The dangerous absurdity of hate-crime laws
Giving harsher penalties to those who think a certain way is nothing short of punishing thought crime.
Last week, Greater Manchester Police (GMP) announced that they would start recording crimes committed against those pursuing alternative lifestyles or fashions, including ‘goths, emos, punks and metallers’, as hate crimes.
The announcement followed campaigning by the family of Sophie Lancaster, who died following a brutal attack against her and her boyfriend in 2007. The sentencing judge in that case described the attack against the young couple as a ‘hate crime’ because it appeared to have been motivated by the way Sophie and her boyfriend were dressed.
Reaction to the GMP’s announcement has been mixed. Many have welcomed the move as the logical extension of existing law, which requires the bias of the perpetrator to lead to harsher sentences. The Crime and Disorder Act 1998 allowed judges to pass harsher sentences for crimes carried out against an individual based on their membership of a given racial or religious group. The Criminal Justice Act 2003 expanded the remit of what could be considered a ‘hate crime’ by including crimes committed because of bias based on sexuality or disability, and also made harsher sentences for hate crimes mandatory. Although the announcement by the GMP will not necessarily lead to harsher sentences for crimes committed against members of ‘subcultures’, it may well mean that judges will be more alert to spotting potential bias in a defendant for the purposes of passing harsher sentences.
This makes the announcement by GMP deeply problematic. While GMP have, in the course of their announcement, identified a list of subcultures which they will recognise as potential victims for hate crimes, they say that the list is ‘not closed’. Announcements like this, which use such open language, create an environment in which any subculture, no matter how obscure, could potentially be a victim of hate crime. Who decides which subculture is worthy of protection? Judges? The police? On what basis do they decide? What if someone had their Star Trek DVDs strewn across the road in the course of a robbery. Would this constitute evidence that the victim was targeted because he or she was a Trekkie?
Or what about Jed Shirdan, who was kicked and stamped to death by two Goths in 2008 for being a chav? Or financier John Monckton who was murdered in his home for being rich? There is a bizarre double standard at the heart of officialdom’s attitude to hate crime. We live in an age where gyms can promote chav-bashing classes without anyone batting an eyelid. Bookmakers Paddy Power ran an advertising campaign in 2008 in which they boasted of their ability in ‘tranquilising chavs’ on racecourses. At a time when the law appears desperate to classify and protect certain identities, it seems that some identities are simply more worthy of protection than others.
It has become gospel since the passing of the Crime and Disorder Act 1998 that certain crimes could receive tougher penalties because of the perceived beliefs of the perpetrators. But even assuming that a court can establish that a crime was carried out because of the defendant’s hatred for a particular social group – and whether a court can ever effectively do so is a matter for debate – applying harsher penalties to those who think a certain way is nothing short of punishing thought crime. Hate crime law says that because a certain defendant thinks a certain way, they should receive a harsher penalty.
This has been justified in the past on the basis that certain crimes threaten social cohesion more than others. For example the ‘anti racist’ provisions of the Crime and Disorder Act 1998 were justified on the basis that a racist murder of a teenager may have a greater socially destabilising impact than other murders. But can we really say that the murder of an ‘emo’, a homosexual or someone in a wheelchair is any more ‘socially destabilising’ than the murder of anyone else?
The question of what drives an offender can rarely be the subject of compelling or conclusive evidence. Can we really say that all those who display evidence of bias or prejudice when committing a crime were in fact offending because of those prejudices? This is an enormously complex question. The law already requires that the prosecution proves, in relation to most offences, a ‘guilty mind’, but this is entirely different to attempting to establish, through criminal sentencing, what drove an individual to behave in a certain way.
The passing of the Criminal Justice Act 2003 and the Crime and Disorder Act 1998 mean that judges today feel more capable than ever before about sentencing on what previously had not been thought of as the domain of criminal evidence: a defendant’s attitudes and prejudices. The announcement by the GMP has propagated the dangerous assumption that certain crimes should be punished more harshly because of a defendant’s attitude or prejudice. Rather than attempting to apply these considerations to more and more subcultures, perhaps we should revisit this assumption and question its place in a legal system which prides itself on objectivity and equality before the law.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.
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