This article explains the law on disability hate crime in England as of October 2022. It was written by Olivia Hopwood, a law student, and verified and approved by a leading criminal law solicitor on behalf of BuDS. It is written mainly for professionals and practitioners, and some may find the language difficult to follow. If you need any help with this article, please contact us.
Section 66, Sentencing Act 2020
There is no aggravated offence of disability hate crime (DHC), but S. 66 of the Sentencing Act 2020 imposes a duty upon courts when considering the seriousness of an offence, to treat it as an aggravating factor that either:
- At the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on a disability (or presumed disability) of the victim; or
- The offence was motivated (wholly or partly) by hostility towards persons who have a disability or a particular disability.
In a case where a demonstration of hostility can be proved, there is no need also to prove motivation.
Definition Of Disability
For the purposes of s.66 SA 2020, “disability” means any physical or mental impairment. s.66 SA 2020 is also relevant to cases where the offender has assumed a person is disabled, whether or not that assumption is correct. The definition of disability in s.66 SA 2020 includes people living with HIV or AIDS. In some cases, disabilities can be masked or exacerbated by alcoholism and drug dependency. Some people have a combination of disabilities. Some disabilities are obvious, some are hidden. Some people may not wish to disclose the fact that they have a disability. Medical confirmation is not necessary to put a prosecutor on notice that a person might have a disability and may have been targeted because of it.
Hostility
Hostility is not defined in the Act. Consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, prejudice, unfriendliness, antagonism, resentment, and dislike. The words of the subsection require an indication by the offender of hostility towards the victim based on a disability. The demonstration of hostility must be nearly contemporaneous to the conduct element of the offence (at the time of the offence or immediately before or after). The demonstration of hostility is likely, in many cases, to be something different from and additional to the conduct element of the offence. Mere evidence of the commission of the substantive offence against a disabled victim is not sufficient.
Motivated By Hostility
The second limb of s.66 SA 2020 is concerned with the offender’s motivation, requiring proof that the substantive offence was wholly or partly motivated by hostility towards disabled persons. Motive can be established by evidence relating to what the defendant may have said or done on other occasions or prior to the current incident.
With reference to interpretation, it should be noted that section 28(1)(b) of the Crime and Disorder Act 1998, which refers to racial hostility, has been held to be wide enough to include hostility towards one member of such a group, since section 6(c) of the Interpretation Act 1978 provides that “words in the plural include the singular” unless the contrary intention appears, and no such contrary intention appears in the provision.
In addition, the circumstances include those where an offence is motivated by hostility towards a third party, based on the relevant characteristic, who is not present: see Taylor v DPP [2006] EWHC 1202 (Admin) which found that in order for the offence to be proved someone must have heard what was said. Accordingly, an offence committed against one person (or many persons) but motivated by hostility towards another person or persons on the basis of their perceived disability would seem to satisfy the statutory test.
Case Law
To view the case law relevant to s. 66 of the Sentencing Act 2020, click here.
Crown Prosecution Service Guidance
Proving An Offence Was Aggravated Within The Meaning Of s. 66 Of The Sentencing Act 2020
To view Crown Prosecution Service (CPS) guidance on proving whether an offence was aggravated within the meaning of s. 66 of the Sentencing Act 2020, and the evidence felt to be required in such circumstances, click here.
Common Features In Disability Hate Crime
CPS guidance lists a number of common features in disability hate crime, as follows:
- Incidents escalate in severity and frequency
- May have been previous incidents such as financial or sexual exploitation
- Opportunistic criminal offending becomes systematic and there is regular targeting, either of the individual victim of their family/friends or of other disabled people
- Perpetrators are often partners, family members, friends, carers, acquaintances or neighbours. Offending by persons with whom the disabled person is in a relationship may be complicated by emotional, physical and financial dependency and the need to believe a relationship is trusting and genuine, however dysfunctional
- Where perpetrators are partners or live with the disabled person and are either members of the same family or have been partners, the offence of controlling or coercive behaviour may apply
- Carers, whether employed family or friends, may control all or much of the disabled person’s finances. This provides the carer with opportunities to abuse, manipulate and steal from the disabled person.
- Number of common triggers for crime against disabled persons, for example: access or equipment requirements
- Multiple perpetrators are involved in incidents condoning and encouraging the main offender e.g., filming on their mobile phones
- Cruelty, humiliation and degrading treatment, often related to the nature of the disability
- Barriers to and negative experience of reporting to CJ agencies which leads to those believing they are not being taken seriously
- Disabled people have a tendency to report incidents to a third party rather than police
Issues For The Prosecutor To Address In Disability Hate Crimes
- How s.66 of the Sentencing Act 2020 does or does not apply to the circumstances of the case and give reasons for their decision.
- Please note Section 66 of the Sentencing Act 2020 considers the offence being aggravated by hostility. In this case hostility related to disability
- If s.66 SA 2020 does not apply, whether there is evidence of the offender targeting a disabled victim because of their perceived vulnerability, or causing greater harm to a disabled person.
- What, if any, special measures are appropriate – to be discussed with the witness. See the legal guidance on Special Measures.
- Any other support needs. See the CPS Support Guide and the legal guidance on Interpreters and the National Agreement.
- What ancillary order applications may be required. In particular, see the legal guidance on Restraining Orders – Section 5, Protection from Harassment Act 1997 and Criminal Behaviour Orders.
Additional Issues For Prosecutors To Address
Incident:
- Was it a sustained attack?
- Did it involve excessive violence?
- Was cruelty, humiliation or degradation involved?
- Was there any focus on the disability itself or disability aids? For example, language, gestures, gratuitous damage to hearing aid, crutches, wheelchair, scooter etc, blindfolding a profoundly deaf victim?
Perpetrators:
- Was hostility based on the victim’s disability demonstrated by the perpetrator?
- Did the offender target or cause harm to a victim who was in the circumstances vulnerable because of their disability? Although such evidence will not necessarily support a s.66 SA 2020 uplift, it will be relevant to sentence as an aggravating factor.
- Have there been any previous incidents involving the offender and hostility or targeted anti-social behaviour?
- If so, what was the nature and location of previous incidents?
- Have the incidents escalated in severity and frequency?
- Has opportunistic offending become systematic and regular targeting?
- What is the status of the offender – “friend”, paid or informal / family carer, acquaintance, relative, stranger?
- What was the role of any bystanders?
- Were there multiple perpetrators condoning and encouraging, taking photos/videos?
- What evidence is there to suggest this is not a disability hate crime?
Disability:
- What is the actual or perceived disability involved?
- Was the actual/perceived disability completely co-incidental to the offending?
Vulnerable Victims & Witnesses
The social model of disability recognises that many people with disabilities do not consider themselves to be “vulnerable” and may be offended by the use of that word to describe their position.
CPS guidance does not suggest that a disabled person is vulnerable per se. Where the guidance refers to a “vulnerable” victim, witness or person, it does so in the context of the person being vulnerable to a particular criminal offence in particular circumstances, or in the context of a relevant Sentencing Guideline or an application for special measures for a “vulnerable witness” under s16 of the Youth Justice and Criminal Evidence Act 1999.
Special measures can include giving evidence from behind a screen and giving evidence from a different room or location over video link.
Prosecutors may use the term “vulnerable” in these contexts in court.
Other vocabulary may be considered inappropriate by disabled people and prosecutors should avoid using potentially offensive language. For example, prosecutors should avoid saying:
- “Bullying” – this term is more commonly used in relation to the behaviour and experience of children and young people. The use of this word can understate the seriousness of incidents that involve intimidation, persecution, terror, fear and harassment i.e. behaviours amounting to criminal offences. Even “mere” queue barging, ridicule, mimicking and exclusion can cause harassment, alarm or distress, particularly if repeated.
- “Has a mental age of” – comparison of an adult person with a child is often considered to be demeaning and unhelpful. Better practice is a reference to the person’s level of social functioning and understanding.
- “Mate crime” – this refers to people with learning disabilities or mental health issues being “befriended” by people who then exploit them. The term ‘mate crime’ is used by some disability organisations within the disabled community to raise awareness of the issue. It is not CPS policy to use this term, as it is potentially confusing to people with learning disabilities. This can also be seen as ‘Cuckooing’ in some instances.
Sources & References
https://www.disabilityrightsuk.org/how-we-can-help/advice-and-information/disability-hate-crime
https://www.legislation.gov.uk/ukpga/2020/17/section/66
https://www.casemine.com/judgement/uk/5a8ff70f60d03e7f57ea6f29