Select Committee on Religious Offences in England and Wales Minutes of Evidence


Memorandum from the Home Office

RACIALLY OR RELIGIOUSLY AGGRAVATED OFFENCES

  Racially aggravated offences were introduced in Part II of the Crime and Disorder Act 1998. The offences were expanded to include religiously aggravated offences by the Anti-terrorism, Crime and Security Act 2001.

  There are six racially or religiously aggravated offences. These are detailed in table A.

  It should be noted that whilst these offences are based on existing offences the racially aggravated offences are separate offences.

  The six offences were based on the most common form of racist offence directed against the person (and criminal damage, which was added to the offences during the passage of the Crime and Disorder Act 1998.)

  The racially or religiously aggravated offences carry a maximum penalty that is one step higher on the sentencing ladder than the basic offence. However, the aggravated offences place on the prosecution the additional burden of proving racial or religious motivation, or hostility in connection with the offence.

  Any other offences (other than the six specific offences) are covered by the provisions of section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 (was section 82 of the Crime and Disorder Act 2000). This requires a court when considering the seriousness of an offence to treat evidence of racial or religious hostility as an aggravating factor meriting an increased penalty within the maximum available. The test of what amounts to racial or religious hostility in these cases is the same as for the six specific offences and is contained in section 28 of the Crime and Disorder Act 1998 (as amended) ie an offence is racially or religiously aggravated 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.

      (from section 28(1) Crime and Disorder Act 1998, as amended)

  The Government made clear during the passage of the 1998 Act that whilst it had considered a range of offences it did not think it would be practical to create specific racially aggravated offences for every criminal offence. In particular where the basic offence already carried a maximum sentence of life imprisonment there was little to be gained from creating an aggravated offence when the sentencer would be required to consider racial or religious hostility as an aggravating factor within the maximum available and where the Crown Prosecution Service are already under a duty to present any evidence of aggravating circumstances to the sentencer. Other offences which were not directed at a person or where there is no need for a recognisable victim would also not be an appropriate basis for an aggravated offence. All of these offences would however be covered by the section 153 provision.

Table A
Racially or Religiously Aggravated Offence Contained in Based on Maximum Sentence for Basic Offence Maximum Sentence for Aggravated Offence
Common assaultSectin 29(1)(a) Crime & Disorder Act 1998 (C&D Act) Common assault6 months and/or level 5 fine (£5,000) 2 years imprisonment and/or unlimited fine.
Assault Occasioning Actual Bodily harm Section 29(1)(b) C&D Act 1998Section 47 Offences against the Person Act 1861 5 years imprisonment7 years imprisonment
Malicious WoundingSection 29(1)(c) C&D Act 1998 Section 20 Offences against the Person Act 1861 5 years imprisonment7 years imprisonment
Criminal DamageSection 30 (1) C&D Act 1998 Section 1(1) of the Criminal Damage Act 1971 10 years imprisonment14 years imprisonment
Disorderly BehaviourSection 31(1)(c) C&D Act 1998 Section 5 Public Order Act 1986Level 3 fine (£1,000) Level 4 fine (£2,500)
Intentional BehaviourSection 31(1)(b) C&D Act 1998 Section 4A Public Order Act 19866 months and/or level 5 fine (£5,000) 2 years and/or an unlimited fine
Threatening behaviourSection 31(1)(a) C&D Act 1998 Section 4 Public Order Act 19866 months and/or level 5 fine (£5,000) 2 years and/or an unlimited fine
HarassmentSection 32(1)(a) C&D Act 1998 Section 2 Protection from Harassment Act 1997 6 months and/or level 5 fine (£5,000) 2 years and/or an unlimited fine
Fear of ViolenceSection 32(1)(b) C&D Act 1998 Section 4 Protection from Harassment Act 1997 5 years and/or an unlimited fine7 years and/or an unlimited fine




 
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