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Explanatory Memorandum to Criminal Justice (No 2) (Northern Ireland) Order 2004

Increase in sentence for offences aggravated by hostility

Article 2 requires the court to treat hostility as an aggravating factor that increases the seriousness of the offence and to state this fact in open court.

Article 2(3) sets down two ways by which a court can determine whether an offence is aggravated by hostility.

First, Article 2(3)(a) defines an offence as aggravated by hostility if, either at the time of the offence, or immediately before or after its commission, the offender demonstrates hostility towards the victim based on the victim’s membership, or presumed membership, of a racial, religious or sexual orientation group, or based on the victim’s disability or presumed disability.

Second, under Article 2(3)(b) an offence is aggravated by hostility if it is motivated, in whole or in part, by hostility towards members of a racial, religious or sexual orientation group based on their membership of that group, or towards persons who have a disability or a particular disability.

Article 2(3)(b) therefore provides for aggravation when it is motivated by hostility towards racial, religious or sexual orientation groups. For disability, Article 2(3)(b) covers those with a particular disability as well as those more generally viewed as disabled. Article 2(3)(a) requires that there must be a demonstration of hostility towards an individual (“the victim”) because of their membership (or presumed) membership of a specified group.

If the hostility is also based on other factors, this is immaterial in the court’s consideration of the racial, religious, disability or sexual orientation hostility involved (Article 2(4)).

Article 2(5) defines racial, religious and sexual orientation groups. It also defines disability. Racial group has the same meaning as in the Race Relations (Northern Ireland) Order 1997 i.e. “a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls”. Racial group includes the Irish Traveller community. It defines religious group as meaning a group of persons defined by reference to religious belief or lack of religious belief. And it defines sexual orientation group as a group of persons defined by reference to sexual orientation. It defines disability as any physical or mental impairment.

Article 2(5) also defines membership of racial, religious or sexual orientation groups as including association with members of those groups. It provides that when an issue of “presumed” membership is involved, this means presumed by the offender.

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