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British Journal of Community Justice ©2020 Manchester Metropolitan University

ISSN 1475-0279 Vol. 16(1) 82–102

REINTERPRETING THE UK RESPONSE TO HATE CRIME

W. Laverick, University of Hull, and N. P. Joyce, University of Glyndŵr

Abstract This paper considers the motivation and function of the UK’s hate-crime framework, offering a historically located interpretation. It discusses the development of legislation to combat discrimination- and prejudice-motivated harassment and offending before examining recent assessments of the UK’s approach. It then provides a cursory examination of the historical context in which the UK’s legislative and policy developments emerged. After exposing the limitations of the current UK response and framing this in a wider domestic and international context, the paper concludes by arguing that the UK’s evolving hate-crime policy framework currently remains partial and serves to obfuscate its social control objectives, along with the political anxieties related to the ideological and political threats and disorder that underpinned its development. The article concludes by arguing that the current framework has recently downgraded – and increasingly sidesteps – the need to address internal manifestations of illiberalism, including institutional discrimination, workforce representativeness, racial and religious disparity, and equal opportunities.

Keywords Hate crime; illiberalism; political disorder; social disorder

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Introduction

In 1999, the European Commission against Racism and Intolerance (ECRI) credited the United Kingdom (UK) for having ‘one of the most advanced institutional frameworks to combat racism and discrimination’ (ECRI, 1999). Since that time, and following in the wake of a series of high-profile prejudice-based incidents, the remit of the UK’s framework has widened, moving beyond an exclusive focus upon race to incorporate an ‘innovative legal and policy framework applicable to hate crimes’ (UN, 2018a). Indeed, the UK framework now obliges forces to record data on hate crimes and hate incidents motivated on the basis of five monitored strands: race, sexual orientation, transgender status, faith and disability (Laverick and Joyce, 2019). Local partnerships are permitted to extend the focus of their hate crime policies to address local concerns and crimes motivated by other manifestations of hostility, such as those related to alternative sub-cultures following the death of Sophie Lancaster within Greater Manchester (College of Policing, 2014a:7-8) and misogynistic incidents in Nottinghamshire (BBC News, 2016:online).

This paper considers the motivation and function of the UK’s hate crime framework, offering a historically located interpretation. It discusses the development of legislation to combat discrimination- and prejudice-motivated harassment and offending before examining recent assessments of the UK’s approach. It then provides a cursory examination of the historical context in which the UK’s legislative and policy developments emerged. After exposing the limitations of the current UK response and framing this in a wider domestic and international context, the paper concludes by arguing that the UK’s evolving hate crime policy framework currently remains partial and serves to obfuscate its social control objectives, along with the political anxieties related to the ideological and political threats and disorder that underpinned its development. This article concludes by arguing that the current framework has recently downgraded – and increasingly sidesteps – the need to address internal manifestations of illiberalism, including institutional discrimination, workforce representativeness, racial and religious disparity and equal opportunities. Whilst often neglected by hate crime scholarship, it is suggested that action to address structural and institutional illiberalism, in conjunction with wider economic development strategy and immigration controls, can function to serve the primary goal of maintaining social control and order. It is suggested that uncoupling the former components of this strategy from current hate crime and vulnerability frameworks directs attention away from the roots of this legislative and policy framework, and will ultimately fail to alleviate the structural conditions conducive to prejudice-based violence.

Hate crime as a priority concern

The UK is generally regarded as having both an ‘advanced institutional framework’ (ECRI, 1999:7) and ‘generally strong legislation’ (ECRI, 2016:9) to combat racism and discrimination. The 1965 Race Relations Act is widely regarded as the first piece of legislation in the UK to address the prohibition of racial discrimination (Hindell, 1965). Nevertheless, racist threats and intimidation have persisted across the UK, prompting further efforts to counter incitement to racial hatred, particularly through Part III of the Public Order Act 1986, which was largely presented as action to protect ethnic minorities from racist abuse and intimidation (Hansard, 1985).

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In 1999, the Stephen Lawrence Inquiry recognised the need for the police service to ‘deliver a service which recognises the different experiences, perceptions and needs of a diverse society’ (College of Policing, 2014a:1). Described as a watershed in race relations, the Macpherson Inquiry Report on the police investigation into the murder of black teenager Stephen Lawrence in 1993 drew together 70 recommendations, many of which provided a set of general principles that should be applied to a broader range of hate crimes than that of racial harassment. As noted by McGhee (2007:213), such measures became part of a growing number of ‘hate crime’ provisions that were introduced in England and Wales to address racial discrimination, racially motivated victimisation and racially or religiously aggravated offending. This included the Football Offences Act 1991 (racialist chanting), the Crime and Disorder Act 1998, the Criminal Courts Sentencing Act 2000, the Race Relations Amendment Act 2000 and the Anti-Terrorism Crime and Security Act 2001. As argued by Asquith (2012:147), such legislative developments resulted in ‘multiple-service enhancements to victims, along with a comprehensive re-organisation of policing organisations’ standard operating procedures and reporting techniques’. This was accompanied by government efforts to measure and monitor the frequency and extent of victimisation, and to provide equal opportunities and workforce representativeness within the police service and across criminal justice and civil service institutions (Laverick and Joyce, 2019). Moreover, as noted by Smithson et al. (2011), the 2002 amendment of the Race Relations Act served to extend the focus beyond race and religion, placing a statutory duty upon agencies to impact-assess all of their policies to prevent race, gender and disability discrimination. In 2010, the Equality Act came into force, providing a single legal framework to tackle disadvantage and discrimination, and extending protection on the basis of a range of protected characteristics.

Despite this flurry of legislative action, it remains the case that within the UK there is presently no single piece of legislation that criminalises hate crime. Nevertheless, legislation currently gives prosecutors two options when applying for an increase in sentence for those who are convicted of a hate crime. Thus, the Crime and Disorder Act 1998 provides for a higher maximum penalty for offences considered to be racially or religiously aggravated, and the Criminal Justice Act 2003 provides for enhanced sentencing for offenders considered to be aggravated by one or more of five protected characteristics (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018a; 2018b:9-10). As noted by the UN, in addition to a number of domestic laws that apply directly to racial equality, the UK has adopted an ‘innovative legal and policy framework applicable to hate crimes’ (UN, 2018a). Thus, as detailed by McGhee (2007:214), legislation has been accompanied by ‘a growing anti-hate crime movement’ across the criminal justice system. In 2003, a London- wide Race Hate Crime Forum was established to promote coordination and cooperation between key agencies. At the same time, the London Metropolitan Police Service, through its Strategy Research and Analysis Unit, sought to build an evidence base for specific and more general forms of hate crime (Asquith, 2012). In 2005, the UK government published its race and community cohesion strategy – Improving Opportunities, Strengthening Society – which explicitly referred to the implementation of Britain’s obligations under the International Convention for the Elimination of all Forms of Racial Discrimination. The document addressed racism and hate crime specifically, pledging to reduce racially motivated incidents and improve the reporting and recording of racist incidents. In 2005,

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the Home Office Standards Unit and the Association of Chief Police Officers published a guidance document entitled Hate Crime: Delivering a Quality Service. The document moved away from an exclusive focus upon racially motivated incidents, obliging forces to record data on hate incidents motivated on the basis of race, sexual orientation, faith and disability (Laverick and Joyce, 2019). In 2007, the police, Crown Prosecution Service, Prison Service and other agencies agreed a common definition of monitored hate crime, covering five strands, and the police committed to record reported hate crime for the five monitored strands in 2008 (Her Majesty’s Government, 2012:6). Hate crime against disabled, homosexual and transgender people featured within the Conservative and Liberal Democratic Coalition 2010 Programme for Government (Her Majesty’s Government, 2010a). This marked a turn towards the development of a ‘whole communities’ and ‘needs- based’ approach towards tackling prejudice-related crime (Laverick and Joyce, 2019:299).

Against this proliferation of legislative and policy provision, the Crown Prosecution Service (2012) reported that under-reporting and under-recording of hate crime remained prevalent. In an attempt to remedy these concerns, the Coalition government and newly created College of Policing published a series of action plans, progress reports, strategies and operational guidance (HM Government, 2012; CJJI, 2013; College of Policing, 2014a, 2014b; CJJI, 2015; Home Office, 2016; 2017; HM Government, 2018; Home Office, 2018a, 2018b).

An assessment of the UK response

From the summary of legislative and policy developments presented in the previous section, it is evident that the UK government has invested considerable time and energy in building public confidence in their action to tackle hate crime. Whilst scholars recognise the complexity of hate crime, and variations in approaches internationally (see, for example, Chakraborti and Garland, 2012; 2015; Brax and Munthe, 2015, Chakraborti, 2016; Perry, 2016; Chakraborti and Hardy, 2017), it has been suggested by Laverick (2016) that the UK has adopted a liberal crime control response to hate crime, which incorporates the rule of law and institutional reform alongside multi-agency and cooperative action. In particular, the UK’s strategic response includes the following: actions to create a common definition in order to generate consistency and improve the effectiveness of the criminal justice system; emphasising training and guidance to improve the detection, investigation, prosecution and management of hate-crime cases; and providing legislative and sentencing reforms. Action has also been taken to strengthen the defence of vulnerable targets and to manage risks in potential high-risk environments, promoting collaboration to strengthen and enhance coordination at policy and operational levels (Laverick and Joyce, 2019:325-352).

Although good practice examples of hate crime interventions and third-party reporting mechanisms are referred to within the College of Policing Operational Guidance (College of Policing, 2014a) and are made available on the True Vision website (True Vision:online), academic research has identified a number of failings within existing UK policy-level responses to hate crime. Whilst a comprehensive overview of the burgeoning hate crime research literature remains beyond the scope of the present paper and has been acknowledged in our previous work (Laverick and Joyce, 2019), it is significant to note that the Government’s Action Plan has been criticised for ‘its failure to outline specific means

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through which most of [its] aims will be achieved’ (Waters et al., 2016:9). The Action Plan has also been challenged for its failure ‘to provide any information on how their effectiveness or utility will be measured’ and for insufficient or an absence of ‘detail about when and how… actions will be arranged or whether (and how) their success will be evaluated’. Thus, it has been argued that ‘action points are so broadly termed as to make any objective evaluation of their success unmeasurable’ (Walters et al., 2016:9). Other research has highlighted a continuing ‘failure to dismantle barriers to reporting, a failure to prioritize engagement with diverse communities and a failure to provide meaningful criminal justice interventions’, which, it is argued, impacts upon ‘the capacity of hate crime victims from different identity groups and backgrounds to access appropriate support’, thereby undermining the credibility and effectiveness of policy-level responses in the eyes of victims (Chakraborti, 2018:399).

Moreover, recent inspectorate assessments regarding the UK’s approach highlights continuing public dissatisfaction with the police response. Thus, data from the Crime Survey for England and Wales from 2012/13 to 2014/15 revealed that victims of hate crime were still less likely than victims of crime overall to be very or fairly satisfied with the police’s handling of the matter (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2017:7). This finding was reiterated in a 2017 inspection of police forces’ understandings of and responses to hate crime (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2017:8). Reinforcing the observations of Chakraborti (2018), two further Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services reports raised questions regarding under-reporting and police force understanding of community needs, with one noting ‘a significant proportion of victims… do not feel their support needs are recognised or adequately addressed and do not feel they have access to justice’ (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018a:4). Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services further recognised that whilst police forces ‘understand that it is important to take hate crime seriously’ and ‘encourage victims to report incidents’, ‘this does not always translate into a deeper understanding of their communities and how they are being victimised’ (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018b:4). Moreover, forces were criticised for ‘failing to use the limited information at their disposal’ and were deemed ‘ill-equipped to assess the nature and extent of online hate crime’ (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018b:16).

Somewhat damningly then, Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services revealed an inconsistent picture between (and sometimes within) forces regarding their approach to hate crime, concluding that ‘progress has been too slow’ (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018b:6), with victims facing ‘a postcode lottery’ when it comes to the response (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018b:93). Significantly, the inspection report also directed attention to the recent pressure placed upon forces within a climate of diminished resources, noting that ‘it is difficult to escape the conclusion that competing demands are affecting the ability of forces to respond effectively to hate crime’ and reporting a failure to see ‘a uniform commitment by force leaders to treat victims of

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hate crime as a priority’ (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018b:94). The inspection also reported that there had been ‘a substantial decline in some of the outcomes of hate crime investigations, including those that result in a charge’ (Her Majesty’s Inspectorate of Constabularies and Fire and Rescue Services, 2018b:94), reflecting the observations made within a recent report by the Home Affairs Select Committee, Policing for the Future, that highlighted low investigation rates and a marked reduction in the number of charges, summons and justice outcomes across the service, within the contemporary period of austerity (Joyce and Laverick, 2018).

In addition to the effectiveness of the UK’s hate crime framework, the nation’s record on addressing racial disparities has also recently been called into question. Thus, in 2018, the UN Special Rapporteur on racism (drawing on the findings of both the UK’s Racial Disparity Audit and the 2017 Lammy Review) raised concerns over continuing widespread discrimination and socio-economic inequalities faced by ethnic minorities in the UK (UN, 2018a). The UK government was commended for its law and policies governing racial equality, along with its ‘innovative legal and policy framework applicable to hate crimes’ (UN, 2018a). Nevertheless, concerns were raised regarding the apparent impact on racial disparity of UK law and policy addressing immigration, counter-terrorism and criminal justice. The disproportionate effect of austerity measures upon black and minority ethnic (BME) communities (and women among them especially), were further areas of concern. Thus, it was argued that these ‘function inadvertently as a prime instrument of racial subordination’, thereby ‘exacerbating racial disparities’ (UN, 2018b). The UN Special Rapporteur observed that ‘the structural socio-economic exclusion of racial and ethnic communities in the UK is striking’, adding that ‘notwithstanding the racial equality legal framework… the harsh reality is that race, ethnicity, religion, gender, disability status and related categories all continue to determine the life chances and well-being in Britain in ways that are unacceptable, and in many cases unlawful’ (UN, 2018a: section B19). The Special Rapporteur consequently concluded by stating that the UK government ‘had much to do’ to address the structural forms of racial discrimination and inequality (UN, 2018a: section 65).

Political anxiety, social and ideological threat

Careful to acknowledge that no comparisons have been made in relation to the presence of illiberalism in other countries, and recognising Walters et al.’s (2016:9-10) observation that ‘compared to most other western jurisdictions across the world, the Government’s continued commitment to delivering an effective hate crime prevention strategy is highly advanced’, it is possible to conceive the emergence of the UK’s hate crime legislative and policy framework as evidence of moral progress. However, the apparent ineffectiveness of the approach, along with the wider issues of continuing widespread discrimination and inequality across the UK (as highlighted above), gives pause for thought. Indeed, taking the long view, it is evident that the UK government’s action to tackle racially (and later, religiously) motivated violence and discrimination may also be interpreted against a historical background of political resistance and racial, religious and class antagonism. Whilst this has been addressed more comprehensively elsewhere (Laverick and Joyce, 2019), it is argued below that a cursory overview of the historical, political and economic context in which the UK’s legislative and policy developments emerged lends support for a

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more nuanced interpretation, thereby raising important questions regarding the function of the current framework and the motivation that underpins it.

Despite its neglect within much hate crime scholarship, it is important to note that UK action to counter illiberal action originally occurred against a historical context that was characterised by long-established structures and patterns of hierarchy, inequality, discrimination and intolerance (Laverick and Joyce, 2019). Thus, evidence suggests that within Britain, racial and religious prejudice, discrimination and violence dates back to at least the sixteenth century. Scholars such as Tickner (2014:165) also observe that gender discrimination occurred from at least the sixteenth century and continued during the early stages of state formation and the beginnings of capitalism in Europe. Thus, scholars locate the emergence of racial concepts, religious discrimination and gender discrimination as inherent within the emergence of the European identity as white and Christian, and as central to the ordering and administration of Empire and, later, world order (Omi and Winant, 1994:61; Bunzl, 2007:9; Shilliam, 2017:286-289). Although a detailed examination of the history of British hostility towards immigrants (including Jewish, black, Asian and Irish people) remains beyond the scope of the present paper, scholars such as Law and Henfrey (1981), Visram (2002), Fryer (2010), Evans (2012), Ranasinha (2012) and Olusoga (2016) locate illiberal practices towards minorities within the background of British capitalism, plantation slavery and the slave trade, in addition to the European colonialist project and imperial expansion. Guha (2002:8 cited in Tickner, 2014:166) observes that gender, as well as race, was important in denoting difference ‘as Europe sought to identify itself against the otherness of a multitude of races, religions, languages and cultures’.

During the eighteenth and early nineteenth centuries, racial and religious violence and discrimination was often compounded by periods of economic strain and unemployment, revealing concerns about competition for scarce resources, population growth and threats to social and political order. Challenges were driven by black slaves, the poor white working classes and their supporters, who increasingly employed liberal ideas of freedom, democracy and equality in their attempts to secure political and social justice, both within the UK and abroad (Laverick and Joyce, 2019). Thus, as detailed by Visram (2002), Fryer (2010) and Olusoga (2016), whilst early progressive humanitarian action was taken within Britain to provide relief for the black and Asian poor, this was accompanied by repressive action to expel, restrict and repress such groups (Laverick and Joyce, 2019). It is notable, therefore, that such developments occurred against a background of political unrest in Britain. This initially included calls for universal suffrage, parliamentary representation and reform on the part of black and Asian communities and their white working class supporters. Such action was also accompanied by labour agitation and political action to address economic exploitation and welfare conditions across the British Empire and within British colonies. Thus, the nineteenth century witnessed ‘significant legislative provisions and repeated efforts to introduce access controls and sanctions to deter further immigration to Britain, in addition to efforts to expel undesirable, politically inflammatory and/or destitute Blacks and Asians’ (Laverick and Joyce, 2019:16). Illiberal action towards African, Asian, Irish, Chinese and Jewish people continued well into the twentieth century; this included employment and housing discrimination, disturbances and riots in British ports

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and cities, in addition to far right and fascist use of intimidation and violence (Laverick and Joyce, 2019:22).

Given this history, we argue that an appreciation of the wider historical, political and economic context, and an awareness of the particular events that prompted the government to intervene to produce legislation and policy, are important. We suggest that this is particularly so in relation to recent arguments regarding the apparently contradictory nature of the current anti-discrimination legislation and policy framework, which, as pointed out by commentators including the UN Special Rapporteur, coexists with discriminatory immigration legislation and race relations policies. As will be shown in this paper, a cursory look at the wider context in which key hate crime legislation and policy have been produced suggests that there is greater compatibility between immigration and access control measures and anti-discrimination measures than previously assumed, especially when framed in the light of the events preceding such action. Thus, whilst not denying the humanitarian motives of particular social actors (including particular political parties and individuals) when interpreting the evolution of the UK’s hate crime framework against the wider social and political environment, it becomes apparent that this context generated a complex tension between a perceived need to tackle the illiberal social, structural and institutional conditions underpinning prejudice-based action, and more pressing social control imperatives that aimed to secure social and political order. Over time and prompted by a range of specific trigger events, the need to address various forms of illiberalism (such as inequality, unequal opportunities, discrimination and prejudice) became seen as a means of securing wider social and political order goals, which were prioritised within a fluctuating policy framework that was still underpinned by modernist assumptions that equated social diversity with political and social instability (Laverick, 2016:176-179).

Political and social disorder and the development of anti-

discrimination measures

When reflecting on the passing of the Public Order Act 1936 (which has been widely regarded as offering protection against racist abuse and intimidation), it is important to observe that this legislative action immediately followed the ‘Battle of Cable Street’ in London’s East End, where more than 30,000 people congregated to prevent the passage of British Union of Fascists supporters at a demonstration (Roach Family Support Committee, 1989:197). Significantly, the Act made no reference to anti-Semitism and did not ban fascist organisations outright, serving instead to prevent street disorder from whichever quarter it emanated. Thus, the ban on political uniforms was as much directed at the Communists (‘Redshirts’ – not to mention the Social Credit Party, the ‘Greenshirts’) as it was at the fascists, and fear of uncontrollable public disorder that led to demands for a more authoritarian government was at the heart of the legislation. Moreover, the Public Order Act was passed during a particularly tense period of race relations in British history, which witnessed the proliferation of far right activism. Indeed, as was noted by Lord Elwyn Jones, the Act was passed to deal with ‘the threat to freedom posed by the Fascist use of intimidation and violence’ (Elwyn Jones 1985 cited in Laverick and Joyce, 2019:34). However, the failure to enforce the Act, particularly the provisions relating to the use of insulting and threatening behaviour, have led some commentators to question the ultimate

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goal of the legislation and raise the possibility that the preservation of public order remained the central consideration (Rosenberg, 1985).

Although there was some variation, extremist right wing groups espoused nationalist, white supremacist and racist ideology, seeking to end immigration and pursue a policy of repatriation. They opposed liberal democracy and civil and political liberties, and made immigrants scapegoats for economic hardships and cultural change. In Britain, fascist use of intimidation and violence coincided with the passing of immigration laws that created access control and citizenship restrictions and provided law enforcement agencies with increased powers of enforcement and surveillance. At the same time, minority communities were actively highlighting discriminatory treatment and harassment, drawing attention to the inadequate police response to racial attacks and harassment experienced by minority communities. In addition, this period witnessed the politicisation of immigration within parliamentary election campaigns and evidence of racial disparity in employment, housing and education (Laverick and Joyce, 2019). Consequently, it is noteworthy that the passing of the 1965 and 1968 race relations legislation (which introduced anti-discrimination laws), and the 1986 Public Order Act (which has been credited for legislating against incitement to racial hatred), along with positive action to alleviate racial disadvantage and racial discrimination and to provide equal opportunities, occurred at a time of increasing political agitation. These measures also occurred during a period of increasingly aggressive and confrontational political militancy, with self-defence, direct action and protests on the p

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