Good, albeit depressing, to hear BBC 5 Live devote an hour to disability hate crime, with ex Director of Public Prosecutions, Sir Ken McDonald, essentially repeating messages about institutional failure in the criminal justice system that he first made in a speech in 2008.
There has been steady, albeit uneven, progress on recording of disability hate crime by the police since then (often misreported as an increase in the incidence of disability hate crime itself). But there continues to exist a yawning gap between estimated incidence of such crime (at around 72000 per year) and that reported to/recorded by the police with only around 2.5% (1841) of all incidents recorded in 2012-13. Of these, less than 1% were prosecuted.
Increasing the levels of reporting, recording and prosecution must therefore remain a central objective in the battle against the hostility encountered by disabled people. But to rather subvert the title of Katherine Quarmby’s book on the topic of disability hate crime, there is a risk that by only focusing on criminal justice, other institutions and wider society can scapegoat the police and Crown Prosecution Service. Such hostility may sometimes amount to a criminal matter, but its roots are deeply embedded in prejudices which can be found in all areas and at all levels of society. The vast majority of this will not be uprooted by the actions of the police and prosecutors who are, after all, dealing with symptoms, not the causes (though as Katherine Quarmby rightly points out, we are still in the dark as to what the motivations of those who commit such crimes actually are due to lack of research).
To these ends a much under-utilised legal tool is s149 (5) of the Equality Act 2010 – the section of the Public Sector Equality Duty which requires public authorities to have ‘due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b)promote understanding.’
The Public Sector Equality Duty replaced the Disability Equality Duty (DED) which contained an explicit duty on all public bodies to ‘eliminate harassment’ and to ‘promote positive attitudes towards disabled people.’ During the Equality Act’s progress through Parliament, assurances were given that the new ‘good relations’ duty should have the same effect as the previous strands of the DED and that in particular ‘tackling prejudice’ should be regarded as tackling its manifestations including hostility and harassment. Indeed, the Explanatory Notes include the following example to explain what the duty might entail ‘The duty could lead a school to review its anti-bullying strategy to ensure that it addresses the issue of homophobic bullying, with the aim of fostering good relations, and in particular tackling prejudice against gay and lesbian people.’
The DED was the reason the EHRC’s inquiry into the issues focused on ‘disability related harassment’ rather than ‘disability hate crime’ – the duty has a far broader and deeper application than s146 of the Criminal Justice Act, and while encompassing the police and prosecutors, it also applies to government departments such as the DWP, local councils, educational establishments, regulators of the media and others.
The criminal justice system must not be let of the hook. But if we are serious about giving people the freedom of a more safe and secure life, then a strategy focusing on preventing hostility and tackling prejudice towards disabled people, underpinned by s149 of the Equality Act 2010, is what’s urgently required.