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Prosecuting hate crime: procedural issues and the future of the aggravated offences

In 2012, the Ministry of Justice asked the Law Commission to examine the case for extending the racially and religiously aggravated offences in the Crime and Disorder Act 1998, so that they also cover disability, sexual orientation and transgender identity. The terms of reference for the project were narrow, and did not include an examination of whether the existing offences are in need of reform. The Commission recommended that before a final decision is taken as to whether the offences should be extended, a full-scale review of the operation of the existing offences should be carried out. This paper contends that, in determining the future of the aggravated offences, consideration should be given to the procedural difficulties that can be encountered during the prosecution stage of the criminal process. The paper highlights a number of significant procedural problems that arise from the structure of the existing aggravated offences. These problems are largely related to alternative charges, whereby the prosecution charge both the aggravated offence and the lesser offence encompassed within it, and alternative verdicts, whereby the jury can convict of the lesser offence if the aggravated element is not proven. This paper argues that the procedural problems, coupled with a failure to properly understand the offences, can lead, and have led, to unfair outcomes. If the offences cannot be prosecuted effectively, they become little more than an empty gesture to those affected by hate crime, and this may be counterproductive. Procedural problems also put defendants at risk of wrongful conviction. The paper concludes that the preferred way forward would be to repeal the racially and religiously aggravated offences and rely on sentencing legislation to deal with hostility-based offending.