Disability Hate Crime - Guidance on the distinction between vulnerability and hostility in the context of crimes committed against disabled people
Published: 17 March 2010
Important
This additional guidance should be read in conjunction with theCPS Policy for Prosecuting Cases of Disability Hate Crime, the CPS Guidance on Prosecuting Cases of Disability Hate Crime (both of which were published in 2007) and the speech made by the then DPP, Sir Ken MacDonald QC in October 2008 (Annex A).
Introduction
This guidance deals with crimes committed directly against disabled people, but it should also, where relevant, be read in the context of crimes committed against people who work with or are connected with disabled people.
Not every crime committed against a disabled person is a disability hate crime for the purposes of s.146 Criminal Justice Act 2003, but many more are than are currently being identified by police or prosecutors.
Although the vulnerability of a victim is an aggravating factor leading to enhanced sentences in any event, where there is an extra factor of hostility based on disability, it is important that this is identified and the court invited to apply the provisions of s.146 so that the offence is properly dealt with for what it is - a hate crime.
Setting the Standard
In October 2008, the former DPP, Sir Ken MacDonald QC gave a speech to the Bar Council in which he set out CPS expectations as to how disability hate crime should be dealt with by prosecutors (see Annex A).
This was against a background of concerns, shared by the then DPP, that prosecutors were setting the threshold too high for disability hate crime (the requirements were for evidence of hostility, not hatred) and that the way in which the label "vulnerable" was being applied to disabled people had the effect that "vulnerability" was becoming
"an innate, unchanging and unchangeable characteristic of disabled people. We are one step away from making the assumption that disabled people should expect to be attacked because of who they are."
"I am on record as saying that it is my sense that disability hate crime is very widespread. I have said that it is my view that at the lower end of the spectrum there is a vast amount not being picked up. I have also expressed the view that the more serious disability hate crimes are not always being prosecuted as they should be. This is a scar on the conscience of criminal justice. And all bodies and all institutions involved in the delivery of justice, including my own, share the responsibility."
The approach set out by Sir Ken MacDonald has been endorsed and further built upon by the present Director, Keir Starmer QC, who, in January 2010, said in a BBC interview
"I think we haven't collectively picked them [disability hate crimes] up and investigated and prosecuted them in the way we should".
Hostility
In offences of incitement to racial and religious hatred the threshold for prosecution is set deliberately high (hatred) because these offences impact on the right to free speech.
Section 146 Criminal Justice Act 2003 (CJA 03) however, which provides for sentences to be increased for aggravation related to disability or sexual orientation, does not require evidence of hatred, but of hostility. (Annex B). This lower threshold for prosecution is also deliberately set because of the significant impact hate crime (see Annex C) has on the victim and on the community.
In the absence of a precise legal definition of hostility, consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike.
In cases involving criminal offences committed against disabled people, hostility is not always explicit and evidenced by the use of clear and crude language. Prosecutors need to examine all the surrounding circumstances to ensure they have a proper understanding of the offence and the context in which it has been committed.
For example, an incident which, on its own, does not appear to be linked to hostility based on disability, may take on a different perspective when it is shown to be part of a pattern of similar incidents involving the offender and/or his associates against a particular disabled person - such as the disabled victim's house being the only one in the road that is repeatedly targeted for criminal damage.
Equally, evidence of previous history of targeting other disabled people or evidence from other witnesses of an offender's prejudicial attitudes, can support a finding that an offence is a disability hate crime.
It is important to remember that, for the purposes of section 146 (2) CJA 03, it is immaterial whether or not the offender's hostility is also based on any other factor. For example, where a wheelchair user is verbally abused by a passenger for causing the train to be delayed whilst ramps are sought, it is immaterial that the main reason for the passenger's anger is the fact of the delay.
Obviously, not all crimes against disabled people are based on hostility towards their disability. In some cases the fact of a disability may be completely unrelated to the commission of the offence. For example, when the offender is unaware of the victim's disability.
In other cases, the fact of disability may appear to be merely coincidental. For example, when a wheelchair user's cleaner steals from her handbag.
But where a person is targeted to be the victim of an offence because of their disability, prosecutors must consider the issue of hostility.
Vulnerability
A disabled person is not vulnerable/easy target per se. It is the particular situation in which they may find themselves and which is then exploited that makes them vulnerable to be targeted for some types of criminal offences.
For example, just because someone is a wheelchair user does not make them vulnerable/easy target to de-fraud. It may however make them an easier option for someone looking to steal a handbag in the street.
It can be simpler, more intuitive, to proceed on the basis of vulnerability but an inappropriate focus on vulnerability risks enhancing an already negative image of disabled people as inherently "weak", "easy targets" and "dependent" requiring society's protection.
Instead, the focus ought to be on enforcing the victim's right to justice and scrutinising the offender's behaviour, prejudices and hostility so that the case is properly investigated and prosecuted for what it is.
Some years ago, in domestic violence cases, the focus was on the victim's behaviour; why did she stay? She could/should just leave. When the dynamics of domestic violence became better and more widely understood by the criminal justice system, the focus shifted to the offender's behaviour, holding him accountable for his actions, and not the victim.
This is the perspective now required in cases involving disabled people. Care is therefore needed both in the analysis of the offence and its context and in the language used by prosecutors.
Other than, for example, in the context of section 16 Youth Justice and Criminal Evidence Act 1999, prosecutors should not generally describe disabled people (as opposed to their situation) as "vulnerable" because this conflates the situation with the person. (See further, below, for a brief explanation of the social model of disability.)
Hostility and Vulnerability
When the nature of a person's disability makes it easier for the offender to commit a particular offence, police and prosecutors often focus on the victim being "vulnerable", an "easy target" and no further thought is given to the issue of hostility. This approach is wrong.
As can be seen from the paragraphs above, these two factors are not mutually exclusive. The vulnerable situation, within which a disabled person may find themselves, can provide the opportunity for an offender to demonstrate their hostility based on disability. Investigation can reveal evidence both of opportunism and hostility.
Where both vulnerability and hostility exist, both should be drawn to the attention of the court.
Targeting a particular person to be the victim of an offence, because they are black or gay or disabled is often, but not always, a clear indication of hostility (unfriendliness, ill-will etc) based on race, sexual orientation or disability. Seeing the particular disabled person as an easy target for a particular criminal offence, does not alter this. The victim is still being targeted specifically because of their disability.
It is almost axiomatic that victims of crime often happen to be the easiest target available to the offender at the time. Offenders do not usually pick hard targets. They tend not to pick the hardest property to burgle or the toughest person to assault. They tend to assess the risk to themselves, of being caught or injured, and select the person who they perceive poses the least risk.
Targeting the smallest or drunkest or least mobile person to assault or rob, does not automatically remove the element of potential hostility, if the principal criterion for selection is the fact that someone is, for example, black or gay or disabled.
Prosecutors must therefore explore fully the surrounding context of an offence committed against a disabled person, so that the true nature of the offence can be put before the court.
There will be cases in which there is no other reasonable explanation, other than that the offender's hostility was based on disability. This is particularly so in cases of abuse, violence or other offensive conduct as these offences tend to carry inbuilt within them the demonstration of hostility. For that hostility to be based on disability is but a short evidential step in many cases.
In other cases the question may be asked: what other explanation can there be? Let the defendant give his explanation and let the court decide.
Courts are entitled to draw a reasonable inference that hostility based on disability was the whole or partial motivating factor.
Common factors in disability hate crime cases
An overview of disability hate crimes reveals a common trend of extra factors, in addition to the offence itself, such as:
· there have usually been previous incidents;
· opportunistic criminal offences become systematic and regular targeting, either of the individual victim or of their family/friends, or of other disabled people;
· perpetrators are often "friends", carers, acquaintances, neighbours etc.;
· incidents escalate in severity and frequency;
· multiple perpetrators are involved in incidents condoning and encouraging the main offender(s) - often filming on their mobile phones and sending pictures to friends/social networking sites, YouTube etc.;
· false accusations of the victim being a paedophile or "grass";
· sustained attacks, excessive violence;
· cruelty, humiliation, degrading treatment, often related to the nature of the disability for example blindfolding someone who is profoundly deaf, destroying mobility aids etc.
Common erroneous assumptions in disability hate crime cases
It can't be disability hate crime because:
· the offender is the victim's carer;
· the offender is disabled too;
· the offender has assaulted other people and they weren't disabled;
· the victim was just in the wrong place at the wrong time;
· the victim isn't in fact disabled;
· the offender was motivated by drink and anger;
None of these factors rules out a disability hate crime. Erroneous assumptions can lead to prosecutors overlooking or misinterpreting information / evidence that is before them, or failing to look for that evidence.
Identifying Disability
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.
For example, where the victim of an offence is a local "eccentric" known to talk to himself, shout at people, dress and behave strangely - those factors, in themselves, neither point towards nor away from the possibility that he was targeted for being or perceived to be disabled.
Again, it is important that prosecutors fully explore the surrounding circumstances to an offence.
Difference, is often a significant indicator in hate crimes, whether based on race, religion, sexual orientation or disability.
Prosecuting "minor" offences - the public interest factors
Apparently minor incidents of mimicry or name calling and harassment on the street or at home may not seem important, but the impact on the disabled victim and on the disabled community can be significant.
Additionally, research from a number of sources consistently shows that incidents of low level criminal behaviour against disabled people tend to increase in severity and frequency unless intercepted at an early stage.
Prosecutors will be familiar with the public interest factors in favour of prosecution, set out in the Code for Crown Prosecutors. These include where the prosecution would have a significant positive impact on maintaining community confidence and where there are grounds for believing that the offence is likely to be continued or repeated.
It is important to act at an early stage: