HomeInsightsLaw Commission announces recommendations to reform hate crime legislation while protecting freedom of expression

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The Commission explains that the term ‘hate crime’ refers to existing criminal offences (such as assault, harassment or criminal damage) where the victim is targeted on the basis of hostility towards one or more protected characteristics (race, religion, disability, sexual orientation, transgender identity).  There are two ways that the law currently treats hate crimes as more serious than other offences:

  • aggravated offences: separate versions of existing criminal offences, including assault, harassment, and criminal damage, that carry higher maximum penalties than the base offence; and
  • enhanced sentencing: applies to other existing criminal offences, and requires the sentence to be increased, but within the existing maximum available.

Aggravated offences currently only apply where there is racial or religious hostility. Hostility on grounds of sexual orientation, disability and transgender identity is covered by enhanced sentencing only, meaning that offences involving hostility towards these characteristics cannot receive the same maximum sentences.

Hate speech is a type of hate crime and includes the offences of “stirring up” hatred and racist chanting at a football match. Stirring up hatred offences focus on behaviour that causes others to hate entire groups, for example disseminating inflammatory racist material. Currently, only stirring up hatred in respect of race, religion and sexual orientation is criminalised (there is no equivalent offence for disability or transgender identity).

The Commission recommends:

  • levelling up the protection for disability and LGBT+ victims: across the various hate crime laws (including aggravated offences and stirring up offences) all protected characteristics should be treated equally; this would provide much greater protection for victims of disability and LGBT+ hate crime; another recommendation would strengthen the legal response to abuse and exploitation of disabled people, which the current approach often fails to recognise;
  • tackling sex and gender abuse: the offences of stirring up hatred should be extended to cover stirring up hatred on the grounds of sex or gender to help tackle the growing threat of “incel” ideology, and its potential to lead to serious criminal offending; there should also be a Government review of the need for a specific offence to tackle public sexual harassment, which would likely be more effective than adding sex or gender to hate crime laws; however, the Commission has recommended that “sex or gender” should not be added to the protected characteristics for aggravated offences and enhanced sentencing as it would be ineffective at protecting women and girls and in some cases, counterproductive; and
  • protecting freedom of expression: whilst the Commission has recommended some extensions to hate crime legislation, it has coupled these with reforms to hate speech laws and new protections for freedom of expression to ensure that only the most egregious hate speech is criminalised; in relation to the stirring up hatred offences, the Commission has recommended:
  • replacing the dwelling exemption with protection for private conversations to ensure they are exempted regardless of where they take place;
  • explicit protection for “gender critical” views, criticism of foreign governments, and discussion of cultural practices, and immigration, asylum and citizenship policy; and
  • a new protection for “neutral reporting” of inflammatory hate speech by third parties.

To access the Commission’s report, click here.