10.Section 1 sets out the different circumstances in which an offence can be aggravated by prejudice.
11.Section 1(1)(a) sets out one of the two ways in which an offence can be aggravated by prejudice. There requires to be a victim of an offence for this aggravation to apply.
12.Section 1(1)(a) provides that an offence is aggravated by prejudice where the offender has demonstrated malice and ill-will towards the victim based on the victim’s membership (or presumed membership) of a group defined by reference to one or more characteristics mentioned in section 1(2).
13.The characteristics mentioned in section 1(2) are:
Age;
Disability;
Race, colour, nationality (including citizenship), or ethnic or national origins;
Religion or, in the case of a social or cultural group, perceived religious affiliation;
Sexual orientation;
Transgender identity;
Variations in sex characteristics.
14.Section 11 (discussed below) sets out relevant definitions for these characteristics. The concept of the “group” refers to a group of people who may never have met one another but who share a listed characteristic.
15.An offence can be aggravated by prejudice under section 1(1)(a) if the offender demonstrates malice and ill-will towards a victim (of the offence) based on the victim’s “presumed membership” of a group defined by reference to one of the characteristics mentioned above. Here, presumed membership means presumed by the offender (see section 1(5)). For example, if the offender assaults a person (the victim) and in so doing demonstrates malice and ill-will towards the victim based on the offender’s presumption that the victim was a Muslim, then even if the victim is not in fact a Muslim the offence (assault) may still be aggravated by prejudice.
16.Section 1(1)(a) also provides that the demonstration of malice and ill-will can have occurred during the committal of the offence or immediately before or immediately after the committal of the offence. For example, if a person assaults a police officer and, immediately before committing the assault, demonstrates malice and ill-will (by shouting religious slurs towards the officer) then this can result in the offence of assault being aggravated by religious prejudice, even though the demonstration of malice and ill-will took place prior to the offence (assault) being committed.
17.Section 1(1)(b) sets out the second way in which an offence can be aggravated by prejudice. There does not require to be a specific victim of an offence for this aggravation to apply.
18.Section 1(1)(b) provides that an offence is so aggravated where the offender is motivated (wholly or partly) by malice and ill-will towards a group of persons based on the group being defined by reference to a characteristic mentioned in section 1(2). The characteristics mentioned in section 1(2) are set out above in paragraph 13.
19.As the aggravation in section 1(1)(b) does not require there to be a specific victim, this means that the aggravation can be applied even in cases where the malice and ill-will is expressed towards a wider group as a whole, without the need for a specific or individual victim to have been identified. For example, where a church, synagogue or mosque is daubed with graffiti the offender might, in committing the offence of vandalism, be found to have been motivated by malice and ill-will towards people (comprising a group defined by reference to religion) who worship at those places.
20.An offence can be aggravated by prejudice under section 1(1)(a) or (b) in respect of more than one characteristic. For example, an assault may be aggravated by both race and religion. Evidence of each separate aggravation would be required.
21.Section 1(3) provides that the aggravation by prejudice arising either through the operation of section 1(1)(a) or section 1(1)(b) can apply even if the malice and ill-will is based, in part, on other factors. For example, if an offender threatens a person (the victim) and this is motivated in part for reasons unconnected to the victim’s race (such as where the offender and victim worked together and the offender developed an intense dislike of the person), then the aggravation can still apply as long as either the test in section 1(1)(a) or section 1(1)(b) is met.
22.Section 1(4) provides that corroboration is not required to prove that an offence was aggravated by prejudice. Corroboration will still be required for the purposes of proving the underlying offence.
23.Section 1(5) provides that “presumed” (in the context of presumed membership of a group) in section 1(1)(a) means presumed by the offender. Section 1(5) also provides that “membership”, in relation to a group, includes association with members of that group. For example, if the offender, say, shouts aggressively in a manner that amounts to threatening or abusive behaviour at a person (the victim) who was collecting money for a charity that works with the disabled and in so doing the offender demonstrates malice and ill-will towards the victim based on the victim being associated with the disability charity then that is sufficient for an offence to be aggravated by prejudice.
24.Section 2 provides for what is required to happen when an offence is aggravated by prejudice by virtue of section 1.
25.Section 2(2)(a) and (b) provides for certain requirements falling upon the court when an aggravation has been proved.
26.The court is required to state on conviction: (i) that the offence has been aggravated by prejudice, and (ii) the type of prejudice by which the offence is aggravated, with reference to one or more of the characteristics mentioned in section 1(2) of the Act (see paragraph 13 above). These requirements also exist in respect of the recording of the conviction in official records.
27.The effect of an aggravation being proved is, by virtue of section 2(2)(c), that the court must take the aggravation into account in determining the appropriate sentence. This does not mean in itself that a sentence should be more severe than it otherwise would have been, but it does ensure the court will need to consider as a relevant sentencing factor that an offence has been aggravated by prejudice.
28.Section 2(2)(d) requires the court to explain the effect of the aggravation on the sentence imposed.
29.If the sentence is different, such as being more severe, than that which otherwise would have been imposed if no aggravation had been proved, the court must advise the extent to which the sentence is different. Equally, where there is no difference in sentence, the court must explain the reasons why this is the case in light of the offence having been aggravated by prejudice.