1

When Law and Hate Collide.

Modified Delphi Report 2013

The project is funded by the Daphne III Programme of the European Union.

The Daphne III programme aims to contribute to the protection of children, young people

and women against all forms of violence and attain a high level of health protection, well-

being and social cohesion.

Its specific objective is to contribute to the prevention of, and the fight against all forms of

violence occurring in the public or the private domain, including sexual exploitation and

trafficking of human beings.

It aims to take preventive measures and provide support and protection for victims and

groups at risk.

Dr Kim McGuire is the Research Associate on the When Law and Hate collide project,

Lancashire Law School, University Central Lancashire, Preston, PR1 2HE.

Dr. Michael Salter is Professor of Law at Lancashire Law School, University of Central

Lancashire, Preston, UK. PR1 2HE.

April 2013.

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Contents

Executive Summary ………………………………............................... 2

Results ..……............................................................................................6

Conclusion ……………………………………………………….……..25

Prepared by „When Law and Hate Collide‟ UCLan 2013.

Executive Summary

Between October 2012 and March 2013 a selection of academics, practitioners, and others

with expertise in hate crime, from the UK and the wider EU community were invited to

participate in a Modified Policy Delphi study in an online environment. The online

environment was chosen as an asynchronous environment, to enable as wide participation as

possible,1 and because computer based Delphi studies remove the necessity for the iteration

process of (usually) 3 discrete rounds. The interim report of October 2011 (prior to Prof

Salter and Dr.McGuire joining the project)2 had stated that the Delphi was intended to be

conducted live, rather than a multi round iteration Delphi. The online version that Prof Salter

1 Maurizio Bolognini (2001), Democrazia elettronica. Metodo Delphi e politiche pubbliche (Electronic

Democracy. Delphi Method and Public Policy-Making) (in Italian), Rome: Carocci Editore, ISBN 88-430-2035-8. A summary is also in Jerome C. Glenn, Theodore J. Gordon (eds) (2009), The Millennium Project. Futures Research Methodology, New York: Amer Council for the United Nations, ISBN 978-0981894119, chap. 23. 2 Progress Report JLS/2009-2010?DAP/AG/1221 31

st January 2011- 31

st October 2011.

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and Dr.McGuire initiated allowed a process of continuous interaction.3 Participants could

review others‟ comments and amend their own as necessary. The timing of the Delphi study

was dependent upon material from the partner organisation, Frankfurt, explained below.

Participation was by invite only, but participants could choose to be anonymous during the

process. The Delphi method is traditionally based on the assumption that group judgments

are more valid than individual judgments. However, this may tend to exclude valid

„minority‟ opinion, and the democratic potential for online Delphi to include a wide variety

of participants and views has been acknowledged within this study. 4 The results below have

therefore referred to such minorities where the issue requires further consideration.

The list of eighteen initial questions was devised following a thorough review of the

literature, interviews with those involved in hate crime at various levels, and the focus group

with academics which took place from the 12th to 14th February 2012, at the Frankfurt Hate

Crime Symposium “When Law and Hate Collide”. The results of the focus group were sent

to UCLan in October 2012. Experts in the field of hate crime research participating in the

focus group came from various countries, and included Mark Coester, Anthony Mark Cutter,

Edward Dunbar, Bastian Finke, Dirk Mitzloff, Helmolt Rademacher, Anneli Svensson,

Ulrich Wagner, Kieran Bellis, Caroline Bonnes, David Brax, Michael Fingerle and Christian

Munthe. The focus group results will be discussed elsewhere in the EU Report, by the

3 See Murray Turoff, Starr Roxanne Hiltz, "Computer-based Delphi processes", in Michael Adler, Erio Ziglio

(eds.) (1996), Gazing Into the Oracle: The Delphi Method and Its Application to Social Policy and Public Health, London: Kingsley Publishers, ISBN 978-1-85302-104-6op. cit. 4 An example of e-democracy application is DEMOS (Delphi Mediation Online System), whose prototype was

presented at the 3rd Worldwide Forum on Electronic Democracy, in 2002.

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Goethe university project team. The results of the interviews are incorporated into the articles

and reports produced by the lead and partner organisations.

Whilst the result of the focus group helped form the questions for the Modified Policy Delphi

Study, which were then devised by UCLan, these were altered before the Delphi study began

following feedback from the partner organisations in Goethe and Gothenburg universities.

The Modified Policy Delphi study was designed to enable engagement with key academics,

stakeholders and experts engaged with Hate crime across the EU and beyond. The online

environment removed the need for a series of iterations, whilst enabling various questions to

be considered and commented upon. The Delphi methodology is particularly effective when

dealing with sensitive issues because of its anonymous nature (although participants did not

always choose to be so defined). Anonymity is also seen as important for reducing the

contribution of dominant individuals. The Delphi technique is a widely used and accepted

method for gathering data from respondents within their domain of expertise.

The ultimate aim in this project was to achieve a convergence of opinion on Hate Crime. The

Delphi process enabled an initial wide range of alternatives, and explored or exposed

underlying assumptions. The Delphi technique obtained consensus of the most useful

probable future policy issues by building upon responses and eliminating lines of enquiry

during the process. Another aim was to structure and encourage discussion. Feedback of the

responses enabled participants to reassess their previous replies. The core output outlined

here is intended to help develop and implement policy guidance and best practice guidelines

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to all EU Member States with regards to Hate crime and any legislative frameworks that have

been identified through the Delphi process. This is important as guidance or guidelines issued

by the EU provide elements of legal certainty for legislators, policy makers and citizens of

member States by giving a shared definition or framework, and perception of what is

currently considered hate crime.

The initial range of eighteen questions covered a wide range of topics. Since the anticipated

response rate for online surveys is 10%, circa 180 potential participants were initially

contacted. 30 responded from the original invitation as willing to participate and 20 actually

joined as members to an online site. Further approaches to academics and other experts,

including the police and judiciary were undertaken to achieve a wider participation.

However, research suggests that the number of participants has no consistent relationship

between the quality of the responses and the overall effectiveness of the Delphi study. 5

5 Harold A. Linstone, Murray Turoff (1975), The Delphi Method: Techniques and Applications, Reading, Mass.:

Addison-Wesley, ISBN 978-0-201-04294-8

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Results

There were varying levels of involvement from participants, with some more active than

others, and some questions generating significantly higher numbers of responses.

The questions that stimulated most debate tended to be those involving some philosophical

and linguistic definition, not least when this was seen to impact upon legal interpretation,

recognition and legislation. The responses have been developed below to enable some policy

guidance to be derived from them.

Question 1: What exactly does the attitude of "hate" signify in the idea of "hate

crime?"

This generated a wide range of often highly emotive responses. Many felt that the phrase

was unhelpful at best, and potentially harmful to the identification, legislation and

prosecution of what might be better phrased as „bias crimes‟. Comparison with results to

focus group and interview questioning revealed similar interpretations.

1. Results imply that the common usage of the phrase „hate crime‟ is unhelpful at best,

and potentially conflicting with identification of bias crimes. The term was seen as

misleading because of its psychological and emotional associations. Since the term „hate‟ is

not used in the legislation, and nor does the emotion need to be present, it was felt that

emphasising „bias‟ would be preferable. Moreover, the need for more widespread publication

and awareness raising of the legislation would be beneficial. The fact that differing states

have different legislation was raised as an issue, but conceptually, the notion of bias exists

within all participating states legal framework, howsoever defined in practice.

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Below are some quotes from the survey regarding this question:

„ Hate is an emotion and not so much an attitude. Hate crimes are not committed out of the

offenders emotion "hate" (even though hate might be involved in hate crimes just as it is

involved in many other crimes) but out of his/her prejudice/bias towards someone that

represents a certain social group .‟

The fact that „hate‟ does not occur within the legislative framework was noted, but popular

perception links the legislation to notions of „hate‟.

The use of the term “Hate crime" was felt to potentially imply „...that it is simply the emotion

that is criminalized. That would of course run against very basic principles of morality.

Persons can be held responsible for their actions, not for their emotions.‟

Hence legal complications were felt to potentially exist, despite the term „hate crime‟ being

absent from the legislation.

Acceptance of the definition of hate crime as an existing recognised crime, but with a bias

motivation, and for which an enhanced sentence could be given did exist, however, „... the

only way to define "hate crime" is as a crime that would be punishable anyway, but for which

a particular "hate" motivation could constitute an aggravating circumstance.‟

However, the potential for „ discrimination‟ within the legislation was raised. Some argued

that „...if particular groups are singled out as potential "hate" victims, whereas others aren't,

then they receive better protection than the rest of society. In the end, this risks creating a

double standard.‟ In response it was posited that „...It thus seems best not to identify

particular victim groups, but to keep the definition more general.‟ A minority felt that an

aggravating factor could be „...driven by particularly evil motivations.‟ However, „evil‟ was

not defined.

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Question 2. What sort of social groups should be targeted for protection in concrete

policies and legislation, and on the basis of what particular rationale or rationales?

The need for some firm definition of categories, even if conceptually, that would be protected

by such legislation, was debated, and seen as crucial by many. However, some felt that a

wide conception including everyone, based upon respect for human dignity per se, but with

some exclusions for chosen groups, for example Goths, would be preferable. A minority

opted for „Any minorities, not just ethnic or linguistic, but also life-style, sexual and other. „

The potential for thus including virtually everyone was noted, and then linked to aggravated

factor enhancing sentencing rather than focusing upon specific attributes for protection. The

reason for such wide inclusion was stated in wider societal terms as „…to build tolerant

society, where people‟s personal freedom is protected regardless of their personal or other

characteristic.‟

Others focused upon creating categories to try and define groups requiring protection via

legislation. The following three were given:

1. These attributes should be protected that (co-)create the identity of a person (in a very

psychological understanding).

2. The social group must have a documented history/context of discrimination in the specific

country.

3. The victim of a specific hate crime must have been exchangeable. Hate crimes are not

against an individual victim that the offender personally knows but against victims that

(assumed) represents the whole group.

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Whether the above would include self-chosen groups, for example, „life style, Goths or

punks‟ was debated, with some arguing for „Any minority, including life-style, dress-code

minorities.‟ The main reason for suggesting such protection was the need to build a tolerant

society respecting personal freedom.

Question 3: Is it consistent with a sound Hate Crime Policy at the EU level to allow

different member states to protect different types of groups, for example in legislation?

For future policy implications it was felt important that the EU should be able to work

towards uniformity in agreeing on which groups should be protected. However, the difficulty

that the existing system has created, with the criminal law falling within the „shared‟

competences between the EU and the member states was noted. Some re-negotiation of the

Treaties was likely to be needed to make this process truly effective and the legislation

sufficiently harmonised. Whilst some harmonisation has resulted due to the emphasis upon

race and religion in the Additional Protocol, extending this would be significantly more

problematic.

For some, the prospect of hate crime legislation continuing to diversify within the Member

States, due to the fact that the „constellation of social groups and its balance is different in

each country/society‟ was acceptable. Therefore the „… attributes in hate crime laws (that

should reflect the social group constellation) can be (slightly) different in different countries.‟

Similarly, „… given the different social conditions applicable in different countries causing

different types of groups to be vulnerable to hostility and in consequent need of protection‟,

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and „… criminal laws are in part expression s of national cultural traditions and reflect

specific historical experiences and concerns.‟

Also, much was felt to depend upon the efficacy of existing legislation in each state, and its

ability to deal with „…these kind of crimes (without calling them hate crimes)‟ if successful,

„… there would be no reason to add/delete attributes or groups and/or change the whole

concept.‟ In contrast, others felt that „Equality before the law means that all should receive

equal protection‟, although comments upon this noted that this „… ignored the fact that to

achieve equality often requires „specific and different treatment‟. The difficulty of varied

notions of „social values‟ in Member States may preclude attempts at uniformity, but it was

argued that joining the EU should entail some acceptance of conformity, - as occurs with

regard to human rights records at present.

Question 4. How should the construction of Hate Crime policies deal with conflicts

between basic considerations, for example: groups that are targeted or harmed by Hate

crime may be not very large, and therefore a minor concern from a social order and

stability perspective; or not very disadvantaged and therefore not a priority from the

perspective of inequality or fairness?

It was agreed that „Laws and policies are not God given… They are always subject to societal

discussion, conflict/agreement and change. If a society goes through the process of discussing

a relatively new crime category such as hate crimes (or think about cyber crime and other

new phenomena) it is – in the case of hate crimes – crucial to define which social groups to

include and which not.‟ Despite current emphases it was argued that „Order and Stability is

but one factor in the overall policy mix and should not be given priority‟.

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It was felt that one of the functions of criminal law is to „… embody values that support

public interest. One of such values is tolerance and eradication of discrimination… (and thus)

all vulnerable groups should be protected.‟ The spectre of freedom of expression was raised,

and it was argued that „… a proportionality principle so that the complexity and interference

with free speech concerns involved in legislation should be balanced against the scale of the

problem or harm against which it is sought to provide protection or deterrence …‟

Question 5. Why should certain crimes involving a discriminatory motivation or

element be singled out for special treatment?

The premise that such crimes should be singled out because of their perceived „impact on a

society as a whole (the message character of these crimes) was a major consideration.

However, the fact that „…harsher punishment (meaning more jail/prison time) does not make

a criminal (in almost all cases) a better person and much worse: the opposite is mostly true‟,

was posited as a reason or not introducing enhanced sentencing. A complementary mixture of

harsher punishments (meaning longer incarceration) or harsher "social punishment" such as

therapy, compensation etc. based upon „the tradition of the different societies‟ was offered.

Question 6. What possible policy responses and solutions to ‘hate crime’ can be

formulated?

Policy responses to „hate crime‟ interestingly focused upon prevention and early intervention,

rather than upon sentence enhancements. The introduction of primary programs that focus

on children and the early development of prejudice, bias and violence (for example in pre-

school and school, in families and communities) was seen as potentially highly beneficial and

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probably cost effective if compared to incarceration. Programmes for „… persons at risk

(for example for right wing youth groups) and generally prevention strategies that focus on

the society as a whole (information, education, counselling), were highlighted.

Restorative justice initiatives, if carefully handled, were felt to offer possibilities for

reducing recidivism, and were seen as potentially positive for victims and perpetrators.

Other alternatives to harsher punishment also suggested „… prompt prosecution and

sentencing (maybe more important than harsher punishment)‟. The results of the working

group for the Federal ministry of Justice in Germany were suggested to illustrate this issue.

The results (in German language) can be found at :

http://www.kriminalpraevention.de/arbeit....hate-crime.html

and in English at : http://www.kriminalpraevention.de/downloads/english/01DFK-Survey-

short.pdf

Question 7. How do you see the relative roles (if any) within legislation for policies of

retribution, prevention, monitoring, rehabilitation and restorative justice?

It was felt that the relative roles would depend upon the particular circumstances within

which the crime was committed, not least the geographical and legislative.

As with question 6 above, the role of education, starting from the primary schools was felt to

require a much bigger preventative role by teaching inclusiveness, tolerance, and acceptance.

A more integrated response with national non-governmental reporting agencies, and greater

recognition and awareness raising of their role was felt to be needed.

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Question 8. Is there an argument for removing hate crime specific legislation in favour

of sentencing guidelines for judges that provide for a specified sentencing "uplift" in

cases aggravated by a proven discriminatory intent?

Some argued for leaving countries free to define „… law and conflict resolution to find a

socially accepted way of implementing such laws. If this is by introducing new hate crime

laws or sanctioning guidelines for the judges – is (acceptable)‟. This was not seen as

preferable to or worse than the existing situation.

However, there was greater consensus around the perception that „… in Europe, (if) the

European Parliament asks its member countries politely to think about introducing such laws,

sanctioning guidelines or even discussing these new ideas the member states often tend to

respond in general in two ways:

1. We have no problem whatsoever and even if so

2. We have already done everything to sanction such offences satisfactorily. One argument

then is: our judges already have the instruments in sanctioning such offences

harder/appropriate. And then nothing might change.

Most consensus therefore felt that „…there is certainly room for rationalising the list of

offences for which hostility is an integral aggravating feature‟, and „In order to successfully

combat hate crime, its visibility must be first addressed. This might be better achieved by

specific legislation that „singles out‟ this type of crime.‟

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Question 9. Are there other alternative legal responses that could be worth trying?

Apart from sentence enhancements or specific legislation, or general aggravated

circumstances, Restorative justice measures were the most widely cited, or those which were

used in a UK project named „Smile Mediation Ltd‟ which was a small scale project targeted

at specific types of perpetrators, with the aim of raising offenders‟ awareness of the impact of

racially aggravated crimes on their victims.

Offenders who commit racially aggravated offences are referred by Lancashire Police to the

„Smile Hate Crime Awareness Programme‟ as an alternative to prosecution. Failing to

complete the programme will normally lead to prosecution.) There is the potential for the

programme to be available as a condition of a community order following conviction, or as a

requirement of supervision on release from custody.

It is a reformative programme rather than restorative justice, although practitioners referred to

it as Restorative Justice and it is conducted by Smile mediators. There was, however, no

mediated communication with actual victims or representatives of victims or community

groups. It was, however „underpinned by a victim-centred approach‟ – communication

between „mediators‟ and offenders is aimed at getting offenders to understand and empathise

with the experience of victims. It could be said to be a reformative programme with

something of a restorative flavour.

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Question 10. Are there lessons to be learned from how hate crimes are defined and

responded to by different EU states?

The responses acknowledged that each state has its own particular and cultural problems

regarding hate crime. As above some felt that it would be preferable to allow different states

to address their own unique problems and situation. However, the reporting, recording and

mapping of legislation in practice is not currently sufficiently robust and nor have

longitudinal studies been undertaken, to enable any firm comparisons of efficacy to be made.

Equally, it was argued that some situations may be unique – although conceptually „bias

crimes‟ were felt to contain sufficient similarities to enable comparisons to be made if the

data existed, and if such a „… common overlapping core‟ could be identified.

Question 11. What would a sound system for monitoring and evaluating hate crime,

valid within the EU look like?

A sound monitoring system was felt to require the current laws but with less reservations, to

enable meaningful comparisons to be made. Furthermore, the current under-reporting would

need to be addressed, perhaps by some sanction for non-submission of data, or funding

dependent upon compliance. More unified criteria may encourage better reporting.

Question 12. What would a generic conceptual framework of ‘hate crime’ applicable

across the EU, involve?

Whilst difficult to imagine, it was accepted that a generic conceptual framework would

possibly need to function as per the criteria given at question 2 above.

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Question 13. Does hate crime affect social cohesion stability? And if so, do the current

laws address this effectively, or merely add to the social instability and division? Or

perhaps both in differing situations?

It is widely argued and believed that „Hate crimes concern the balance of the social groups

within a society (you could also say: the fabric of modern societies) and therefore hurt more

than "just" a single individual victim but have an impact on a society as a whole‟. It is widely

argued that such crimes „… send a message of fear to the whole social group with all known

consequences, for example: feelings of fear, avoidance of certain areas/places etc.)‟, and this

is supported by criminological, victimological and historical research. Consensus agreed that

such potential is not being effectively addressed by current legislation. Some argued that the

current legislation was itself divisive and potentially a political weapon that could create fear

and discrimination.

Question 14. Some argue for the "symbolic effect" of the hate crime laws being

important over and above any practical results – do you see this as either a significant

factor or justifiable?

As per the responses to question 13 it was felt that these crimes are seen as highly symbolic

in the messages they send to various communities and to individuals. In the UK policy in

practice appears to accept this, since the effect on the individual can be discounted if it

appears to be counter-intuitive – for example if the individual is particularly robust in their

response. The laws are therefore claimed to be symbolic in that they are sending g a message

to others that these crimes will not be tolerated. How widely individuals and groups are

aware of the legislation, and thus of its symbolic message is however, debatable and requires

more publicity and awareness raising.

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Moreover, laws are not always static, and the changing nature of these, and the inclusion of

different groups, either within the legislation or within the recording of incidents or crimes,

may lead to some confusion and/or dilution of any symbolic message. The example of

Germany, where many laws have been enacted or abolished in the last 50 years just because

the time was right/time had changed/people were not happy with specific laws

anymore/people were calling for new laws etc., was given.

Defining the practicality of a law was seen as complicated: depending „…not only on

empirical evidence but also on the question of what society wants a law to obtain. For

example: If a hate crime law is there to punish an offender more harshly - it seems to be

pretty practical in result. If a hate crime law is there to deter someone from committing a hate

crime – it might be practical depending on empirical research we would need to measure this

(at least statistically). The current evidence suggests these laws do not achieve this.

Similarly, if a hate crime law is there for society to prevent future hate crimes – it also might

be practical depending on criminological research, although current research suggests it does

not reduce recidivism. If a hate crime law is there to give society legal security – it might be

practical depending again on survey findings.

For many the debate about hate crime laws being symbolic vs. practical is often political-

tactics driven. To really answer the questions concerning the real success of a law (and not

just the hate crime laws) would need much more empirical research. Current research

suggests the laws do not meet their objectives, and public awareness is too limited to suggest

a wide symbolic effect taking place.

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Capturing the power of „symbolic effect‟ might make the policy/legal responses to hate crime

more effective, as it may enhance the educational effect and social impact of such

laws/polices. There will be some who will view the laws in a negative light.

Question 15. Is there evidence for a greater harm stemming from hate crime victims as

distinct from similar offences lacking a discriminatory motivation, and if so, should

policy extend beyond the perpetrator?

Empirical research was quoted that argued that an offence against a person because of an

attribute that creates the identity of this person and that represents a social group that has a

history of discrimination and violence hurt not only the single victim more (concerning the

physical and psychological damage) but also sends a message of prejudice, hate and fear to

the whole social group. This again has an impact on the society as a whole. The question was

thus seen as requiring a response to this empirical evidence.

A significant minority argued that the evidence is mixed but overall there is some in

support of greater harm but that these may be exaggerated for political effect.

Regarding extending beyond perpetrator, it was noted that current UK law encompasses

accessories and instigators, and indeed, - the general law on both accessories and inchoate

crime is now very wide indeed and extends liability to a wide range of persons beyond actual

perpetrators

Question 16. What would an improved system of support for victims look like?

Discussion considered not only victims but also support for vulnerable defendants.

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In the UK, it was noted that „toolkits‟ for advocates dealing with vulnerable witnesses,

victims and defendants had been produced. These are available at

http://www.theadvocatesgateway.org/toolkits

An improved system of support for victims was also argued to require something akin to that

provided to victims of human trafficking, covered by the EU Directive on Human

Trafficking. 6 Indeed, failure to make such support mandatory and explicit was seen as a

weakness in current legislation, although the potential cost of this was noted.

Recent developments in the UK were suggested – for example „The Advocate‟s Gateway‟

which launched on the 26th

April 2013, and which gives free access to practical, evidence-

based guidance on vulnerable witnesses and defendants.7 Following the RAISING THE

BAR report by The Advocacy Training Council, The Advocate's Gateway project was

founded in order to change criminal justice practitioners' approaches to vulnerable witnesses.

The Advocate's Gateway website will include reports, toolkits, training materials as well as

the Criminal Bar Association‟s training film “A Question of Practice”.

In 2013 the Department of Justice, Northern Ireland, is piloting a scheme of Registered

Intermediaries to assist vulnerable witnesses to communicate with those in the criminal

justice system who question them. The Northern Ireland Criminal Evidence (Northern

Ireland) Order 1999 (the 1999 Order) recognises that certain witnesses are „vulnerable‟ and

6 DIRECTIVE 2011/36/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 5 April 2011on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA 7 The Advocate’s Gateway is hosted by the Advocacy Training Council and is managed by the ATC’s Vulnerable

Witness Management Committee. The Committee is chaired by Professor Penny Cooper and includes representatives of the Advocacy Training Council, Judicial College, Law Society of England and Wales, Solicitors Association of Higher Court Advocates, Criminal Bar Association, Crown Prosecution Service, Chartered Institute of Legal Executives, Ministry of Justice as well as Joyce Plotnikoff and Richard Woolfson of Lexicon Limited

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makes them „eligible for assistance on the grounds of age or incapacity‟ (see article 4 of the

1999 Order). 8 This may be a useful precedent, but will need further studies to test its

efficacy.

Regarding „vulnerable defendants‟ :in the UK apart from section 47 of the Police and Justice

Act 2006 which allows certain accused to giving evidence through a live link, there is no

legislation in force which permits the use of special measures for defendants. Section 104 of

the Coroners and Justice Act 2009 (for Article 12 of the Justice Act (Northern Ireland) 2011),

provides for examination through an intermediary of a vulnerable accused, but it is not yet in

force.

The lack of a statutory framework has not however prevented the growing number of

occasions where judges have allowed defendants to be assisted by an intermediary,9 the order

being based on the court‟s inherent jurisdiction to ensure that the defendant has a fair trial,

pursuant to Article 6 of the European Convention on Human Rights. The use of

intermediaries (note they are classified as non-registered intermediaries as they operate

outside the Ministry of Justice Witness Intermediary Scheme) for defendants in England and

Wales was established even before the Divisional Court considered the matter in C v

Sevenoaks Youth Court [2009] EWHC 3088 (Admin). The recent case of R v Dixon [2013]

EWCA Crim 465, where the Court of Appeal highlighted the responsibility of trial judges to

actively ensure the effective participation of vulnerable defendants was noted. 10

A respondent mentioned the Australian Institute of Judicial Administration Conference on

„vulnerable witnesses‟ – a quote is produced below:

8 http://www.theadvocatesgateway.org/intermediaries

9See http://www.theadvocatesgateway.org/cases for several recent examples of cases with ‘vulnerable

victims and defendants in the UK. 10

For a detailed discussion on intermediaries for defendants see P Cooper and D Wurtzel, (2013) ‘A day late and a dollar short: in search of an intermediary scheme for vulnerable defendants in England and Wales’, Criminal Law Review (1), 4 – 22.

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"The use of intermediaries has introduced fresh insights into the criminal justice process.

There was some opposition. It was said, for example, that intermediaries would interfere with

the process of cross-examination. Others suggested that they were expert witnesses or

supporters of the witness. They are not. They are independent and neutral. They are properly

registered. Their responsibility is to the court …their use is a step which improved the

administration of justice and it has done so without a diminution in the entitlement of the

defendant to a fair trial." 11

Question 17. What is the significance of listening and learning from the lived

experience of individuals affected by hate crime?

The experts agreed that the needs of victims of hate crimes do tend to be special and

different from general victim support and should not be neglected. The wide variety of

differing types of hate crime and the responses to these would be lost if the lived experiences

were not considered by discussion with those affected. Some experts had experience of

direct contact with victims and all highlighted these aspects. There was some discussion

regarding individual responses and in particular do hate crimes hurt more- but the overall

agreement was that societal effect was an important consideration, not just that of the

individual (who may or may not be particularly robust in their own individual response.)

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Quoting the Rt. Hon. The Lord Judge, Lord Chief Justice of England and Wales, 7 September 2012, at the 17th Australian Institute of Judicial Administration Conference in ‘Vulnerable Witnesses in the Administration of Criminal Justice’.

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Question 18. What difficulties can arise whenever the voice of affected parties such as

victims of hate crime is not allowed to be heard during the legal and other official

responses to hate incidents and crimes?

It was felt important to allow victims the possibility of being heard to avoid revictimisation,

although how this would occur in such circumstances was not made explicit. The fact that

victims‟ voices could be misinterpreted was raised. Others focussed upon only the individual

and argued that prosecutions should not occur if the victim was reluctant to do pursue this.

Conclusion

It is important to remember that due to the self-selecting nature of the sample it cannot be

guaranteed that the participant academics and other experts in the field of hate crime are

necessarily representative of all within their field of expertise. Moreover, most tended to be

Western or Northern European, despite invitations being sent to a wide variety of potential

participants. The response rate does, however, mirror those regarding the reporting of hate

crime within the various EU states, undertaken by the OSCE and FRA, and Human rights

first. 12

Clearly the above illustrates broad areas of consensus with some areas of

disagreement.

However, the results of this Modified Delphi study did offer areas of future policy guidance,

and areas where further research is necessary, for example in improving monitoring and

12

http://www.osce.org/odihr/66388 Making hate crime visible in the European Union: acknowledging victims' rightshttp://fra.europa.eu/en/publication/2012/making-hate-crime-visible-european-union-acknowledging-victims-rightsInadequate Hate Crimes Reporting Undermines OSCE Report

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reporting in order to evaluate initiatives. Findings echoed the academic research and tacit

information and advice existing in practice, but which is rarely collated in a single report.

The difficulties of singling some but not all possible groups suggests that ant reformed law

needs to avoid itself being discriminatory, and yet still formulate a coherent definition of

"group" in order for a hate crime to be identified as such, not least for the purposes of

recording and public education. Our results brought out support for aggravated offences as

well as enhanced sentencing that is made clear in court and expressly recorded. Issues of

freedom of expression were not afforded a strong priority relative to hate speech. There was

support for enhanced victim support provisions. Also the respondents recognised that EU-

harmonisation was challenged by different national traditions founded upon different

presuppositions and historical experiences.

The results of this modified Delphi study have been incorporated into our suggested

legislation, and State of the Union Report, although this covers a wider range of issues than

those addressed by the respondents.