Racially and Religiously Aggravated Offences Flashcards
Q: What is a racial or religiously aggravated offence? What does it do to a sentence?
A crime which is motivated by hatred or hostility towards a person’s personal characteristics may be considered to be aggravated in this way. The offender may then receive a sentence that is closer to the maximum tariff than what we would originally have received.
D cannot be sentenced to anything above the specified maximum sentence, no matter how aggravated!
Q: What types of offences can be racially or religiously aggravated?
Crime and Disorder Act 1998 sets out a number of existing offences which may become racially or religiously aggravated. These specially aggravated versions are subject to higher maximum sentences than the ordinary basic versions.
What are the 4 categories of offences which can be R or R aggravated in this way?
- Assaults
- Common Assault (s39 CJA) increases from summary only with 6-month max to triable either way offence max 2 years
- ABH (s47 OAPA) increases from 5 years max to 7 years max
- S20 GBH (OAPA) increases from 5 years max to 7 years max - Public Order
- S4 (POA) increases from summary offence with 6-month max to triable either way offence with max 2 years
- S4A (POA) increases from summary offence with 6-month max to triable either way offence with max 2 years
- S5 (POA) remains summary only, but has a higher maximum fine - Harassment and stalking (PHA)
- Sentences increase to a maximum of 14 years - Simple criminal damage: increases from 10 years to 14 years
Q: What happens to the sentence when offences already have a maximum sentence?
Offences which already have a max sentence of life (eg: s18 and aggravated criminal damage) do not need to have a special racially aggravated version because any racial or religious hostility can be taken into account as an aggravating factor in the usual way. A sentence up to and including life may be given.
Q: What needs to happen before the R or R element can be considered?
Basic ordinary offence needs to have been committed, then aggravating factors will be considered.
Q: Does the 1998 Act cover other protected characteristics?
It is only racial or religious hostility which is currently covered by the CDA 1998- it does not deal with other protected characteristics eg: disability, gender identity etc…
Q: What is the law on racially or religiously aggravated offences?
S28 Crime and Disorder Act 1998
(1) An offence is racially or religiously aggravated if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
Q: What is a ‘racial group’?
S28(4) 1998 Act- “Racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
Term ‘travellers’ is problematic. Travellers who identify as the Gypsy community are more likely to be considered by the court as an ethnic group- no clear case law.
If someone refers to themselves as an ‘Irish traveller’ or some other nationality of traveller, the nationality element should bring them within the definition of racial group.
Q: Are ‘immigrants’ and ‘foreigners’ in a racial group?
It may be enough. It indicates that the victim is non-British and is therefore a reference to ethnicity.
Q: What is a ‘religious group’?
S28(5) “Religious group” means a group of persons defined by reference to religious belief or lack of religious belief.
This definition is different to the one in the Equality Act and does not cover beliefs such as veganism.
Q: What is the difference between (a) and (b)?
(1)(a)- requires the prosecution to prove an outward demonstration of hostility. This is an objective test so it does not matter about D’s subjective intent or motivation. D only needs to demonstrate hostility.
(1)(b)- does not require any outward demonstrate of hostility, instead it requires proof of D’s subjective motivation. This motivation is often hard to prove.
Q: What are the elements of the offence under s28(1)(a)?
Demonstration of hostility which comes within an immediate timeframe of the basic offence being committed which is towards the victim and is based on V’s membership or presumed membership of a racial or religious group. Motivation of the defendant is irrelevant.
Q: How is ‘hostility’ defined?
Not defined in the Act. There is no standard legal definition.
CPS guidance states ‘ill-will, spite or contempt’. Implies a degree of animosity to be shown. It will be a question of fact in each case whether hostility has been demonstrated.
Q: How can someone ‘demonstrate’ hostility?
It will often involve words or gestures. However, it could be demonstrated by wearing insignia like a swastika or by singing certain songs.
Q: Is V’s own perception about hostility relevant?
V’s own perception about whether there has been hostility is not relevant.
