Criminal Justice and Immigration Bill

I thank the noble Lord, Lord Fowler, on behalf of the Committee for moving the amendment in the name of my noble friend Lady Gould. He has done so briefly, if I may say so, and will attract a lot of sympathy. If he was implying that the Criminal Justice Act 2003 definition was meant to follow the Disability Discrimination Act 1995—that seemed to be his implication, and if it was not, I shall not go on—the Criminal Justice Act 2003 always had its own definition that did not include all of the definition in the 1995 Act. The amendment seeks to amend the definition of ““disability”” in Section 146 of the Criminal Justice Act 2003, to bring it into line with the definition in the Disability Discrimination Act 1995 and its successor Act in 2005. Section 146 of the Criminal Justice Act makes motivation by hostility against disabled persons an aggravating factor in sentencing. The aim of the amendment is to ensure that crimes motivated by the victim’s HIV status are covered by Section 146. The 2003 Act currently defines disability as, "““any physical or mental impairment””," whereas the two disability discrimination Acts specify that disability includes those with cancer, multiple sclerosis and HIV-positive status. I take the point that if we retain the current definition for the purposes of the 2003 Act, it will not necessarily include those suffering from these conditions, which do not always necessarily significantly impair the sufferers’ physical or mental functioning. Of course we are sympathetic to the plight of those who are or may be victimised on account of their HIV status, and it is fully understood why this amendment has been brought before the Committee. However, we do not believe that the amendment is necessary and we would go a bit further and say that it could have some undesirable consequences. I shall do my best to explain why. First, it is not axiomatic that the definitions of disability in each Act should be brought into line. The Acts are for different purposes. The Disability Discrimination Acts relate to economic discrimination and civil authority duties that are civil law matters. The Criminal Justice Act obviously deals with crime. Officials from my department have been in touch with officials from the Department for Work and Pensions, which has responsibility for the disability discrimination Acts. They confirm that the definition of disability in those Acts was developed for the particular purposes of those Acts and took into account the sort of employment issues covered. But the position has always been that the disability discrimination Acts’ definition of disability was devised for the purposes of civil rights and that the definition is not necessarily appropriate for use in other contexts. The definition of disability as drafted for the 2003 Act was designed to address the mischief of hostility and consequent crime directed towards those whose disability may make them immediate targets. It was not intended to cover the broader spectrum of those who do not suffer an impairment but may face hostility and crime for other reasons. That spectrum could be much broader than is suggested in the amendment, and we are concerned that it may be counterproductive to attempt specifically to list all such instances. We also believe that those with HIV-positive status, who would not specifically be caught by Section 146, are protected by other sections of the Criminal Justice Act—as are other minority groups which are not specifically mentioned in Sections 145 and 146. Section 143 of the Criminal Justice Act 2003 obliges the court to sentence based on seriousness, which is assessed on the basis of culpability and harm. Section 172 obliges the court, when sentencing, to have regard to guidelines set by the Sentencing Guidelines Council. Since its establishment in 2004, we have been developing the role of the council in ensuring appropriate sentencing through aggravating factors, guidelines and so on, rather than resorting to primary legislation in all cases to deal with these issues. So the situation has changed since the statutory aggravating factor of disability-related hostility was introduced. In December 2004, the council published a guideline on assessing seriousness, which lists aggravating factors that indicate greater seriousness. Those include "““hostility toward a minority group””," and the particular vulnerability of the victim, which may be relevant in hate crime cases. It should also be noted that the courts must consider harm in assessing seriousness; particular harm can be caused by hate crime as it is divisive and may cause wider fear and distress than untargeted crime and more distress to the individual victim. So I argue that the first of the two moving cases to which the noble Lord referred would undoubtedly be covered by other sections of the Criminal Justice Act 2003, given the intention and state of mind of the perpetrators of those offences. Our belief is that, given the statutory obligations on the courts to look at these matters in sentencing, there is protection against forms of hate crime that are not specifically mentioned in Sections 145 and 146 of the 2003 Act. If that is right, we believe that it would be counterproductive to try to amend the Criminal Justice Act to include all forms of targeted crime that could be deemed hate crime; it could lead to groups being excluded from protection if they were not specifically mentioned in statute. Where any statute sets out a very specific list of cases covered, that can be problematic in that it can fail to keep pace with the changes in society and can inadvertently act to exclude almost equally good cases. As a general principle, less specific legislation may work better to protect the public. Our fear is that adding very specific cases to the coverage of Section 146 may lead to other cases that could currently rely on the more general protection of the Sentencing Guidelines Council’s aggravated factors being forgotten or excluded. It would be unfortunate if we went down that road and inadvertently—completely by accident, as it were—made matters worse for other sections of the community which may suffer as the victims of hate crime. Of course, it is vital that we remain vigilant about any issue that may result in unfair discrimination or in the law impacting unevenly, but in this particular case, while we agree fully that people should not be discriminated against on HIV-related grounds, I believe that the existing law provides appropriate protection and that it would not be desirable to change it as suggested. Finally, although we believe that sentencing powers are adequate, we accept that there may sometimes be a question of the courts’ awareness of the issues—those who support this amendment may have that in mind. I understand that the Equal Treatment Advisory Committee, a committee of the Judicial Studies Board, recently received a general presentation by the Race for Justice advisory group on hate crime and is now considering what training issues may arise in that area. Although I know that that does not answer the amendment, we would be happy to raise the points it makes with that committee if the noble Lord thinks it appropriate.