Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-02
Last-Modified: 1997/01/21
Source: Department of Justice Canada

5.1.2.3 Hate Crime Reporting Statutes and Police Initiatives

A number of states have legislated the reporting of hate
crimes by the police in order to better analyze the
commission of hate crimes in their respective states.<131>
For example, Florida has a Hate Crimes Reporting Act that
requires police to collect data on incidents of hate crimes,
and an annual report on that data is published by the state.<132>

As regards police initiatives, under the auspices of the ADL
and the U.S.A. Conference of Mayors, a survey of 157 cities
revealed that police departments in 47 percent (73) of them
have special written policies, procedures or directives on
reporting and responding to bias-motivated crime. Police
departments in 3 l percent (48) of the cities have a special
unit or task force to handle bias-motivated criminal
activity.<133> It appears that one of the more successful
efforts in the United States has occurred in Boston, where
the Boston Police Department has set up a Community
Disorders Unit to combat racial violence. The Unit oversees
all racial violence cases and has taken responsibility for
coordinating an interagency task force of local, state and
federal enforcement agencies that has successfully brought
to trial a number of suspects.<134> This Community Disorders
Unit is the model on which the Ottawa Police Bias Crimes
Unit is based.

5.2 England

The most obvious hate crimes in England, specifically
defined in terms of criminalizing racial hatred, are those
concerning incitement to racial hatred, now found in Part
III (ss. 17-29) of the Public Order Act 1986.<135> Criminal
liability ensues where a persion uses or publishes words or
behaviour or written material that is threatening, abusive,
or insulting where, having regard to all the circumstances,
racial hatred was likely to be stirred up or the person
intended to stir up racial hatred. There are also the crimes
of possessing racially inflammatory material with a view to
publication, and of inciting to racial hatred by the
distribution, showing, or playing of films, videos, sound
recordings and other media, including, generally,
broadcasting. The definition of "racial hatred" means hatred
against a group of persons in Great Britain defined by
reference to colour, race, nationality (including
citizenship), or ethnic or national origins. Neither
religion nor sexual orientation is included in the
definition. Nonetheless, given the wide interpretation of
"ethnic group" by case law, an attack on Jews, for example,
would be regarded as an attack against an ethnic group <136>

Legislation has also been enacted to protect racial groups
in the context of football hooliganism. Section 3(1) of the
Football (Offences) Act 1991 makes it an offence to take
part in chanting of an indecent or racialist nature at a
designated football match.<137>

Section 5(1) of the Public Order Act also provides that a
person is guilty of an offence if he uses threatening,
abusive, or insulting words or behaviour, or disorderly
behaviour, or displays any writing that is threatening,
abusive, or insulting, within the hearing or sight of a
person likely to be caused harassment, alarm, or distress
thereby. This crime of disorderly behaviour is quite broad
and arguably could be used to prosecute persons guilty of
racial harassment. Indeed, the government has stated that it
hoped that this new offence of disorderly conduct and the
associated power of arrest would prove of value in dealing
with some racially offensive behaviour.<138>

The Commission for Racial Equality, and some others, have
argued for a change in the criminal law to make racial
harassment and attacks a specific offence.'39 In December
1992, a private member's measure, the Racial Harassment
Bill, was introduced in Parliament.<140> However, to date,
the government has refused to change the law. In 1986, the
government stated, in its official response to a report of
the Home Affairs Select Committee of the House of Commons on
the topic of racial attacks and harassment, that a new
offence of racial harassment would cover behaviour already
penalized by the law, that it could make convictions more
difficult to obtain by requiring the prosecution to prove an
additional racial element, that the declaratory impact of
such a crime could be lost if prosecutors, for perfectly
valid reasons, preferred to rely on other criminal law
provisions, and that more progress was likely to come from
the existing use of existing offences.<141>

Government efforts have instead focussed on other mechanisms
to combat racial violence. At least since the beginning of
the 1980s, the British government has recognized that racial
violence is a serious problem. In response to pressure from
various groups, such as the Commission for Racial Equality,
the Home Secretary  commissioned a report on the subject of
racial attacks, which was published in 1981.'42 In that
report, the Home Office acknowledged that racial attacks
presented a serious problem. This report was the first
official study into the incidence of racial attacks in
Britain. A later Home Office document stated:

     The results of that survey shocked many people. It
     revealed that attacks with a racial motive were more
     common than had been previously supposed and that Asian
     and black people were far more likely than white people
     (50 times and 36 times respectively) to be the victims
     of such attacks.<43>

As well, a number of additional government reports,
parliamentary reports, and reports from other interested
organizations have been published in the past decade
addressing the issue of racial attacks. For example, the
Home Affairs Committee of the House of Commons has been
active in examining the government's responses to racial
attacks and harassment. Its 1986 report, while acknowledging
that the police and other agencies had made improvements in
their efforts to respond to racial incidents since 1981,
stated at the outset that the incidence of racial attacks
and harassment remained "[t]he most shameful and dispiriting
aspect of race relations in Britain", and recommended that
all police and local authorities whose areas contain an
appreciable ethnic minority population should give serious
consideration to the
establishment of a multi-agency approach to racial
incidents.<144>

In response to that recommendation, the Ministerial Group on
Crime Prevention established an interdepartmental working
party -- the Racial Attacks Group (hereinafter the RAG). In
its first report, The Response to Racial Attacks and
Harassment:: Guidance for the Statutory Agencies,<145> the
RAG found that there were very few instances of effective
multi-agency liaison, or, for that matter, of effective
unilateral action by individual agencies. It therefore made
a number of proposals to increase the effectiveness of
agencies in combatting racial attacks, with particular
emphasis on the recommendation that the various agencies
offer a multi-agency approach to tackling the problem of
racial harassment.<146>

In 1991, the Home Office published a follow-up report to
this initial report of the RAG.<147> It examined the degree
to which the RAG's recommendations had been implemented,
both in terms of individual agencies and agencies working
together, and gave examples of good practice in order to
illustrate how the momentum in tackling racial harassment
and violence could be sustained. Among these were an
information campaign by the Metropolitan Police directed
towards minority groups, explaining the police role in
responding to racial attacks and stressing the need to
report such attacks; the revising by police of their
procedures for passing files to the Crown Prosecution
Service (CPS), usually by ensuring that racial motivation in
a particular case was brought fully to the attention of the
prosecutor; the establishment by the CPS of clear,
nationally set guidelines on the subject of racially
motivated offences, to be implemented in each of its areas;
and an amendment to the Code for crown prosecutors, stating
that a clear racial motivation will be regarded as an
aggravating feature when assessing whether prosecution is
required in the public interest.<148>

In addition, a number of projects have been set up in Great
Britain to combat the problem of racial harassment. For
example, in North Plaistow, and in other areas,  the concept
of a multi-agency approach to dealing with racial harassment
and attacks is being evaluated.<149  >

5.3 Australia

5.3.1 Present Law

At the state level, some Australian states have enacted
crimes of serious racial vilification.<150> At the federal
level, although a bill was introduced that would have
created crimes of racial incitement against a person or
group of persons and that would have made racist
vilification against a person or group unlawful,<151> the
bill lapsed with the calling of the recent federal election
and it does not appear that it will be brought forward at
this time.

As regards racist violence generally, the state of the
present criminal law has been summarized as follows:

     Any case of actual violence would be covered by some
     existing criminal law (murder, assault, affray,
     malicious injury to property etc.) without reference to
     the racist content or motivation of the perpetrator.
     Certain forms of threats of violence, if sufficiently
     specific, may also be covered by existing laws ....
     Generalised threats which are characteristic of racial
     intimidation and harassment and other forms of verbal
     abuse do not constitute criminal offences either at
     Common Law or under Criminal Codes.

     While motivation may be taken into account at the
     level of sentencing for any crime, it is not
     identified as a relevant circumstance to be taken into
     account by the authorities responsible for
     investigating and prosecuting crimes. Further, there
     is no way by which racist motivation may be taken into
     account in sentencing in a systematic way. A
     magistrate or judge is at present entitled either to
     ignore such motivation or to consider it as a factor
     adding to the gravity of an offence. Evidence is hard
     to obtain on this point, but there have been
     suggestions that in some cases racist motives have
     been regarded as mitigating (rather than aggravating)
     factors.<152>

In Australia, the issue of racist violence has been
specifically addressed by two major federal commissions.
The recommendations of each will be discussed separately.

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