland defined by reference to religious belief, colour, race, nationality or ethnic or national origins, sexual orientation or disability. Meaning of “Hatred”

6. The Public Prosecution Service (“PPS”) and Police when using the term “Hate Crime” are not generally referring to the aforementioned statutes. In recent times the Police, Prosecution and Judicial authorities have adopted a general broad definition of hate crime. This is a ‘perception-based definition’ which was adopted primarily for recording of offences purposes. Why is the term Hate Crime used?

7. The PPS and other Criminal Justice Agencies adopt the following definition: “Any incident which constitutes a criminal offence perceived by the victim, or any other person, to be motivated by prejudice or hate towards a person’s race, religion, sexual orientation or disability.’’ This is the 'perception-based approach' which has generally been accepted in recent years in relation to the definition of hate crime, as set out in the MacPherson report arising from the murder of Stephen Lawrence. This is known as the “Lawrence”/“MacPherson” definition. The Perception Based Definition of Hate Crime

8. The Lawrence Definition is wider than the Statutory Definitions This definition is wider that statute definition: Covers all 5 'protected categories‘: Race, Religion, Sexual Orientation, Disability; (v) Transgender * Perceived by victim (or any other person) to be motivated by hostility or prejudice. Remember CJO (NO.2) NI 2004 requires proof of hostility – demonstrated or motivated by.

9. Recorded Hate Crime Stats (Home Office) • According to the Home Office, in the year 2011 to 2012, crimes that were recorded by police as hate crimes represented around 1% of all recorded Crimes. • In 2011 to 2012, there were 43,748 crimes recorded by police as hate crimes. These were broken down across the five protected groups as follows:  race - 82%  sexual orientation - 10%  religion - 4%  disability - 4%  transgender identity - 1%.

10. Recorded Hate Crime Stats (NI) • Institute for Conflict Research, based in Belfast, compiled figures which show: • 13,655 hate motivated incidents were reported to the police in the last five years. • That includes everything from cases such as assaults through to criminal damage and name-calling. • The report found that out of almost 14,000 complaints only 12 cases were successfully prosecuted.

11. The legal definitions and Lawrence definitions are not the same. What is considered/recorded as a hate crime may not be so in law. There is no distinct hate crime legislation or offences. The law focuses on the perpetrator’s mindset = hard to prove. Burden of Proof – Beyond reasonable doubt can be difficult to overcome. There may be no witnesses. Witness testimony can be conflicting or contradictory. Why are so few hate crimes successfully prosecuted?

12. The John Terry Case is the most high-profile criminal trial of a racially aggravated offence in recent times. UK Perspective Case Study –JOHN TERRY

13. On 23rd October 2011 Terry was playing for Chelsea in a televised match against West London rivals QPR. He was clearly seen by television footage swearing and shouting vebally abuse. In particular he called Anton Ferdinand (a mixed-race English player) a: “Fxxxxxx Black Cxxx” http://www.theguardian.com/football/video/2011/oct/24/john-terry-anton-ferdinand-video Terry was subsequently charged with a racially aggravated offence Contrary to Section 31(1)(c) CDA 1998. Facts of the Terry Case

14. (Tues) 01.11.11 - Police confirm formal investigation. (Mon) 28.11.11 – Investigations under way and confirm Terry was interviewed under caution. (Thurs) 01.12.11 – File passed to prosecutors. The CPS to consider findings of the 5wk police investigation. (Wed) 21.12.11 – CPS confirm Terry will be charged with racially abusing Ferdinand. 1st Court date before West London Magistrates' Court on February 1, 2012. (Wed) 01.02.12 – Not Guilty plea entered and court date is set for 9 July. (Fri) 13.07.12 – Terry is cleared at Westminster Magistrates' Court. Time-Line of Events

15. “On 23rd October 2011 at Loftus Road Stadium, London W12 you used threatening, abusive or insulting words or behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress which was racially aggravated in accordance with section 28 of the Crime and Disorder Act 1998. Contrary to section 31 (1) (c) of the Crime and Disorder Act 1998.” The Charge – Terry’s Indictment

16. Terry claimed that he was merely repeating words already spoken by Ferdinand. He used these words by way of robust denial of what Ferdinand alleged he has said. There was doubt as to what Ferdinand said and when he and Terry had a verbal altercation(s). A view from the outside of the case would suggest that there was confusion around the circumstances in which Terry used the words. This would have created a doubt in the case as to prevent the burden of proof (“beyond reasonable doubt”) being satisfied. Terry’s Defence

17. “Even with all the help the court has received from television footage, expert lip readers, witnesses and indeed counsel, it is impossible to be sure exactly what were the words spoken by Mr Terry at the relevant time.” “It is a crucial fact that nobody has given evidence that they heard what Mr Terry said or more importantly how he said it. He has given effectively the same account throughout.” “Nobody has been able to show that he is lying. The lip readers do not provide evidence that categorically contradicts his account.”“I have assessed John Terry as a credible witness.” Judicial Decision in Terry’s Case

18. “Weighing all the evidence together, I think it is highly unlikely that Mr Ferdinand accused Mr Terry on the pitch of calling him a black cXXX. However I accept that it is possible that Mr Terry believed at the time, and believes now, that such an accusation was made.” “Mr Cole gives corroborating (although far from compelling corroborating) evidence.” “In those circumstances, there being a doubt, the only verdict the court can record is one of not guilty.” Judicial Decision in Terry’s Case Continued

19. Fictional Case of Pedro Da Costa The PSNI ask you for your opinion on issues in this case: INFORMATION PROVIDED VIA 999 CALL • Pedro is black he is from Cape Verde (and holds a Portuguese passport.) • He was attacked in Dungannon by group of local youths. They were wearing hoodies and halloween masks. • Pedro thinks one may have shouted “Get down Nxxxxx!” before he was punched and kicked to the ground. INFORMATION PROVIDED BY POLICE • All bar one of the group gave a no comment interview. This one said he did not know who punched or kicked Pedro but did see punches and kicks thrown. He accepted he used the Nxxxxx word.

20. NEW INFORMATION • Police believe all of the youths may be black. The youths may also be Portuguese. • Further witness reports state that they heard the words “Get down now” shouted but no racist language used. • Pedro does not wish to give evidence and wants to withdraw his complaint. He also tells Police he is afraid of reprisals. • Upon further questioning the youths state that they are rap music fans and regularly use the nxxxxx word as part of youth culture. • Patrick a white Dungannon native was also attacked. Patrick claims he was called a “filthy gypsy.”

21. Recent Developments • The Scottish Executive in 2009 extended legislation to cover transgender as protected group. • Manchester Police have in recent months widened hate crime definition (ie Lawrence type) to cover Punks, Goths an Emo groupings. • The Law Commission in England and Wales, under Commissioner Professor David Ormerod QC is currently consulting on extending the law on hate crime to cover sexual orientation, transgender identity and disability.

22. Talking Point Are current prosecutions for Hate Crime offences insulting?