Amortización préstamos en moneda nacional

3.1.1 Aggravated criminal offences

The offences prescribed under ss. 28 to 32 of the Crime and Disorder Act 1998 create specific criminal offences aggravated by racial or religious hostility. These are more serious versions of pre-existing, or “basic”, offences. Throughout this report, we refer to the

aggravated offences as RRAOs (racially or religiously aggravated offences) to distinguish them from other offences where hostility based on a personal characteristic is treated as an aggravating factor at sentencing.

Section 28 of the CDA states:

(1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below 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.

31 Note that the Protection of Freedoms Act 2012 further amended the CDA to include racially and religiously aggravated versions of new stalking offences.

32 Section 145 makes the same basis for aggravation for any crime motivated or demonstrating racial or religious hostility.

33 Sentencing and Punishment of Offenders Act 2012, s. 65.

34 Maleiha Malik, ‘“Racist Crime”: Racially Aggravated Offences in the Crime and Disorder Act 1998 Part II’ 62(3) MLR 409.

Offences that can be aggravated under this provision encompass the following:

• racially or religiously aggravated assaults (malicious wounding or grievous bodily harm, actual bodily harm, and common assault);³⁵

• racially or religiously aggravated criminal damage (destroying or damaging property belonging to another);³⁶

• racially or religiously aggravated public order offences (fear or provocation of violence, intentional harassment, alarm or distress, or recklessly causing harassment, alarm or distress);³⁷ and

• racially or religiously aggravated harassment and stalking (including putting people in fear of violence).³⁸

Each of these offences attracts a higher penalty (see Table 1 below).

Table 1 Basic offences compared with aggravated offences³⁹ Maximum Penalty

Criminal Offence Basic Offence Aggravated Offence

Malicious wounding 5 years 7 years

Actual bodily harm 5 years 7 years

Common assault 6 months 2 years

Criminal damage 10 years 14 years

Fear or provocation of violence 6 months 2 years

Harassment, alarm or distress Fine of up to £1,000 Fine of up to £2,500 Causing intentional harassment, alarm or distress 6 months 2 years

Offence of harassment or stalking 51 weeks 2 years

Putting people in fear of violence and stalking involving fear of violence or serious alarm or distress

10 years 14 years

35 Crime and Disorder Act 1998, s. 29.

36 Crime and Disorder Act 1998, s. 30.

37 Crime and Disorder Act 1998, s. 31.

38 Crime and Disorder Act 1998, s. 32.

39 Table adapted (and amended to include new sentencing maxima for stalking offences) from Law Commission, Hate Crime:

Should the Current Offences be Extended? (Law Com No 348, 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf>

3.1.2 Penalty enhancement sentencing provisions

Sections 145 and 146 of the Criminal Justice Act 2003 set out provisions for when a judge must enhance the penalty of a defendant convicted of a crime aggravated by racial, religious, sexual orientation, disability or transgender hostility. Section 146 states:

(1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).

(2) Those circumstances are—

(a) that, 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—

(i) the sexual orientation (or presumed sexual orientation) of the victim, or (ii) a disability (or presumed disability) of the victim, or

(iii) the victim being (or being presumed to be) transgender, or (b) that the offence is motivated (wholly or partly)—

(i) by hostility towards persons who are of a particular sexual orientation, or (ii) by hostility towards persons who have a disability or a particular

disability, or

(iii) by hostility towards persons who are transgender.

(3) The court—

(a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and

(b) must state in open court that the offence was committed in such circumstances.

(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

Section 145 of the Act uses identical language to 146 and covers all criminal offences aggravated by racial or religious hostility that are not specified under ss. 28-32 of the CDA.⁴⁰ Both ss. 145 and 146 apply to any criminal offence and are applicable at sentencing only.

This means that only those offences covered by the CDA can be classified in criminal law as

“aggravated offences” (e.g. “racially aggravated assault”), while those covered by the sentencing provision will be recorded in law as the basic offence (e.g. an assault).

40 Though, as we will see later in this report, decisions as to when s. 145 or ss. 28-32 will apply can become highly complex (see Abenaa Owusu-Bempah and Mark Walters, ‘Racially aggravated offences: When does section 145 of the Criminal Justice Act 2003 apply?’ [2016] 2 Crim LR 116).

3.1.3 Hate speech offences

The third set of provisions, not covered in detail by this report, includes stirring up hatred provisions,⁴¹ which incorporates acts that are intended or are likely to stir up hatred by: using words or behaviour or displaying written material;⁴² publishing or distributing written

material;⁴³ publicly performing a play;⁴⁴ distributing, showing or playing a recording;⁴⁵ broadcasting or including programme in cable programme service;⁴⁶ or possessing racially inflammatory material.⁴⁷

The Football (Offences) Act 1991 also proscribes indecent and racialist chanting during football games. Section 3 of the Act states:

(1) It is an offence to [engage or take part in chanting of an indecent or racialist nature at a designated football match].

(2) For this purpose—

(a) “chanting” means the repeated uttering of any words or sounds [(whether alone or in concert with one or more others)]; and

(b) “of a racialist nature” means consisting of or including matter which is threatening, abusive or insulting to a person by reason of his colour, race, nationality (including citizenship) or ethnic or national origins.

Other statutes that may be of particular relevance to addressing hate crime-related offences, but which are not specifically prescribed in terms of identity-based hostility, include the Communications Act 2003, s. 127, which makes the improper use of a public electronic communications network an offence, and the Malicious Communications Act 1988, s. 1, which makes it an offence to send letters etc. with intent to cause distress or anxiety.⁴⁸ The following figure shows how different types of crime, aggravated by different forms of hostility, are likely to proceed through the criminal process, from arrest through to

sentencing.

41 Public Order Act 1986, ss. 18-23 and ss. 29B-29G.

42 Public Order Act 1986, s. 18 (for racial hatred) and s. 29B (for hatred based on religion or sexual orientation).

43 Public Order Act 1986, s. 19 (for racial hatred) and s. 29C (for hatred based on religion or sexual orientation).

44 Public Order Act 1986, s. 20 (for racial hatred) and s. 29D (for hatred based on religion or sexual orientation).

45 Public Order Act 1986, s. 21 (for racial hatred) and s. 29E (for hatred based on religion or sexual orientation).

46 Public Order Act 1986, s. 22 (for racial hatred) and s. 29F (for hatred based on religion or sexual orientation).

47 Public Order Act 1986, s. 23 (for racial hatred) and s. 29G (for hatred based on religion or sexual orientation).

48 See further Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf>

Figure 1: Legal remedies for hate crime (England and Wales)⁴⁹

49 Figure previously used in Mark A Walters and Rupert Brown with Susann Wiedlitzka, Causes and Motivations of Hate Crime (Research Report 102, EHRC 2016), co-designed with the Equality and Human Rights Commission

<https://www.equalityhumanrights.com/sites/default/files/research-report-102-causes-and-motivations-of-hate-crime.pdf>

3.1.4 Differences in victim categories and protection under hate crime legislation Within England and Wales, official data are collected by a number of criminal justice agencies on hate crimes based on race, religion, disability, sexual orientation and

transgender identity.⁵⁰ However, as we have observed, these five monitored categories are not equally protected under the three main legislative frameworks addressing hate crime (discussed above). The CDA, for example, only proscribes racial and religious aggravation, while the POA covers hatred based on race, religion and sexual orientation. The Law Commission for England and Wales has recently investigated whether the CDA should be extended to include the remaining monitored categories, as well as also examining whether the POA should be extended to cover the categories of disability and transgender identity.⁵¹ The Commission’s final report uncovered a number of practical problems associated with the legislative framework that require further investigation. The Commission recommended that in the absence of a full-scale review of the legislative framework for hate crime, those groups currently not protected under the CDA (i.e., sexual orientation, disability and transgender identity) should be included under ss. 28-32 of the Act (i.e. offences relating to assault, criminal damage, harassment and public order offences). However, in terms of the stirring up of hatred offences (i.e., hate speech offences) as set out under Part 3 and 3A of the POA, the Commission recommended that those characteristics currently not covered under the legislation (i.e. disability and transgender identity) should not be incorporated, due to the fact that the law is rarely enforced successfully for these types of offence. Furthermore, the Commission asserts that the problem of disablist and transphobic hate speech offences can be adequately dealt with under other legal provisions (primarily ss. 4-5, POA). ⁵²

The Commission has additionally recommended that the Sentencing Council provide formal sentencing guidance for hostility-based offending under the CDA and for enhanced

sentencing under the CJA (ss. 145-146).⁵³ Furthermore, the Commission recommended that all types of hate crime should be recorded on the Police National Computer and noted on the offender’s criminal record.⁵⁴ At the time of publishing this report, the Sentencing Council is yet to provide the recommended new guidance, while formal changes are yet to be made to the data collection process for offences covered by ss. 145 and 146 of the CJA (for further discussion on the criteria for including characteristics in law and in the sentencing guidelines see Appendix A).

50 Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf> Some institutions also monitor other characteristics such as subcultures by Greater Manchester Police: see e.g. ‘Hate Crime: Policy and Procedure’ (2014)

<http://www.gmp.police.uk/content/WebAttachments/A902DDDD4CD8149180257CED0050D768/$File/GMP%20Hate%20Crim e%20Policy%20January%202014%20updated%20May%202014.pdf> and misogyny hate crimes in Nottingham Police Service.

51 Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf>

52 Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf>

53 Bakalis asserts that this guidance should not be provided until a review of the aggravated offences and the CJA is carried out:

Chara Bakalis, ‘Legislating against hatred: the Law Commission's report on hate crime’ [2015] 3 Crim LR 192. We aim for this report to provide the required information that the Sentencing Council needs to amend their guidelines.

54 Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf>