Disability Hate Crime

Robert Buckland Excerpts

Wednesday 23rd November 2011 Westminster Hall

[Mr Robert Buckland (South Swindon) (Con)]

It is an honour and a pleasure to take part in this debate. I am grateful to the hon. Member for Stretford and Urmston (Kate Green) and congratulate her on securing it. I was present in the main Chamber when she managed to secure the important concession from the Lord Chancellor on schedule 21 of the Criminal Justice Act 2003. I pay tribute to her and to my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard) for their work. They will be glad to know that, as well as the Members present, those in another place, particularly Lord Touhig, have played a key part in changing the Government’s mind. We met the Under-Secretary of State for Justice, my hon. Friend the Member for Reigate (Mr Blunt), only some 10 days prior to that concession, to press the case on schedule 21, and I am delighted that the Government have moved so swiftly to regularise the position.

That, of course, gives rise to the question: why not move in other areas? Why not regularise the law so that disability hate crime is treated in the same way as an aggravated offence, as is the case with race or religion? That would require an amendment to primary legislation, and yes, I know it would be a big step, but it would be an important one. If we are making concessions elsewhere, we should regularise the law in that area as well. We treat equalities as a single concept now and we have an Equality and Human Rights Commission.

[Mr Gregory Campbell (East Londonderry) (DUP)]

Surely moving beyond schedule 21 means that, as a society, we should ensure that we do not seem to treat disabled people as a people apart, almost saying that different attitudes, legislation and approaches are required for them. The more we treat disabled people like those of us who are not disabled, the more likely society as a whole is to follow that example and move away from treating them as almost subnormal or abnormal.

[Mr Buckland]

I am grateful to the hon. Gentleman for dealing with a point that I was about to address and that has been alluded to by other Members. The focus needs to be shifted away from always analysing a case’s evidence by looking at the victim, and towards the wrongdoing and what the offender has done. That welcome shift of emphasis was displayed in guidance issued by the Crown Prosecution Service to prosecutors in England and Wales in March 2010. It is similar to the shift in focus that occurred some years ago in relation to domestic violence. People used to ask of the victim, “Why did she stay with him?”, instead of focusing on the behaviour of the perpetrator, which, I am glad to say, is what is now happening in cases of domestic abuse. The same must happen in relation to disability.

The danger we face in focusing on the victim and their behaviour is that in assuming that all disabled people are vulnerable just because of their disability, we start asking dangerous questions, such as, “Why don’t they avoid these situations? Why do disabled people put themselves in that position in the first place?” By asking those dangerous questions, we are at risk of driving disabled people back into their homes and into institutions, and away from mainstream society. That is wrong and I hope that today’s debate will give a clear message to the Government that we must avoid it. We are in danger of being as bad as the people in ages past who used to apply the dunce’s cap to disabled people in the classroom.

Such attitudes lead to other dangerous assumptions, such as that of some involved in the criminal justice system that disabled people are somehow unreliable or incredible witnesses, simply because of their disability. That is another dangerous and fatal assumption, which, I am afraid, has played far too great a part in the criminal justice system and has prejudiced and stopped cases involving disabled people. It has ended in miscarriages of justice involving disabled people.

I have mentioned the guidance, which was welcome. It followed a speech made by Lord Macdonald when he was Director of Public Prosecutions, which I think helped to clarify the CPS’s position and its understanding of disability. I welcomed his comments about the concept of hate. We have to be careful when using the word “hate”; we must make clear what it covers. The danger with the word is that hate is an extreme concept, so we think that there cannot be many people in our society capable of it. The definition, however, is a wider one, and includes hostility or prejudice. What does that mean? There are other words for hostility, such as unfriendliness, antagonism, meanness and sheer ignorance. That is particularly important when we consider that many acts are perpetrated over a long period. We have heard about many sad cases, both today and elsewhere, that involve the victims of a crime finally suffering the last straw that broke the camel’s back. It is important to remember that “hate” has a wide definition and involves a whole section of attitudes that I believe are bred from ignorance and sheer lack of understanding of the needs of disabled people. That leads to offences that take place on many levels; low-level offences can cause so much misery to the lives of disabled people.

We have been rightly reminded of the provisions of section 146 of the 2003 Act. To be fair to the drafters of that welcome provision, it says that the court “must” treat the fact that the offence was committed in an aggravating way when the offender, immediately at the time of the offence, or before or after it, demonstrated hostility based on the disability or presumed disability of the victim. The provisions are there; they are mandatory. The problem is with the previous stage, because there must be evidence of hostility beforehand, which is where the work of prosecutors becomes extremely important.

The guidelines include a welcome set of considerations that all prosecutors should consider when reviewing cases involving disability. They are the sort of factors that we have discussed today, such as previous incidents involving the victim and the offender. Are the incidents escalating in severity or frequency? Is the targeting becoming systematic and regular, rather than opportunistic offending? On the status of the offender, we have heard about so-called “friends” who befriend people and then manipulate the circumstances. A lot of proper questions are being asked in the guidelines. The key now is to ensure that in every case, those considerations are applied, looked at and checked in each case file.

Key actions could be taken now to help both prosecutors and sentencers. For example, section 146 should be flagged up as a consideration in every case file, so that when prosecutors assess and prepare the evidence, any sentencer is aware of it. In open court, the prosecuting solicitor or barrister should remind the court of their powers under section 146. Such nuts-and-bolts practical measures could see the sort of increase in the use of section 146 that was rightly referred to by the right hon. Member for Coatbridge, Chryston and Bellshill (Mr Clarke), and which we all want to happen.

Court practitioners and judges need more training on disability issues, most notably the use of section 146. The key point that I found, depressingly, time and time again is that the equation between disability and reliability has to be broken. We have to break that link in the hearts and minds of those involved in the system.

[Mark Durkan]

In respect of the whole question of sentence uplifts, the ECHR report stated that sentence uplifts have never been applied to any prosecution of rape or sexual assault where the victim was a disabled person. Is the point about the question of unreliability of people as witnesses, which the hon. Gentleman has just made, a factor in that?

[Mr Buckland]

I am grateful to the hon. Gentleman. I will address his point directly. There is no doubt in my mind that prosecutors who face a case where the victim has disabilities feel that somehow the prosecution will be an uphill struggle. Far too often, the use of special measures is not considered as much as it should be. For example, in a case that I was involved in, a person with a moderate learning disability was the victim of a rape. Through the help of an intermediary, the person was able to give evidence through a video link and a conviction was secured. The intermediary was a speech and language therapist. She was not only able to give confidence to the victim, but was there to assist the court if there was any ambiguity or lack of clarity to the jury in what the victim was saying. It was a most encouraging exercise, not only in achieving a fair result, but in making sure that the voice of that person was heard.

The role of intermediaries should be expanded and encouraged, not viewed as an unusual event in our courts. I think that there was an instinctive suspicion among practitioners that somehow the use of an intermediary would dilute the victim’s evidence, or would in some way interfere with the process of giving evidence. Those concerns are unfounded. People should think of intermediaries as officers who help the court, rather than people who somehow manipulate or interfere with the evidence. That is not my experience, nor that of many other people who have successfully used intermediaries. To put it bluntly, if the intermediary had not been there to assist the witness in that very serious offence of rape, I do not believe that we would have secured a conviction. I am grateful to the hon. Gentleman for raising that point.

It has already been said that in the past four years, despite the fact that there are 10 million disabled people in the UK, only 1,200 cases of hate crime have been prosecuted. On the basis of a recent Scope survey, conducted in May 2011, that is an incredibly low figure. The survey revealed that almost 60% of disabled people had experienced hostility, aggression or violence due to their impairment, and that half of disabled people said that they experience hostility on at least a weekly basis. Almost 40% of disabled people said that hostility had got worse in the past year. If we extrapolate those figures, we see that millions of people are suffering in silence or, when their voice is heard, that the situation is not being effectively dealt with by the authorities.

We have come a long way since society wished to institutionalise disabled people and wholly shut them out from the mainstream, but we still have a long way to go to ensure that when disabled people, rightly, access mainstream life, they do not become vulnerable because of the circumstances in which they put themselves. We must all, as a society, stop asking these dangerous questions: why do they come out into the mainstream and why do they put themselves in those positions? Let us focus on the offender. Let us focus on the offending. With that approach, we can achieve real results in the field of disability hate crime.