The Role of Aggravated Offences in Combating Hate Crime – 15 years after the CDA 1998 – Time for a change?

Abstract

The racially aggravated offences created by the 1998 Act (later extended to religious aggravation) were based on a rather arbitrary selection of underlying crimes and have proved difficult to interpret and apply for a number of reasons. Moreover, the relationship between the aggravated offences and the more general duty to increase the sentence for any offence where there is racial (or religious) aggravation is problematical. This is illustrated by the common misunderstandings of the case law on the degree of mutual exclusivity between the crimes underlying the aggravated offences and the more general aggravated sentencing provisions. In the context of the question referred by the government to the Law Commission, as to whether the aggravated offences should be extended further to include a number of other grounds of aggravation, it is argued that this would be counter-productive and that their further extension would lead to even greater confusion and complexity. It is suggested that the preferable course would be to abolish the aggravated offences and to focus on a broader and better articulated sentencing provision of general application which would be all the more effective without the complications of its uncertain relationship with an anomalously selected group of aggravated offences.