Law Commission review of hate crime legislation in 2019

The Law Commission is conducting an extensive review of the adequacy of hate crime legislation during 2019. This project will consider the current range of specific offences and aggravating factors in sentencing decisions. It will also review the current range of protected characteristics covered by the legislation, identify gaps in the scope of protection in the criminal justice system in England and Wales and make recommendations for reform to promote a consistent approach.

The Law Commission project defines hate crimes as “acts of violence directed at people because of who they are” and will review whether the criminal law should provide protection for a broader range of characteristics (currently disability, transgender status, race, religion and sexual orientation). The project asks, by way of illustration, whether the legislation should provide protection in the criminal law for “sex or gender characteristics (with misogyny being a particular concern), age, physical characteristics, or membership of specific sub-cultures.”

Currently the legislative framework for hate crimes is described by the Law Commission as follows:

• The Public Order Act 1986 – specific offences for conduct that is likely to stir up hatred on grounds of race, or is intended to do so on grounds of religion or sexual orientation;
• The Crime and Disorder Act 1998 – ‘aggravated’ offences with longer sentences if someone commits one of a number of other criminal offences (eg assault or damage to property) and has demonstrated hostility or was motivated by hostility based on race or religion;
• The Criminal Justice Act 2003 – enhanced sentencing if an offence involves hostility that is motivated by any of the five protected characteristics;
• The Coroners and Justice Act 2009 – sentencing guidelines which a judge must follow, including whether an offence was motivated by or demonstrated hostility towards the victim based on their age, sex, gender identity (or presumed gender identity), disability (or presumed disability) or sexual orientation.

The terms of reference confirm that the Law Commission should ensure that “any recommendations comply with, and are conceptually informed by, human rights obligations, including under articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention on Human Rights. An earlier Law Commission report in 2014 on hate crime noted, for example, that any “new stirring up offences that might be created would need to respect article 10(2) and article 9” (freedom of religion and belief) of the ECHR. 

The Law Commission expects to report in 2020 and it will then be for the Government to decide whether to implement any proposed legislative changes.