Those who use hate speech need education not court fines

If you had made a racist remark (eg “go back to your own country”) to someone who annoyed you when you were drunk, would you say or admit that you “demonstrated hostility to the victim based upon their race” and were “motivated (wholly or partly) by hostility towards persons of a particular race”? Probably not. Lots of people say racist things without seeing themselves as racist. Any racist speech is clearly wrong and needs to be addressed, but how do we get those who make racist remarks to understand the harm they cause and change their behaviour?

Most people from minoritised communities have been subject to at least some racist remarks in their life. Most don’t report them to the police most of the time. They may not know that the racist remarks constitute a crime, or not want to criminalise the person who made them. But if the remarks cause or are likely to cause harassment, alarm or distress then they are crimes, and if they are “motivated by hostility” to a particular group (race/faith/LBGTQ+/disability) they are hate crimes in England and Wales. And thousands of people are convicted for hate crimes over things they’ve said. (You can also be accused of hate crime if you physically attack someone because of your hostility to their identity).

Ever since the murder of Stephen Lawrence, victims’ groups have been focussed on getting the police and the courts to take hate crime seriously. They have succeeded in getting it treated in some ways more seriously than any other crime. Racist speech causes great harm, so victims groups’ focus on prosecution is understandable. But does it achieve what victims want??

Someone who commits a one-off hate crime which is about something they said may well be convicted in court, and for this type of crime their sanction will be to pay a fine and compensation. They will also get a criminal record. Nothing will be done to address their attitudes or behaviour, and the need to pay a fine may just make the defendant angrier. However much the police may wish to, it is very difficult for them to resolve the case out of court using a sanction like a community resolution or a conditional caution because it’s against prosecution guidance. Hate crime is the only type of crime where the police do not have discretion to use a conditional caution – a sanction meted out by the police out of court. They can opt to use a conditional caution for a serious sexual assault but not for racial abuse. (In reality, they would only use a conditional caution for serious sexual assault if the victim were adamant they would not give evidence in court).?

The police and some others have long advocated that some instances of hate crime, like racist remarks, would be more effectively dealt with out of court, whether by rehabilitative programmes or by restorative justice (where the person who commits the crime apologises to the victim and offers to make amends). And the Crown Prosecution Service (CPS) agreed to allow three forces to pilot a hate crime conditional caution. The evaluation of the pilot has just been released…a year late, but better late than never.?

Those referred for this hate crime conditional caution first need to admit to the offence. They then complete a programme which includes an interview with someone from RISE Mutual (the not-for profit company running the programme) and three online workshops with other people accused of the same crime. For an out of court programme this is pretty intensive and gets participants to confront the harm caused by their behaviour. To be honest, it would be much easier (finance permitting) for those accused to pay a court fine.? But getting people to do the programme is far more effective than paying a court fine. The evaluation found that course participants had a pretty low rate of reoffending and most realised that their behaviour was unacceptable.?

One of the problems the programme faced was getting the police to refer people and to get them to complete the course. It’s not surprising the referral rate was low given the criteria set by the Crown Prosecution Service (CPS) – people admit to all kinds of crimes but it’s a high bar to admit to being “motivated by hostility” to people who are black/disabled/Jewish etc. Those who don’t admit they were motivated by hostility (who might most benefit from the course) had to be prosecuted. It’s also quite an ask to get people to meet online with others to discuss their hate crime.?

Despite the barriers, the course was successful for those who went on it and has the potential to do far more good in terms of reducing verbal abuse than a court fine. So why, more than a year after the evaluation report was finished, are there no signs that such conditional caution programmes will be extended throughout England and Wales? Maybe the CPS and victims’ groups are concerned about the relatively low take up? Maybe they still feel only a court sanction represents taking racist/ableist/homophobic abuse seriously?? But if victims knew that the person who abused them could either go to court and, probably, be fined but not have to do anything to address their behaviour, surely most victims would go for the option which is most likely to stop that crime happening again? Let’s hope victims’ views are properly canvassed.

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