Defining and measuring hate crimes

Hate crimes have attracted a significant amount of media attention in the last few weeks. This has followed the tragic death of Arek Jozwik - a Polish man killed in Harlow, Essex. At the same time, Nottinghamshire Police have come under the media spotlight for expanding hate crimes to include misogynist incidents.

Yet, despite the attention, some uncertainty remains on what constitutes a hate crime, how they are measured and their prevalence.  

Legislation

The relevant legislation does not explicitly use the term “hate crime”. Instead the Crime and Disorder Act 1998 makes hateful behaviour towards a victim based on the victim’s membership, or perceived membership, of a racial group or a religious group an aggravation in sentencing for specified crimes.

A "racial group" is a group of persons defined in reference to their race, colour, nationality (including citizenship) or ethnic or national origins. A "religious group" is a group of persons defined by reference to religious belief or lack of religious belief. The specified crimes are assault, criminal damage, offences under the Public Order Act 1986, and offences under the Protection from Harassment Act 1997.

The Criminal Justice Act 2003 requires a court to consider whether a crime which is not one of those specified above is racially or religiously aggravated. The Act requires a court also to consider whether the following circumstances were pertinent to the crime:

  • that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

(i) the sexual orientation (or presumed sexual orientation) of the victim, or

(ii) a disability (or presumed disability) of the victim, or

  • that the offence is motivated (wholly or partly)—

(i) by hostility towards persons who are of a particular sexual orientation, or

           (ii) by hostility towards persons who have a disability or a particular disability

Thus, a hate crime can be considered any crime which is motivated by the victim's membership, or perceived membership of, a racial group, or religious group, or by their sexual orientation or because they have a disability.

Police recording

While the legislation itself does not use the term hate crime, the police do use the term to record crime.

The Association of Chief Police Officers and the Crown Prosecution Service (CPS) have agreed a common definition of hate crime:

"Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice based on a person's race or perceived race; religion or perceived religion; sexual orientation or perceived sexual orientation; disability or perceived disability and any crime motivated by hostility or prejudice against a person who is transgender or perceived to be transgender."

There are therefore significant differences between how the relevant legislation defines hateful behaviour and how the police record hate crimes. The police require only a victim or any other person to perceive a crime to be motivated by discrimination for the alleged offence to be considered a hate crime. In contrast, the courts require much more proof that the crime was motivated by discrimination.

The discrepancy between court requirements and police recording is likely to be one of the reasons that hate crimes have a fairly low conviction rate. In 2015-16, only 27% of hate crimes recorded by police resulted in a ‘positive’ outcome such as a charge, summons, caution or restorative justice. Indeed the method of relying purely on the victim's perception has attracted some criticism. In a recent article, Brendan O'Neill argued that “a victim’s perception is the deciding factor in whether something is measured as a hate crime. No evidence is required”.

In recent years, police forces have been allowed to include their own definition of a hate crime. This has led to some forces forming their own subcategories. Most notably, Nottinghamshire Police now record misogyny as a hate crime. They define misogynist hate crime as:

"Incidents against women that are motivated by an attitude of a man towards a woman and includes behaviour targeted towards a woman by men simply because they are a woman."

They argue that treating such alleged offenses as hate crimes will help give more victims the courage to report incidents and will improve police investigation of such incidents. However, the decision is likely to widen the gap between the courts and the police since the relevant does not consider hateful behaviour towards a victim based on their gender to be an aggravating factor.

Prevalence

There are two main methods of measuring hate crimes. The number of hate crimes can be measured by the number recorded by the police or what is derived from the Crime Survey for England and Wales (CSEW) - an independent survey of 35,000 households which includes both reported and unreported crime. The CSEW involves researchers attending randomly allocated households and performing face-to-face interviews to establish whether the individuals were victims of a crime in the past year.

Police reported hate crimes v CSEW reported hate crimes

Source: Home Office

The chart above shows that both the CSEW and police recording show the numbers of hate crimes slowly increasing over the past five years. There is, however, a significant gulf between the numbers each method records. The CSEW estimates an average of 222,000 hate crimes a year while the police estimate an average of 47,500 crimes a year. Some of the difference is explained by the CSEW estimate that around 40% of hate crimes are not reported to the police. However, a significant difference persists. This may be explained by the large margin of error created by the small sample size that the CSEW uses to extrapolate the overall crime figures.

Both the police and the CSEW find that the vast majority of hate crimes involve racial prejudice. The chart below shows the prevalence of hate crimes by form.

Hate crimes by motivation (%)

Source: Home Office

Post-brexit

Since the United Kingdom voted to leave the European Union in June, a number of media sources have noted an increase in alleged hate crimes. According to Mark Hamilton, head of the National Police Chiefs’ Council (NPCC), reports to police increased by 42%, to more than 3,000 allegations of hate crime across Britain in the week before and the week after the vote on the 23rd June. Last week, the NPCC published quarterly figures which seemed to show a lasting effect. The graph below shows the year-on-year rises in hate crimes reported to the police in the weeks following the Brexit referendum. Each week had a substantial increase. However, the number of crimes appeared to peak in week 5 when there was a 55% increase.

Year on year rise in hate crimes in the weeks after the Brexit referendum

Source: NSPCC

Conclusion

The courts define a hate crime as potentially any crime which is motivated by the victim's membership, or perceived membership of, various groups. In contrast, the police use a much looser definition, defining hate crimes as any crime where the victim or any other person perceives the membership of various groups to be a motivating factor. In addition, the police vary which groups a hate crime can be committed against while the courts only consider race, religion, sexual orientation and disability as the relevant groups.

Official statistics suggest that the number of hate crimes, both reported and unreported, have gradually increased over the past five years. However, following the Brexit referendum, there appears to have been a sharp and significant increase in the number of hate crimes reported to the police.

James Dobson is a researcher at Bright Blue