Körero Whakamauähara : Hate Speech On indictment, the maximum penalty for these offenses is seven years imprisonment or a fine or both. On summary conviction, a maximum penalty is six months imprisonment, or a fine not exceeding the statutory maximum, or both.156 Potential prosecutions of all incitement crimes must be referred to the Special Crime and Counter Terrorism Division. Cases can only proceed with the consent of the Attorney General.157 The Crown Prosecution Service (CPS) plays an important role in the prosecution of hate crimes offences, which include ‘hate speech’. The CPS has produced prosecution guidelines and public statements for: • Racist and Religious Hate Crime • Stirring up Hatred on the Grounds of Sexual Orientation158 According to the CPS, although the success rate in prosecutions is high for stirring up offences, compared to other forms of hate crime, referrals and decisions to charge are much lower.159 In 2016-17 there were four prosecutions, all with successful outcomes. Between 2008 and 2012, only 113 charges of stirring up racial hatred and 21 charged of stirring up hatred on the ground of religion or sexual orientation reached a first hearing in a magistrate’s court.160 In contrast 75,000 charges for aggravated offences were laid.161 These are categories of criminal offences which are aggravated by being accompanied by hostility. There are nine offences which have aggravated versions, including common assault, harassment and stalking. The prosecution must prove not only that the underlying or “basic” offence was committed, but also that in committing it the defendant demonstrated, or was motivated by, hostility.162 Hateful motivation can also result in enhanced sentencing for other types of offences. Law Commission 2014 report In England and Wales, the Law Commission’s 2014 report Hate Crime: Should the Current Offences be Extended? examined the case for extending the stirring up offences to include disability or transgender identity.163 The Commission concluded that there was no practical need to extend the offences, stating that: “If new offences of stirring up hatred on the grounds of disability and transgender identity were created, there would be very few successful prosecutions.”164 The conclusion was based on the following considerations: there have been very few prosecutions for the existing offences of stirring up hatred, the type of hate speech typically found in relation to disability and transgender status is less likely to satisfy the requirements of a stirring up offence than that found in relation to race and religion and they most likely would be covered by other offences; therefore there would be still fewer successful prosecutions for the new stirring up offences than there are now for the existing ones. Therefore, the Commission found that the deterrence and communicative effects of the new offences would be limited.165 Public Order Act 1986, s 29L(3). Public Order Act 1986, ss 27(1) and 29L(1). 158 Crown Prosecution Service, Homophobic, Biphobic and Transphobic Hate Crimes – Prosecution Guidance (15 August 2018) <www.cps.gov.uk>. 159 Crown Prosecution Service, Hate Crime Data Report (2017-2018) <www.cps.gov.uk>. 160 Law Commission, Hate Crime: The Case for Extending the Existing Offences – A Consultation Paper (2014) at [4.8]; Law Commission, Hate Crime: Should the Current Offences be Extended? (May 2014) at 209. 161 Law Commission, Hate Crime: Should the Current Offences be Extended? (May 2014) at 209. 162 Crown Prosecution Service, “Hate Crime” (2017) <www.cps.gov.uk/hate-crime>. The UK Police and Crown Prosecution Service (CPS) have agreed on the following definition for identifying and flagging hate crimes: 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 disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity. 163 Law Commission, Hate Crime: Should the Current Offences be Extended? (May 2014) at 209. The initial terms of reference stated disability and gender identity. Gender identity was later confirmed to mean transgender identity. 164 At 14. 165 At 209-210. 156 157 31