The best of both worlds: How to strengthen hate crime laws and protect free speech

The Law Commission is today announcing new recommendations to reform hate crime legislation to ensure that disabled and LGBT+ victims receive the same protections as victims with other protected characteristics like race and religion. If taken on, these reforms would ensure all five characteristics are protected equally by the law.

We are also making a number of recommendations to protect women and girls. This includes extending the offence of stirring up hatred to cover sex or gender, and has recommended that the government consider the need for a new offence to tackle public sexual harassment, so women can feel safer on our streets.

Whilst enhancing protection for victims of targeted abuse is paramount, we are also bolstering safeguards to freedom of expression to ensure that criminal law is focussed on the most egregious hate speech.

Prof Penney Lewis, Criminal Law Commissioner at the Law Commission said: “Hate crime has a terrible impact on victims and it’s unacceptable that the current levels of protection are so inconsistent. “Our recommendations would improve protections for victims while also ensuring that the right of freedom of expression is safeguarded.”

What is hate crime?

Hate crime refers to existing criminal offences, such as assault, harassment or criminal damage, where the victim is targeted on the basis of hostility towards one or more protected characteristics e.g. race or sexuality. In 2020/21, there were 10,679 prosecutions and 9,263 convictions for hate crimes in England and Wales.

There are two ways that the law currently treats hate crimes as more serious than other offences:

• Aggravated offences, which are separate versions of existing criminal offences, including assault, harassment, and criminal damage, that carry higher maximum penalties than the base offence.
• Enhanced sentencing, which applies to other existing criminal offences, and requires the sentence to be increased, but within the existing maximum available.

Aggravated offences currently only apply where there is racial or religious hostility. Hostility on grounds of sexual orientation, disability and transgender identity is covered by enhanced sentencing only, meaning that offences involving hostility towards these characteristics cannot receive the same maximum sentences.

For someone to be convicted of a hate crime, it must be proved that they committed a crime and:

1. they “demonstrated hostility” towards the victim on the basis of the protected characteristic at the time of committing the offence (for example, through the use of a homophobic slur); or
2. were “motivated by hostility” towards someone with a protected characteristic (for example, the victim’s religion).

Hate speech: Stirring up hatred

Hate speech is a type of hate crime and includes the offences of “stirring up” hatred and racist chanting at a football match. Stirring up hatred offences focus on behaviour that causes others to hate entire groups, for example disseminating inflammatory racist material. Currently, only stirring up hatred in respect of race, religion and sexual orientation is criminalised (there is no equivalent offence for disability or transgender identity).

Despite hate speech and stirring up offences receiving significant media and public attention, the threshold for prosecution of stirring up hatred is high and prosecution is rare. In a typical year there are fewer than ten prosecutions.

2018/19 saw the highest number of prosecutions ever with 13 prosecutions, resulting in 11 convictions. This was attributed to a spike following the London Bridge and Manchester attacks – some of these prosecutions involved calls for a “bomb a mosque day” or for Muslims to be forcibly sterilised or murdered.

Key recommendations in detail

Levelling up the protection for disability and LGBT+ victims

Hate crime laws don’t protect all five protected characteristics to the same degree. For example, aggravated offences only apply in respect of racial and religious hostility whilst the stirring up offences don’t cover disability or transgender identity.

This current hierarchy of protection is widely seen as unfair and sends a distinctly negative message to victims of hate crimes on the basis of disability, sexual orientation and transgender identity.

We argue that across the various hate crime laws (including aggravated offences and stirring up offences) all protected characteristics should be treated equally. This would provide much greater protection for victims of disability and LGBT+ hate crime. Another recommendation would strengthen the legal response to abuse and exploitation of disabled people, which the current approach often fails to recognise.

Tackling sex and gender abuse

We have also made a case for the greater protection of women and girls:

• Extending the offences of stirring up hatred to cover stirring up hatred on the grounds of sex or gender. This would help to tackle the growing threat of “incel” ideology, and its potential to lead to serious criminal offending.
  • “Incels” are those who view themselves as involuntarily celibate. There is a growing threat from incels calling for the rape and/or murder of women.
  • The Commission for Countering Extremism has warned that “Extremist hatred which has been fuelled online has resulted in real-world violence, with 47 deaths linked to the Incel worldview since 2014”.
• A government review of the need for a specific offence to tackle public sexual harassment, which would likely be more effective than adding sex or gender to hate crime laws.

These recommendations would help to protect women and girls, in combination with other Law Commission projects including our upcoming review of the use of evidence in sexual offences, our current intimate image abuse project and recent recommendations to protect against cyberflashing and rape threats.

However, we have proposed that “sex or gender” should not be added to the protected characteristics for aggravated offences and enhanced sentencing as it would be ineffective at protecting women and girls and in some cases, counterproductive.

For example, if applied in the context of rape and domestic abuse it could make it more difficult to secure convictions and create unhelpful hierarchies of victims. However, if these contexts were excluded, it would make misogyny very much the poor relation of hate crime laws, applicable only in certain, limited contexts.

Protecting freedom of expression

In relation to the stirring up hatred offences, the Commission has recommended:

• Replacing the dwelling exemption with protection for private conversations to ensure they are exempted regardless of where they take place
• Explicit protection for “gender critical” views, criticism of foreign governments, and discussion of cultural practices, and immigration, asylum and citizenship policy
• A new protection for “neutral reporting” of inflammatory hate speech by third parties.

Finding the balance between protection from hate and freedom of expression can feel like an impossible challenge but with the plans we're putting forward today, we are confident that we can build a fairer future for everyone.

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