Hate crime and consent

Hate crime definition:

‘any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice towards someone based on a personal characteristic’

Babbs 2007:

• D racist to V in a shop

• Situation diffused

• 15 mins later, D headbutted V

• Convicted of racist hate crime

Pal 2000:

• D & V both asian

• D ejected from community centre by V

• Called V a ‘white mans arse licker’ & attacked him

• Convicted but on appeal it was held it wasn’t racially aggravated as his remarks were motivated by anger

• The remark wasn’t aimed at racial group, but to his relationship with white people

Cain v CPS 2022:

• D black, V black police officer

• V arrested another black man

• Said ‘this N word abusing his own kind’

• Arrested, but D said in black community n-word isn’t malicious

• Conviction still upheld

Religious and racially aggravated offence PQ:

• Identify basic offence

• Discuss fault element, AR/MR

• Identify if there was a demonstration of hostility s28(11)(a)

• If not, identify whether offence was motivated by hostility s28(1)(b)

• If either 28(1)(a) or 28(1)(b) apply, iy can be prosecuted as an aggravated offence against the person

Consent to non-fatal OAP, R v Brown:

• Group involved in sado-masochistic encounters

• Everyone consented

• Videoed and police found video

• 5 men charged with s47 & 20

• Pleaded guilty but appealed conviction due to consent

• Judgement: once we get to a level of bodilt harm, consent doesn’t matter. No exception created as there’s no good reason

  • Criticised, law shouldn’t interfere with consent. No medical needed, no serious harm so why??

Wilson 1996:

• Husband burned initials into wife’s arm

• Got infected & medical intervention was needed

• Wilson convicted but released

• Not in public interest such that consensual activity between husband and wife in the privacy of the matrimonial home should be a matter for criminal investigation or prosecution under 47

Exceptional categories where no liability is due:

• Surgery

• Tattoo/piercing (BM 2018 bodily modifications not included)

• Sport

• Horseplay (consent to risk of injury, Aitken 1992)

• Religious flagellation

• Circumcision

• Sexual/reckless transmission of a disease; NOT intentional transmission (Dica 2024, Konzani 2005)