The Framework of Criminal Law
Legislation on Bias-motivated Violence
|Bias-motivated Violent Crimes as Specific Offenses||Bias as an Express General Aggravating Factor||Bias as an Aggravating Factor in Specific Common Crimes|
Bias Types Covered by Provisions on Aggravating Circumstances
|Race/National Origin/Ethnicity||Religion||Sexual Orientation||Gender||Disability||Other|
Bias-motivated Violence as a Specific Offense
The development of hate crime legislation can trace its roots to the Crime and Disorder Act 1998 which created racially-aggravated offences in England and Wales. The Anti-Terrorism, Crime and Security Act 2001 amended the Crime and Disorder Act to expand the range of offenses to include “religiously aggravated offenses.”
On the basis of these two acts, the new offenses in England and Wales are as follows: racially or religiously aggravated assault, racially or religiously aggravated criminal damage, racially or religiously aggravated public order offenses, and racially or religiously aggravated harassment. In Scotland, the Act created the new offense of racially-motivated harassment.
For each of these new offences, the maximum penalty is higher than the maximum for the same basic offence without the element of racial or religious aggravation. Where the maximum sentence is life imprisonment, there is no racially or religiously aggravated alternative. The court is, however, required to state openly that the offense was so aggravated.
Bias-motivated Violence as a General Aggravating Factor
The Criminal Justice Act 2003 contains provisions stipulating enhanced penalties for offenses that are racially or religiously aggravated, with the exception of racially or religiously aggravated assaults, criminal damage, public order offences, which are treated as separate offenses. Article 145 states that “if the offense was racially or religiously aggravated, the court a) must treat that fact as an aggravating factor, and b) must state in open court that the offense was so aggravated.”
The Criminal Justice Act similarly provides for enhanced penalties for aggravation related to disability or sexual orientation. Article 146 states that if the offense is “motivated (wholly or partly) by hostility towards persons who are of a particular sexual orientation, or by hostility towards persons who have a disability or a particular disability, then the court must treat the fact that the offense was committed in any of those circumstances as an aggravating factor, and must state in open court that the offense was committed in such circumstances.”
Article 2 of the Criminal Justice (No. 2) Northern Ireland Order 2004 on “increase in sentence for offenses aggravated by hostility” states that “if the offense was aggravated by hostility, the court shall treat that fact as an aggravating factor (that is to say, a factor that increases the seriousness of the offense) and shall state in open court that the offense was so aggravated.” This article deals with offenses that are aggravated by hostility based on the victim’s race, religion, sexual orientation, or disability.
Article 74 of the Criminal Justice (Scotland) Act 2003 on “offenses aggravated by religious prejudice” states that “an offense is aggravated by religious prejudice if … the offense is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group. Where this section applies, the court must take the aggravation into account in determining the appropriate sentence.” The act further states that “where the sentence in respect of the offense is different from that which the court would have imposed had the offense not been aggravated by religious prejudice, the court must state the extent of and reasons for that difference.”
In 2009, the Scottish Parliament enacted a new Hate Crime Bill. The Offences (Aggravation By Prejudice) (Scotland) Bill (SP Bill 09) expanded the list of aggravated provisions to include offences by prejudice relating to disability, sexual orientation or transgender identity.
 The Crime and Disorder Act 1998, http://www.opsi.gov.uk/acts/acts1998/19980037.htm.
 The Anti-Terrorism, Crime and Security Act 2001, http://www.opsi.gov.uk/ACTS/acts2001/10024–f.htm#39.
 Crown Prosecution Services, “Racially Aggravated Offences,” http://www.cps.gov.uk/publications/docs/fs-racially.pdf (July 1, 2006).
 Criminal Justice Act 2003, Article 145, http://www.opsi.gov.uk/acts/acts2003/30044–o.htm#145.
 Criminal Justice Act 2003, Article 146, http://www.opsi.gov.uk/acts/acts2003/30044–o.htm#145.
 Criminal Justice (No. 2) (Northern Ireland) Order, Article 2, http://www.opsi.gov.uk/si/si2004/20041991.htm#2.
 The Criminal Justice (Scotland) Act 2003, Article 74.
 The Scottish Parliament: Bills, http://www.scottish.parliament.uk/s3/bills/09-AggPrej/index.htm.