CPS interpret 66

Introduction

The guidance focuses on prosecuting Homophobic, Biphobic, and Transphobic (HBT) Hate Crimes, applying to crimes against LGBT individuals as well as mistaken identity scenarios. Prosecutors are advised to review this guidance alongside the Public Statement on Prosecuting HBT Hate Crimes.

Referral to CPS

All police-referred cases identified as HBT must be flagged on Compass CMS, and the correct monitoring codes should be used immediately upon identification. Flagging can occur at any stage of the process, with early flagging ensuring victim support and thorough evidence collection.

Definitions of Hate Crimes

Hate crime is defined as any incident perceived by the victim or others to be motivated by hostility or prejudice based on sexual orientation or being transgender. It is important to note that not all flagged cases will result in enhanced sentencing applications, but they should still be flagged.

Case Building and Reviews

Prosecutors should actively seek more information from the police to decide on the case by assessing prior offender incidents and motivations, the nature of language used, and the severity of attacks. The review should include whether the crime involved hostile language or constituted a sustained or excessive attack.

Legislative Context

Section 66 of the Sentencing Act 2020 imposes duties on courts to treat hostility based on sexual orientation or gender identity as an aggravating factor during sentencing. While it is not a specific aggravated offense, it enhances the seriousness of existing offenses. There is a requirement for evidence of hostility to support increased sentences, which is viewed as distinct from the evidential stages of prosecution.

Evidence Requirements for Aggravation

Prosecutors must establish that the victim identifies as part of the LGBT community, either actual or presumed, and that the demonstration of hostility must be contemporaneous with the conduct of the crime. Evidence might include verbal abuse, actions demonstrating contempt, and prior incidents of hostility.

Prosecutor Responsibilities

Clear communication with the defense and the court regarding potential sentence uplifts under the Criminal Justice Act 2003 is crucial. Relevant offenses should be presented carefully during sentencing, especially when plea deals are made. Prosecutors should also be familiar with case law and the special treatment of LGBT victims to ensure sensitivity in all dealings.

Victim and Witness Considerations

The Victim’s Code entitles victims of hate crimes to enhanced services. Sensitivity is required during interactions, especially with LGBT individuals who may encounter privacy issues related to their identity. Prosecutors should seek Victim Personal Statements and consider the use of Community Impact Statements.

Appropriate Language and Conduct

Using respectful language and references when addressing LGBT individuals is crucial. It is essential to avoid stereotypes and default assumptions, and prosecutors should inquire how victims wish to be acknowledged.

Case Withdrawal Protocols

If a victim withdraws support, prosecutors must thoroughly investigate the reasons before determining the next steps. Efforts should be made to ensure victims have access to support and understand the repercussions of their decisions.

Conclusion

All processes and considerations for handling HBT hate crimes should reflect a commitment to justice and sensitivity towards victims. The CPS emphasizes the importance of community confidence in the handling of hate crime cases, making accurate flagging and monitoring essential.