Hate and Hostility

Hate and Hostility. Disability Hate Crime in the Criminal Justice System

© Stephen Brookes MBE. Co-ordinator - Disability Hate Crime network.

There is an inevitable fact in life – we get older, and with the ageing process we naturally become more physically frail. That frailty can become actual ‘disability’ for a large proportion of the population and this can create the potential for us to be targets of hostility, abuse and hate, even to the point of criminal actions.

It is important to recognise that there is no ‘legal’ definition of disability related hate crime. But, the Crown Prosecution Service, when prosecuting cases of ‘disability hate crime’ adopt the definition – ‘Any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a persons disability or perceived disability.’

Key charities, government departments and individuals all agree ‘The time for talking is past. The time for action is current’. It is now time to go further than we have so far to inform any still doubting public, private sectors, individuals, and of course ‘the media’ about the reality of the immense damage caused to victims of disability hate crime. All too often the word ‘vulnerable’ or term ‘tragic victim’ is used in reports of incidents relating to hostility, when older or disabled people are frequently not any more vulnerable in certain situations than non-disabled people. This all too frequently misused reporting has actually weakened rather than strengthened the acceptance of hate crime provisions for disabled people.

As key policy staff in the criminal justice system state, this approach is wrong. Indeed as currently constructed ‘hate’ and ‘vulnerability’ are constructed as opposites and, as a result, an urgent policy and practice review is now required to make sure disabled people get full recognition both within and outside the law that hostility and hatred exist and that where such crimes occur they are actioned effectively and are accounted for in official statistics.

Cases such as the terrible tragedy which befell Fiona Pilkington or any of the other appalling incidents which have hit the headlines have started to focus minds where abuse or hostility against disabled or older people is concerned. The term ‘Hate Crime’ is well established and recognised in the criminal justice system in so far as race, faith, gender, LGBT sectors is concerned. It has now, and at long last, begun to be acknowledged in the prosecution of incidents when motivated by hostility toward disabled people. And for those of us who are becoming less mobile or forgetful by age and illness, like myself, who are equally and frequently targeted in age/disability related hate crime this is an important step forward.The recent wide publicity given to the tragic ‘Pilkington’ case also shows what happens when the system in total (Police, social services, neighbours and even charities) fail to communicate on such cases when they know what is going on.

We are aware of wide definitions of disability through DDA 1995, allied to the UN convention relating to disabled people. But, in a legal scenario the expanding use of old terms which have ‘medical model’ connotations has created some confusion in the minds of older or disabled people as to what is recognised in terms of hate crime.To say someone ‘hates’ you because of who you are is a tricky call to make. Definitions become questionable, and it is easier to recognise hostility because of what you are.

In fact we must not make the mistake of seeing the confusion leading to a lack of reporting as an actual absence of hate crime or hostility towards disabled people. There is considerable evidence of hate crime in the lives of disabled people and in particular in the lives of people who have mental health service issues, but that confusion over what is or is not ‘hate’ makes reporting difficult.

All agencies supporting disabled or older people need to work through every pathway to stop hate crime by advising and informing interested parties groups and individual disabled or older people about the importance of reporting bias-motivated incidents and crime. We need to support this information by putting in place a hard-hitting, culturally relevant endorsement of the value of tolerance and understanding that can be disseminated through word, print and electronic means to diverse audiences.

We all recognise that those in all aspects of the Criminal Justice System along with other professionals who work with disabled or older people should train and be trained consistently to counsel and advise potential victims to recognise, understand and more importantly report threatening situations and to provide resolution and other coping skills to enable disabled people to deal effectively with bias-motivated behaviours. It is also important that the training does include people who are older or disabled – ‘nothing about us without us’ is a maxim which clearly applies, as to much is said by those who run ‘training by PowerPoint!’

Training materials should be published in different formats to reduce cultural barriers to reporting.The importance of reporting bias-related incidents and the support that is available for seeking redress of discriminatory actions cannot be over-emphasised, for without consistent and meaningful reports nothing can be done and tragic events such as the Brent Marin case or the appalling Pilkington affair will continue to blight our lives and fill our news outlets. Investing in prejudice reduction and violence prevention is vital to reducing the incidence of hate crime.

We must jointly ensure that communities, justice system agencies, social services, academic establishments and schools work together to create and maintain conditions in which prejudice gives way to tolerance and bias-motivated violence is reduced. However, hate is a strong term to use in this context. Although it conveys the outrage many feel for the offences committed against disabled people, in practice this can be too high a word to afford people a responsive criminal justice system.In one incident a disabled person said that ‘I was recipient of serious verbal abuse because I am a wheelchair user, but I get used to it. And anyway was it really hate or just the usual disability discrimination I get every day? So I didn’t report it…... because I know it could be tricky for me to be believed’.

In the publication ‘Getting Away with Murder’ (written by Katharine Quarmby at Scope in 2008) we saw cases of hostility displayed against disabled people in ways ranging from bullying and verbal abuse through to actual bodily harm, torture and murder. In the most serious offences reported in ‘Getting Away with Murder’ we are presented with details of 17 deaths attributable to ‘hate crime’. However, it is critically important to see that not all cases have such dramatic and appalling outcomes. Sometimes, the nature of a person’s disability makes it easier for the offender to commit the particular offence. This sometimes appears to make the victim “vulnerable”, an “easy target” and no further thought is given to the true issue of hostility. Essentially current evidence makes clear that disabled people are ‘just’ targeted for abuse and hostile actions which do not always have a physical outcome.

The UK Equality and Human Rights Commission in their work use the term ‘Motivated Crime’ in a way to describe ‘hate incidents’ and this is useful in going beyond the term ‘hate’ which is a very emotive term which is not clear to the victims of low key but often repeat forms of bullying and intimidation that disabled people experience.

The motivation to commit a crime may often take the form of targeting disabled people for their perceived vulnerability but at the same time hatred cannot be discounted from such targeted abuse. However, there is much evidence of discriminatory attitudes towards disabled or older people because to some it is felt that they have ‘lives not worth living or supporting’.

Negative attitudes to people need to be factored into the constructions of hate crime in British Law. Disabled or older people are often seen as likely to be judged unreliable witnesses by perpetrators of ‘hate crime’, as the murderer of Brent Martin is reported as saying: “I’m not going down for a Muppet”, which shows the basic contempt for the ability of disabled people to be viewed by the CJS with sympathy.

Discourse and literature review on disability related crime is not extensive. However, it could be argued that the visibility of impairment and the shift away from institutional living for some has created the potential for more frequent and repeated hate crime activity. Certainly the evidence available challenges any assumptions that the lowreporting and later response to disability hate crime results from an actual absence of hate crime against disabled people.

In terms of official evidence, the UK government do not collect data on disability-related hate crime. This is in part due to the absence of a specific offence flagged as disability hate crime, although we can easily see that burglary is more than twice as likely to happen to disabled or old people than younger non-disabled people as reliable and sound research findings from official sources is proffered from third sector campaigning organisations.

Mencap’s report ‘Living in Fear’ found that bullying was pervasive in the lives of people with learning disabilities. 90% of respondents stated they had been bullied in the previous 12 months, many in public contexts and 23% reported that they had been assaulted. Bullying however is not seen as a crime unless explicitly accompanied by a primary offence-assault, vandalism, affray, property offences.

Although interpreted broadly in terms of a policy understanding of hate crime and disabled people, the strict interpretation of hate crime is provided by section 146 of the Criminal Justice Act of 2003. This section makes provision for additional sentencing powers and imposed a duty upon courts to increase the sentence for any offence aggravated by hostility based on the victim’s disability (or presumed disability).

As we have said the term ‘hate’ is as stated a difficult concept, whereas ‘hostility’ is somewhat more understandable. However there is little evidence that a lower test or threshold is being applied in the case law. Indeed it is interesting that the use of hostility in CPS Guidance suggest a wider uncertainty as to the value of the term hate and hate crime. So what are seen as the motivations and perceptions that do get attached to aggravated crimes against disabled people? Indeed does hostility not get closer to notions of discrimination, and does vulnerability not point to a similar set of dynamics to discrimination? Unless we take the view that vulnerability, pity, tragedy are all stereotypical assumptions about disability which are very different to discrimination, prejudice, and of course ‘hostility’ then we are actually challenging the reality of disability ‘hate crime’ policy and law.

Notwithstanding the major issue of language discourses and disability ‘hate crime’, there is evidence of localised good practice in ‘hate crime’ policy responses however. Some local authorities have funded organisations in part to raise awareness of disability hate crime. In Coventry, the West Midlands Police, Crown Prosecution Service and Victim Support are working together in part to rise awareness of hate crime ‘hotspots’ which is likely to provide greater insights, mapping and hopefully prevention of hate crime. There are however no available evaluations on hand to say what is effective in hate crime reduction.

The accurate and up-to-date reporting of hate crime is a central concern of disabled people and organisations close to issues of hate crime. Advocacy Groups, Partnership Boards, and Community Safety Partnerships must work together to produce a single report that explores the experience of hate crime. It is imperative that advocacy groups provide more substantive information telling real life stories, whilst Community Safety Partnerships offer more facts and figures.

In reality, reporting refers to the process of crime reporting that follows a given (perceived) hate crime incident or incident of crime not yet connected to motivations of hate. And this can be better served when disabled people talk to other disabled people in correct settings such as disability or independent living centres

As is noted in some areas‘… such centres will be a venue where a member of the public can report hate crime in non-policing environment. This can be helped by a large number of voluntary partner and statutory agencies which have agreed to become centres’.

Under-reporting is not simply a phenomenon rooted in disabled peoples’ personal reticence in reporting for fear their story will not be believed. Under-reporting is systemic to the criminal justice systembecause all too often allegations of often serious abuse and hatred are worn down by the judicial process. Overall, the picture on reporting is a depressing one, with dramatic under-reporting and a sense that even if reported, many disabled people feel they are not taken seriously.Victims and witnesses who do not attend Court unexpectedly often fear reprisals, particularly when the offender is their carer!They also often fear that they won’t be believed, perhaps becausethey have a learning disability! Resolution needs to be seen in terms of more harsh sentences.

Definitions of disability provide a way of looking beyond the individual for causes of discrimination and hate or targeted crime. That the status of an offence which is instigated by perceived vulnerability of the victim rather than the offender being motivated by hostility does not seem justifiable. This may have some impact on the different definitions used by statutory bodies and disabled people themselves. The Criminal Justice System does seem to consider some disabled people to be more ‘vulnerable’.

Lack of clarity about disability and why disabled people may be subject to hate or targeted crime needs further research. Statutory bodies need to gain a better understanding of the context of discrimination in which disabled people live. Statutory bodies need to ensure that they take on board the perspective of targeted people, including disabled people working within the structures of the Criminal Justice System and through improved partnership working.

The conclusion to this lengthy piece is comparatively short. Statutory bodies need to get closer to older or disabled people, and this means going to places where people are and actively engage with and include them in solutions, rather than simply inviting people to meetingsto be told about matters which so deeply affect them.