Can you solve hate crime with a hashtag?

As part of the Crown Prosecution Services’ (CPS) week long campaign to encourage the reporting of hate crime offences, three press statements were released on Monday (21 August) which the Director of Public Prosecutions (DPP), Alison Saunders stated will provide prosecutors with guidance for achieving justice for victims. It will also inform both victims and witnesses as to what they are to expect from the CPS once they have reported a hate crime. Saunders has claimed that hate crime offences are a priority area for the CPS, especially in the current climate where hate crime offences are increasing. Statistics published by the Metropolitan Police and Greater Manchester Police show that the number of reports of religious hate crimes increased significantly following the most recent terror attacks in London and Manchester.

The police and CPS have agreed on the definition for identifying a hate crime as being “any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or a person who is transgender or perceived to be transgender”. There is currently no legal definition of ‘hostility’, so the CPS will use the everyday meaning of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. This subjective approach indicates that there is no easily defined threshold of conduct that might result in a prosecution, and the CPS are encouraging not only the victims of hate crimes, but those who witness these types of offences to report them. This is a worrying development and a promotion of uncertainty in the criminal law which could lead to serious injustice, particularly where a complaint is made by a person who is not a victim of the alleged offending.

The three statements published this week deal with racist and religious hate crime, homophobic, biphobic and transphobic hate crime, and disability hate crime and other crimes against disabled people. Each statement sets out the current law and offences available, along with guidance as to the types of offending behaviour that satisfy the elements of a hate crime, how to report it, and how these types of offences are committed through the internet and social media. The CPS have detailed the approach they will take when investigating these crimes, for example seeking information from other agencies such as relevant community groups, and how charging decisions will be made. The statements also contain information relating to the bail decisions of a defendant, the prosecution and sentence, and the options regarding withdrawing a complaint.

The new documents which have been produced and circulated on numerous media platforms, contain a very limited amount of new information, and there has been no change to legislation in light of the new guidance. One point which the CPS has been keen to highlight as a new proposal is the way in which offences committed online will be treated the same as if they were committed offline. This approach, teamed with the broader definition of a hate crime, has already raised concerns as to whether our already overburdened and understaffed police forces will now have to face investigating far more complaints.

As part of the campaign, ‘#HateCrimeMatters’ has been coined on Twitter, with a view to encourage people to come forward and report hate crime. The ‘Twitterati’ have engaged in conversation about the topic, and the hashtag, which was developed to encourage complaints, has done so, but perhaps not in the way the CPS envisaged. Amongst the top tweets utilising the hashtag includes “if #HateCrimeMatters the Quran should be banned” and “under the control of the thought police”, along with allegations that the lower threshold will now suppress free speech.

The broader definitions of a hate crime and the inclusion of words such as “unfriendliness” and “dislike” in the agreed definition of hostility has sparked discussion as to what will be deemed to cross the threshold and result in a prosecution, and whether it’s likely to encourage trivial allegations. It is also somewhat ironic that the hashtag, created by the CPS, is creating a further platform for the types of offenders that the campaign is seeking to drive out. Some may argue that this illustrates the need for stricter policies, or if these are the types of comments that should be dealt with by Twitter internally.

The development of an internet ombudsman to deal with abuse complaints has been discussed by the Department of Digital, Culture, Media and Sport since the release of the CPS press statements. This is similar to the ideas that are already being developed in both France and Australia where agencies act as an independent body that will mediate between members of the public and social media firms. This would allow for only the more serious offences to be dealt with by the police and for the social media sites to deal with the initial complaints of abuse themselves. This also brings into question the extent social media companies are being held accountable for policing their platforms, and the efficiency of the complaints procedure. It may be more beneficial that these companies are encouraged to invest more funding into their own safety and reporting procedures, rather than to rely on the overworked resources of the police.

So it leaves the question as to whether this week long campaign is necessary, or whether the CPS already have enough legislation and guidance in place that they are able to satisfy the public concern that hate crime is dealt with sufficiently.  For example, the recent prosecution of Rhodri Phillips who was sentenced to 12 weeks custody rather than 8 weeks as an uplift of his sentence pursuant to s146 of the Criminal Justice Act 2003, following a deluge of racial abuse towards Gina Miller on Twitter. The uplift was applied for by the Prosecution and agreed by the magistrates. It is evident that the CPS are already dealing with hate crimes in a sufficient way prior to this week’s campaign, and appropriate sentences are being passed at the relevant times. There is a danger that the result of this campaign will be an opening of the floodgates with trivial Twitter spats distracting the police from investigating really serious allegations of hate crime which are being committed both online and offline.

This article was originally published in The Barrister and can be found here.