Hate-Motivated Violence

Foreign Jurisdictions
Hate Crime Reporting Statutes and Police Initiatives

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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