by Fernne Brennan -
University of Essex.
In January 1999
I argued that a small revolution had taken place in the criminal justice system
in the form of the Crime and Disorder Act that introduced provisions to outlaw
racially motivated crimes.
Crimes motivated by religious hostility have been added to this
legislative framework by the Anti-terrorism, Crime and Security Act 2001. The
use of the criminal law to address questions of equal treatment of the Islamic
community in the criminal justice system
needs to be questioned. This paper argues that few, if any, lessons have been
learned from the problems raised in the context of statute-based race crime that
would engender public confidence that this new initiative is an appropriate tool
for resolving the complex social problems facing religious minorities subject to
Summary of the provisions
Part 5 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA) has introduced new legislative provisions to punish crime motivated by religious ‘hatred’. Section 39 of the Act amends part 2 of the Crime and Disorder Act 1998 (CDA) incorporating religious aggravation into the definition of aggravated offences covered by sections 28 to 32 of the CDA. The provisions of the CDA that cover assaults, criminal damage, public order offences and harassment, are now to be read as covering ‘racially or religiously aggravated’ offences. As a result of these amendments if an offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial or religious group, or the offence is motivated (wholly or partly) by racial or religious hostility towards members of a racial or religious group based on their membership of that group, the offender may face increased fines and/or sentence enhancement.
Table 1 represents in summary form the provisions covered by the Crime and Disorder Act 1998 as amended by the ATCSA.
Table 1 Racially and
Religiously Aggravated Offences under the Crime and Disorder Act 1998
Thus the statutory maxim sentence for a section 20 offence under the Offences Against the Person Act 1861 is raised from 5 years to 7 years, and for an offence under section 1(1) of the Criminal Damage Act 1971 from 10 years to 14. Moreover, section 39(7) amends section 153 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 153 of that Act applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998. If the offence was racially or religiously aggravated, the court shall treat that fact as an aggravating factor (a factor that increases the seriousness of the offence) and shall state in open court that the offence was so aggravated. For instance, in a case of robbery where the defendant uses racist abuse during the commission of this offence the charge would remain the same but the judge would be empowered to pass a severer sentence.
Muslims organisations have commented that this type of legislative change brings the UK in line with other European Union Member States and some jurisdictions in the United States that have implemented ‘hate’ crime legislation. That may be true, but the question that concerns this paper is this: have we leapt into a void in sculpting the complex issue of religious hostility to provisions still in their infancy? A useful way forward is to ask how re-labelling crimes as racially or religious hostile can achieve a reduction in the incidence of victimising, an increase in security for ethnic minority communities and equality before the law?
types of situation do the provisions include?
Section 28(1) of the Crime and Disorder Act requires that the racially or religiously aggravated crime is committed if the offender is motivated (wholly or partly) by hostility towards members of a racial or religious group or the offender demonstrates towards the victim of the offence hostility based on their membership of that group. One issue raised in interpreting these provision in the courts is whether they should apply to incidents between members of similar ethnic minority groups.
In White the defendant, a West Indian man, who considered himself African, called a bus conductor from Sierra Leone an “African bitch”, “stupid bitch” and “stupid fool” after she accused him of interfering with another passenger's handbag. He was convicted under section 4(1) of the Public Order Act and section 31 of the CDA 1998. On appeal, he unsuccessfully argued that the provisions on racial hostility did not apply where the defendant and victim were of a similar racial group. He argued that the statute was aimed at inter-racial hostility, not intra-racial hostility. The Court of Appeal held that being of the same racial group did not preclude application of the provisions. This decision follows the reasoning opened up in DPP v Pal that it was possible for an Asian to demonstrate racial hostility towards another Asian. In that case the defendant, an Asian youth, was charged with racially aggravated common assault after he assaulted an Asian caretaker and called him “a white man’s arse licker” and a “brown English man”. In White and Pal it was presumed that the provisions applied to intra-racial as well as inter-racial crimes. Was this presumption correct?
A principle of English law is that it is of general application. Therefore, barring its application in the cases where there are intra-racial incidents might run counter to traditional notions of equality that would treat all 'racially' motivated crimes in the same way. But what mischief were these provisions designed to resolve? Was it to protect individual victims of racially motivated crimes, or to protect particular minority groups from racist violence committed against them by majority communities? The basic provisions already protect individual autonomy and integrity therefore it is arguable that labelling them with racial hostility must have meant they were designed to deal with the latter. Moreover, the history leading to the implementation of racially motivated crimes strongly support this contention.
The social and political discourse that led to the enactment of statutory race crimes shows the state's concern to give recognition to victims of race crimes: the death of Stephen Lawrence and subsequent inquiry raised public concern about the need to stamp out racist violence. Added to this was the call by the Commission for Racial Equality to introduce specific legislation to protect racial minorities from racist crimes. A similar history predates the introduction of religiously hostile crimes. Members of the Muslim community argued that they had been subject to Islamophobia. This included racist murders, assaults and harassment. The interface of racist/religious hostility was not recognised by the state. Moreover, the vulnerability of victims of Islamophobia was only heightened by the events of September 11.
Protecting particular minority groups does not infringe the principle that law must be of general application, rather it recognises that some groups may need more protection than others. Neither is the principle of equal treatment diluted if one recognises that the law was introduced with the very purpose of outlawing racist crime against members of vulnerable minority groups. A further consideration is the rule in Tyrell (1894) to the effect that a crime should not be used to convict those whom it was designed to protect.
Arguably, the judges are misguided in relying on traditional notions of equality when dealing with intra-racial conflicts. If the latter approach is followed in the context of the application of religiously hostile incidents it is likely to cause problems for victims of Islamophobia. Conflicts between Shi'a and Sunni Muslims or between the various strands within Sunni Islam such as Barelwis , Deobandis, Tablighi Jamaat and Jamaat-I-Islami may result in their conduct being re-labelled as religious hostility and subject to penalty enhancement. The worry is that as the courts try to get to grips with these complex provisions the confused messages sent out to the victims of Islamophobia may not convince them that racial and religiously motivated crime is being taken seriously.
How should the courts treat an offender who trades in racist insults in the course of an
inter-racial dispute? In R v Saunders the trial court found that the words “I don’t like Pakis, fucking Pakis”, and “kick them out” was enough to support a charge of racial aggravated assault occasioning actual bodily harm. This seemed like a clear case of racial hostility, but should the use of racist language generally be equated with racial crimes? In R v Gunn the defendant, in search of his football, climbed over a fence that led to the victim's garden. The defendant tried to retrieve a ball in the garden but it transpired that the ball belonged to the victim's family. An argument ensued in which Gunn racially abused and physically assaulted the victim. Was Gunn racially hostile or badly behaved? In R v Foster the defendant was involved in a confrontation with the mother of a crying child in a library. The defendant touched the child and was told by the mother to "Fuck off". During the altercation the mother also called him a paedophile. The defendant replied to the mother saying, "Fuck off too, you black bitch". He also hit her. On appeal, the defendant argued that a distinction should be made between racially motivated crime and crimes accompanied by racist language. Like the defendant in Gunn, Foster had traded racist insults in the course of a dispute. In practice it may be difficult to separate trading in insults from racial hostility but evidence supports the contention that the statute should be read narrowly particularly if we wish to avoid applying the provisions to inter-racial disputes involving victim's of Islamophobic crime.
There is also inconsistency in the courts' approach. In the Leeds United Footballer's case the judge excluded the evidence of the victim Safraz Najeib that the attack had been racially motivated. The words “Do you want some Paki?” were held to be insufficient evidence of racial hostility. In CPS v Weeks, an appeal by way of case stated, Rose LJ concurred with the trial court's finding that when the defendant referred to the victim as a “black bastard” and made reference to the “Paki Mafia” that it was not the intention of the defendant to cause alarm and distress for the purposes of section 4A of the Public Order Act 1986 and section 31 of the Crime and Disorder Act 1998. It is difficult to see why Bowyer/Weeks type cases are not in line with Saunders and how Foster/Gunn are. These cases are symptomatic of a broader issue in criminal law that the CDA does not resolve: what constitutes hostility? 'Ill- will' or 'malevolence', 'unfriendly and aggressive'? The law is unclear and tends to treat such issues as questions of fact. This problem is compounded with the notion of racial hostility and may be more so when the question of what constitutes religious hostility is raised before the courts. Given the ambiguity it seems undesirable that the courts should treat trading in insults in the course of a dispute as though this was evidence of racial hostility.
Wider problems lie in what appears to be special treatment of words or thoughts. The legislation amounts to punishing some out of favour thoughts. These provisions may create tension between the right to freedom of expression in Article 10 of the ECHR with that of Article 9, protection of freedom of religion and thought. Is it not a basic civil right that people may hate whoever they like? It is not hard to see similar problems arising in the context of the application of the religious hostility provisions where trading in religious insults may or may not fall foul of the provisions.
Reduction in the incidence of victimisation as a form of justification
One of the issues the provisions raise is whether the introduction of racially and religiously motivated crimes will contribute to a reduction in the incidence of victimisation. Racial and religious minorities are stakeholders in the criminal justice system with a keen interest to see a reduction in the selection of individuals as targets of crime because of their 'race', 'ethnicity' or religion. One of the underlying justifications for statutory race and religious crimes is to outlaw the use of visible characteristics such as race, ethnicity and religion in order to victimise minorities. Ethnic minorities as victims are often in the same social class and suffer similar forms of deprivation as the perpetrator, yet they may be targeted as a threat to longer established white communities. Prohibitive legislation may contribute to a reduction in this type of victimisation, but it is not a foregone conclusion given the complexity of this area. For instance, the evidence that can be used to show that a race crime has been committed may depend on the time frame used to capture the ‘whole ‘ picture of a crime. This relates to the principle of contemporaneity. Briefly, the principle requires that the conduct element and mental element of an offence must coincide in time or law.
If the time frame within which racial or religious crimes can be committed is narrow then evidence of how the individual has been victimised by the process of racist or religious hostility may be lost. Racist victimisation is a process that is complex with repeated interactions between offender and victim or victim and the wider community that have a cumulative impact on the victim.  Any reduction in this type of victimisation must be able to deal with the process of complexity and repetition, not only one-off incidents such as arose in cases like Foster, Gunn and White. Generally, where there is a lag in time between the conduct and mental element of an offence this narrow time frame approach has been abandoned in favour of a ‘continuing act’ approach increasing the time frame to extend the principle of contemporaneity. This approach has found statutory expression in provisions concerning robbery for instance – ‘if he steals, and immediately before or at the time of doing so...’ The provisions on racial and religious hostility include an even wider time frame than that for robbery. Evidence of racial hostility ‘at the time of committing the offence, or immediately before or after doing so’ can be included in order to bring a charge under the provision. Thus, in Whitethe court held that evidence of the defendant’s conduct, when arrested by the police after the altercation, could be admitted. Although the words used by White after the altercation seemed to make little difference in the instant case, one can see how the statute has the potential to catch more evidence than would otherwise be the case.
The reason behind this expanded time frame was to combat difficulties in the path of securing evidence of racial hostility. This issue had been raised in the Government's consultation paper. In paragraph 8.2 the question of distinguishing a racial motive from other motives was seen as a major hurdle for prosecutors. The Government was particularly concerned with the problem of the influence of various motives that might "put a conviction in doubt for all but the most overtly racist incidents." However, the way the provision is framed lends itself to abuse. Evidence can be taken into account that holds the defendant responsible for the ‘harm’ done rather than ‘harm’ foreseen. This approach does not make a proper distinction between voluntary acts that one holds a person accountable for and non-voluntary acts where individual responsibility may be put in doubt. This has raised vexed questions in the court, and raises the issue of whether the law is being used to construct liability that might indirectly increase, rather than reduce the incidence of victimisation. Caution should be exercised in considering whether an incident that took place immediately before or aftercommitting a crime demonstrates racial or religious hostility.
A related problem is taking account of victim perception of the racially and /or religiously hostile crime. This follows on from recommendation 12 of the Stephen Lawrence Inquiry that "A racist incident is any incident which is perceived to be racist by the victim or any other person." Victim-determined perception is unlikely to make our understanding and strategies for victim reduction any clearer. Victims are often poorly placed to assess intention,  and can find it difficult to judge what the motivating factors are. This is not to deny the existence of racially hostile crimes, but rather to point out that the process is a complex one that cannot be understood in simple causative mode. ‘Economic scapegoating’ of ethnic minorities can contribute to victimising and it has been suggest that 85 per cent of crimes committed against ethnic minorities is not racially motivated at all. Thus a comprehensive approach needs to locate racist and Islamophobic victimisation in the wider context of how the state and civil society understands and responds to multi-cultural communities, rather than undue reliance on these provisions. This might include preventative and co-operative measures targeted at the young and at impoverished communities.
Securer Communities as a form of justification
Enhanced sentences for crimes committed on the basis of racial hostility acquired judicial approval with Attorney General Reference.  Now the CDA 1998(see Table A) gives statutory force to punishing racial and religious hostility. Moreover, courts have been empowered to dispose of cases that fall outside the provisions of the CDA where there is evidence of racial or religious hostility by way of harsher sentences. The question is to what extent enhanced sentences can effect the development of safer communities?
Those who commit crimes motivated by racial or religious hostility face increased sentences. Why? It may be argued that enhanced punishment for racially motivated crimes is justified because it is an emphatic denunciation by the communityof such crimes that they hurt certain vulnerable communities more. It is also represents a way of portraying racial harmony as one of society’s highest goals. That certain vulnerable victims suffer more is, empirically, hard to sustain,  but it may be argued that certain minority groups may suffer 'more' because of racial or Islamophobic hostility. Even if this could be proved, it is one thing to enhance punishment for particularly nasty crimes, yet quite another to prioritise racial and religious hostility over other motivations. This could amount to special treatment of certain motives over others without objective justification: unless such justification is understood in the context of how the provisions arose and is limited to protection of that particular mischief. One danger, pointed out by consultees to the Sentencing Advisory Panel (SAP), was that prioritising ‘race’ and religion might cause resentment amongst other minority groups who do not benefit from similar legislation. Provisions that appear to accord special treatment on the basis of particular characteristics can be seen as unfair and add to conflict amongst minorities: thus racial and religious hostility appears to trump homophobic hostility. A more troubling problem is the white racist backlash that might arise from those ‘who already hold racist views or believe minorities get preferential treatment.’ In the current Islamophobic climate – where the presence of prejudice and power resulting in discrimination has, it is argued, been mixed with racism in the sense of a crude colour racism that is targeted by offenders- this difficulty is likely to be repeated. None of this lends itself to securing the community. This leads one to suggest that giving statutory priority to certain nasty motives over others is not the best way of enhancing community security.
Deterring the racist
SAP suggested that the enhanced sentencing provisions attached to racially motivated crimes are a very public part of the criminal justice system, showing state commitment to the eradication of racially motivated crimes. However, an even-handed approach is required in administering the sentencing provisions. Courts should adopt a structured approach that leads to tougher sentencing particularly since there had been a number of appeals against sentence that suggest the courts are not clear in applying the sentencing provisions. The public must be assured that there is no doubt as to the ‘precise effect of racial aggravation on the sentence.’ A disturbing aspect of Governmental and the Advisory Panel’s approach to punishment is the assumption that custodial sentences work. Parliament’s intention to lock up offenders for longer periods and Governmental rhetoric that racist crime will not ‘pay’ because offenders will be locked away ignores a fundamental problem with utilitarian theories of punishment based on deterrence. Such theories see punishment serving a ‘norm-reinforcing’ function in the sense that past behaviour is punished, the potential for future offending is discouraged and the tendency to partake in such racist crime is discouraged in the general population because of the way offenders are treated by the state. Table A demonstrates the length to which the courts can go to enforce the message that offenders who commit racially (and/religiously) hostile crimes will face stiffer custodial sentences. However, scholars differ in their view on the effectiveness of prisons as a deterrence.
At a general level it may be argued that deterrence works but the claim by law-makers that tougher sentences will lead to a reduction in crimes motivated by racial or religious hostility is questionable. There is little cross-elasticity between the offending behaviour and degree of punishment. If this is true are the enhanced sentencing provisions and guidelines anymore than ‘treating offenders as pawns in a game’? If prisons do not work – if they ‘breed racists’ then what is the logic behind enhanced custodial sentences - unless it is to create a false sense of security? Some racists may get caught and locked up but the more sophisticated racist will avoid enhanced sentencing altogether by ensuring that evidence cannot be linked to racial hostility or where it is linked, by plea-bargaining to the non-racially motivated offence. Whilst the Solicitor General gave assurances that the Crown Prosecution Service would not accept lesser pleas, SAP points out that ‘these matters are largely outside the control of the courts.’ The potential for plea-bargaining undermines the system and ties judges’ hands.
On utilitarian grounds it is quite logical to imprison people since the concern is less with deterrence than with expressing social values as to what is tolerable conduct. However, some form of deterrence is necessary to the promotion of safer communities, but given the prison crisis and the over-use of imprisonment, and the belief that imprisoning a few people (for longer) will influence deep-seated patterns of behaviour and social structures, the over-emphasis on imprisonment as an effective deterrent is naive. Few cases reach the courts:  of nearly 48,000 racial incidents reported only 1,150 reached the courts (1999-2000). Further, studies show that many racial incidents are not reported. Muslims are not confident that the infrastructure is in place to support complaints, therefore there may be a higher incidence of offending which an enhanced sentencing policy does not reach. How are communities to feel secure? Religious hostility is more subtle than racial hostility, indicating that a more imaginative approach needs to be adopted that locates and deals with root causes of this kind of crime. Communities need to develop strategies that deal with the disillusioned, young men, those who have grown up with violence as a norm for conflict resolution, and the dis-empowered. Neighbourhoods where much of racial and religious conflict is played out need alternatives to fines and imprisonment, an interesting path worth exploring is the role of restorative justice. More comprehensive approach needed that takes account of the context in which communities come to blows over ‘race’ and religion. Hadfield raises this in the context of the Northern Ireland conflict asking whether criminal law is the right instrument to use in an area where harmony, or the reduction of tension is the goal? Increased custodial sentences may satisfy public opinion but it is not necessarily in the public interest.
these aggravated crimes justified at all?
Section 39 of part 5 of the Anti-terrorism, Crime and Security Act 2001 introduced religiously hostile aggravated offences, adding to existing racially aggravated offences contained in the Crime and Disorder Act 1998. Now 'racially and religiously aggravated' crimes are covered, rather than just racially aggravated crimes. Commentators have argued that the recognition of racial and religious aggravation in the commission of criminal offences should be acknowledged in the development of strategies to combat racial and religious 'hatred' i.e., criminal conduct motivated by prejudice. They believe that offenders should receive sentences that reflect society's disapproval of crimes that are committed because of racial and religious bias. However, before the introduction of racially aggravated crimes Lord Chief Justice, Lord Taylor, ruled that courts should use their discretion in dealing with aggravating factors such as racial hostility by way of harsher sentencing. Presumably, this could apply to religiously aggravated crimes also although this begs the question since generally there is no protection it does not follow that religious aggravation would be treated as an aggravating factor. However, given public concern about the rise in Islamophobic incidents it is arguable that this could have been treated as an aggravating factor in sentence enhancement, moreover a combination of section 13 of the Human Rights Act 1998 and article 9 of the ECHR relating to freedom of religion and belief leans in favour of this contention. Given these powers, why legislate? It is the contention of this paper that race/religious hate legislation is fraught with difficulties. It is poorly drafted and, sometimes, inappropriately applied sweeping up the very people it is designed to protect: victims of racism and Islamophobia. Its scope reconfigures bad behaviour as racist. More disconcerting is the portrayal of these provisions as the key to reduction in victimisation and increase in community security.
Part 2 of the Crime and Disorder Act 1998 (CDA), was amended to take account of religiously aggravated as well as racially aggravated crimes. The rise in reported attacks on Muslims in the wake of the tragedy of September 11 was the watershed to this legislation, although there had been prior demands for legislative protection. British Muslims had argued that despite facing discrimination, harassment and violence the legislature remained blind to their calls for protection. This caused resentment by members of Muslim communities who considered that, unlike racial and ethnic minorities, Muslims, as religious minorities, were ignored by the criminal justice system. Inertia on the part of the legislature in relation to religious discrimination against minorities was seen as another instance of unequal treatment by the state. This is contentious since no greater protection was enjoyed by the majority religion prior to the 2001 Act unless it somehow covered racial hostility. The real bone of contention was that Muslims demanded better protection because they were being violently attacked on the basis of Islamophobia.
English anti-discrimination law recognises racial groups and includes ethnic minority groups if they meet the criteria set out in Mandla. Thus Sikhs, Jews and gypsies constitute ethnic groups enabling them to rely on the protection afforded by the provisions. By the same token they are taken account of under the provisions of the CDA where the definition of 'racial group' includes a person defined by reference to ethnic origins. The problem with this exclusionary approach was the vacuum created for particular minorities who were faced with the intersection of race/ethnic/religious discrimination and violence, such as Rastafarians and Muslims, but left without state recognition of their plight. Critics raised this ambiguity in the provisions of the Crime and Disorder Act covering racially hostile crimes. ‘Preferential’ treatment to victims of racial hostility  led to the anomalous position that if an offence covered by sections 29 to 32 of the Act was committed because the victim was (or was presumed to be) Jewish or Sikh,  for instance, the offender would face an enhanced penalty under the Act, but only the basic penalty if the same offence was motivated by religious hostility. An interesting example of this was reported in the Muslim News. A Sikh man was abused after he was mistaken for a Muslim. Since the abuse was aimed at the victim because he was presumed to be Muslim the relevant CDA provisions would not cover him, whereas, had the offensive behaviour been motivated on the basis of the victim's actual ethnicity, the offensive conduct would have been caught under the provisions. It has been argued that there seems to be an ideological cut off point in terms of the development of appropriate legislation and government policy when it comes to the question of protecting Muslim communities from discrimination and Islamophobic harassment and violence. Members of the Muslim communities are often seen as belonging to a monolithic, inferior, manipulative and aggressive culture. This may be off-set by Islamophobia (unfounded hostility towards Muslims) that, some contend, support an environment where hostile behaviour towards Muslims is tolerated. State failure to pick up on this compounds the problem. This has raised particular concerns for members of the Muslim community who have argued that Muslims are non-ethnic religious minorities that face discrimination and violence yet, unlike other minorities similarly placed, they are not sufficiently protected by the law. Since religious minorities are not generally protected by the law what justifies this claim? It must relate to Islamophobia.
Since September 11th there appears to have been a rise in crimes of violence against Muslims. Muslim News documented a number of attacks on British Muslims. Hundreds of incidents were reported, and the numbers do not include those afraid to come forward. According to Muslim News incidents covered harassment in the form of verbal abuse and threats of physical assault. In Wiltshire a Muslim woman in Hijab was beaten around the head with a baseball bat. In Surrey Muslim women in Hijab had sandwiches thrown at them by children and in Central London a Lebanese woman in Hijab was punched in the face. The catalogue of attacks of members of the Muslim communities makes disturbing reading, and it comes as little surprise that Muslim Organisations should  have argued that the Crime and Disorder Act 1998 should be extended to cover them. They have suggested that ‘if effectively implemented this type of legislative change has the potential to contribute towards reducing and deterring anti-Muslim violence'.
reservations have been expressed about the extension of criminal law to cover
religious groups in the wake of anti-Muslim prejudice
there was general agreement that, if adequate safeguards were introduced,
legislating against religious ‘hatred’ would be beneficial.
This paper contends that legislating to punish religious hostility per se
is unlikely to achieve the objective desired of the criminal law – equality,
reduction in victimisation and community security (unless the provision are
understood and applied in a restrictive way to combat Islamophobia).
before the Law
Mmulticultural societies are not unique in Britain but the historical context, cultural background and patterns of interaction are.  Where patterns of interaction lead to conflict and racist or religious violence against minority groups this raises the question of how the state deals with questions of conflict between what may loosely be termed culturally diverse communities. There has been a long history of racist violence against ethnic minority communities in Britain: attacks on Jews since the 12th Century,  between 1984 and 1992 there was an 85% increase in the reporting of anti-Semitic incidents, attacks on ‘people of colour’ from the time of Elizabeth I, attacks on black and Asian people during the World Wars, in the ‘skinhead’ era and during the 1970’s. Until recently the state has done little to acknowledge racist violence. It can be argued that the re-labelling of criminal conduct as racially or religiously hostile is part of the process of recognition by the state that the criminal justice system needs to respond to the concerns of multicultural communities as a permanent fixture in Britain. Lack of state recognition can be located in the wider discourse on the failure to treat Islamic minority communities equally in contemporary multicultural societies. Traditional notions of equality tend to treat people the same regardless of race, ethnicity, religion and so on. The problem with this approach is that questions of individual autonomy and the right to physical and mental integrity give rise to different issues requiring appropriately targeted solutions. Equating equality with identical treatment results in a cultural vacuum between principle and practice. This ignores the particular difficulties ethnic and particular religious minorities might face with white communities. The equal treatment of ethnic minorities before the law does not, necessarily, entail identical treatment in the criminal justice system. There are times when group rights might need to take precedence over the rights of the individual - the spate of Islamophobic attacks suggests that this may be such a time. Differential treatment of minorities in the pursuit of equality is a way of bridging this cultural gap, acknowledging that racist and Islamophobic hostility may indicate the exercise of power motivated by unacceptable prejudice by some groups against others. The provision by the state of laws aimed at the protection of ethnic minority communities from racist and religious violence is one way of redressing this imbalance.
The purpose of the legislation was to protect racial and Islamic minorities. It is quite clear from the history preceding, both the CDA and the Anti-Terrorism, Crime and Security provisions that the state was concerned to counteract racist and Islamophobic violence against ethnic minority communities. If that is the case then subjecting victims of such violence to those provisions must be wrong. This also conflicts with the rule in Tyrell  to the effect that a crime should not be used to convict those whom it was designed to protect. This point was raised with the Sentencing Advisory Panel during the consultation exercise. The response was that since the provisions were intended to apply to all offences where there was a racist element that it would also apply where the offender was an ethnic minority. This comment only makes sense taken outside of the context of racist and Islamophobic violence and intimidation against ethnic minority groups and subjects the same to victimisation by the state through provisions meant to protect them. Asking the police and CPS to ‘ensure that the legislation is applied fairly to all groups’ misses the point that it should not apply to victims of racism and Islamophobia at all. There is nothing novel in legislation aimed at protecting particular groups e.g., minors. On a wider level there is the danger that these provisions could increasingly be used against ethnic minorities under the pretext of some fudged notion of liberal equality that only adds to their insecurity. A cruel irony.
Lord Mackay, former Lord Chancellor, said: 'I believe that bringing the criminal law into the area of religion…is fraught with real difficulty', Is he right? Whilst this paper contends that giving statutory recognition to ‘hate’ crimes is unnecessary, the route for responding to the concerns of Muslim communities would have been better served if Parliament amended the Crime and Disorder Act to take account of Islamaphobia – a form of racism. This option was open to them given the extensive literature on this in publications such as that by the Runnymede Trust (The Future of Multi-ethnic Britain). The concept of xenophobia was a possible alternative as it includes the belief in race, colour, descent or religion as determining aversion to individuals or groups.  Instead the way of confusion has been advocated by the amendments – this really is a ‘sop’ to Muslim communities.
I would like to thank Professor Andrew Ashworth, Professor Brigid Hadfield and Dr Peter Edge for their helpful comments on earlier drafts of this paper. A special thank you to all those who inspired me to write this piece. Mistakes remain mine.
 See F. Brennan, 'Racially Motivated Crime: the Response of the Criminal Justice System"  Crim.L.R. 17.
 See Select Committee on Home Affairs, First Report on the Anti-terrorism, Crime and Security Bill, 19 November 2001, HC 351.
A dread or hatred of Islam and Muslims, see S. Poulter, Ethnicity, Law and Human Rights (Oxford, OUP, 1999) at 200.
 Religious ‘hatred’ is a contentious term, see discussions about the concept of ‘hatred’ in L Ray and D. Smith, ‘Racist Offenders and the Politics of ‘Hate Crime’’ in Law and Critique, vol 12, No 3, 2001, pp.203-221, J. B. Jacobs and K. Potter, Crimes, Criminal Law and Identity Politics (Oxford, OUP, 1998), F. M. Lawrence, Punishing Hate Bias Crimes under American Law (London, Harvard University Press, 1999) and P. Iganski (ed.), The Hate Debate (London, Profile Books, 2002).
 S39(1) Anti-terrorism, Crime and Security Act 2001 (ATCSA).
 S39(2) ATCSA.
 S39(6) ATCSA.
 See Sections 29,30,31 and 32 of the Crime and Disorder Act 1998 respectively.
 See Section 39(5)(a) Anti-terrorism, Crime and Security Act 2001.
 The offences cover section 20 and section 47 Offences Against the Person Act 1861 and common assault, criminal damage, offences under section 4, 4A and 5 of the Public Order Act 1986 and harassment under section 2 or 4 of the Protection from Harassment Act 1997.
By section 28(2) Crime and Disorder Act 1998 as amended by section 39(3)((b) of the Anti-terrorism, Crime and Security Act 2001, membership in relation to a racial or religious group includes association with members of that group
 S28(2) Crime and Disorder Act 1998 provides that ‘presumed’ means presumed by the offender
 As amended by S.39(3)(b) ACSA.
 S28(1)(a) Crime and Disorder Act 1998
 As amended by s39(3)(b) ACSA.
 S28(1)(b) Crime and Disorder Act 1998.
 Where evidence of racial aggravation is not proved then the defendant can still be convicted of the non-racially aggravated offence see R v Wright  CA where the jury had rejected the evidence of racism but accepted the evidence of assault for the purposes of a charge under s47 Offences Against the Person Act 1861.
 Source: Sentencing Advisory Panel (SAP), Racially Aggravated Offences: Advice to the Court of Appeal, Sentencing Advisory Panel, July 2002, Annex A.
 Offences Against the Person Act 1861.
 Criminal Damage Act 1971.
 Public Order Act 1986.
 Protection from Harassment Act 1997.
 Section 29(1)(a) Crime and Disorder Act 1998.
 Section 30 (1) Crime and Disorder Act 1998.
 Section 153 (2) Powers of Criminal Courts (Sentencing) Act 2000 as amended by section 39(7)( c) of the Anti-terrorism, Crime and Security Act 2001.
 Section 153 (2) (a) of the Powers of Criminal Courts (Sentencing) Act 2000.
 Section 153 (2) (b) of the Powers of Criminal Courts (Sentencing) Act 2000.
 N. Addison, Racially Aggravated Offences, www.harassment-law.co.uk
 Select Committee on Home Affairs First Report, appendix to the Minutes of Evidence, op. cit., at 3 .
 See F. M. Lawrence, op.cit.
 See F. M. Lawrence and Jacobs and Potter on the meaning of hate crime in the American context and Iganski for the UK context, op.cit.
 These criteria flow from the author's reading of the literature that suggest victimisation, security and equality are amongst the most important concerns. See W. Macpherson, (1999) The Stephen Lawrence Inquiry, Report of an Inquiry by Sir William Macpherson of Cluny, CM 4262-1, London: Home Office, 1999, Runnymede Trust The Future of Multi-Ethnic Britain: The Parekh Report, (London: Profile Books, 2000), B. Bowling and C, Phillips, Racism, Crime and Justice (Harlow, Pearson Ltd, 2002), B. Parekh, Rethinking Multiculturalism. Cultural Diversity and Political Theory (London, Macmillan, 2000).
 Section 28(1)(b).
 Section 28(1)(a).
 CA ECWA,  1 WLR 1352.
  Divisional Court LTL 7/2/2000 (February 3). Although the defendant was acquitted at the magistrates court, the prosecution appealed by way of case stated.
 Although on the facts in Pal the Divisional Court did not find that a racially motivated crime had been committed. See commentary on this case in Criminal Law Review, 2000, 705-777, at.757.
 That includes assaults, harassment and public order offences.
 See Racial Attacks (Home Office 1981). Bowling and Phillips contend that this was the first official recognition of racial violence as a social problem, op. cit., at 120.
 22 April 1993.
 See Macpherson, The Stephen Lawrence Inquiry, 1999, op.cit.
 In 1993, Sir Herman Ousely, Commission for Racial Equality, called for racist violence to be made a crime. See Bowling and Phillips, op.cit., at 15.
 B. Hepple and T. Choudry, Tackling Religious Discrimination: Practical Implications for Policy-makers and Legislators, Home Office Research Study, 221, 2001.
 See Select Committee on Home Affairs, First Report on the Anti-terrorism, Crime and Security Bill, 19 November 2001, HC 351, appendix 14.
 A point also made by Parekh, op. cit.
 The Shi'a are the majority in Iran and Iraq. About nine tenths of all Muslims in the world are Sunni and this is highest amongst South Asian Muslims in Britain, see Runnymede Trust, Islam in Britain, op.cit., at 7.
 Cases of religious animosity between Sikhs and Muslims have resulted in several referrals to the CPS and one such case has been charged as racially aggravated but the result is unknown, see E. Burney and G. Rose, Racist offences - how is the law working?, HORS 244, July 2002, at 32.
  CA
 See paragraph 3 of judgment.
 See paragraph 1 of judgment
 R v Gunn (1999) CA, 28/10/99.LTL 29/10/99 (Unreported elsewhere).
 R v Foster  LTL 8/1/2001: (2001) 1 CAR(S) 111: (2001)1CAR(S)383. 2000 Crim LR 1030.
 See para. 4 of judgement.
 L. Ray and D. Smith, 'Hate Crime, Violence and Cultures of Racism', in P. Iganski (ed.), The Hate Debate, op. cit., at 15, also see E. Burney and G. Rose, Racist offences - how is the law working?, HORS 244, July 2002, at 93.
 Statewatch March –April 2001 (Vol, 11 no 2). For an interesting analysis of this case see P. Jepson, "The difference between a racial incident and a criminal offence", NLJ, 2001 651-2.
See National Civil Rights Movement, www.ncrm.org.uk/campaigns/najeib.html.
 Wilson v Pringle  2 All ER 440 CA.
 In the Alistair Scott case the defendant admitted using religiously aggravated threatening, abusive or insulting behaviour towards Muslims. He argued that what he said was stupid but not meant to be hostile, see Telegraph.co.uk, 27/07/2002.
 P. Iganski, 'The Problem of Hate Crimes and Hate Crime Laws', in P. Iganski (ed.) Hate, op.cit., at 3, and Jacobs and Potter, op.cit., at 5.
 This issue is possibly raised in the case of Iftikhar Ali who was convicted of distributing threatening, abusive or insulting material with the intention of stirring up racial hatred, when he distributed leaflets in London drawing attention to a talk calling for a holy war against Jews, see BBC NEWS, 3 May 2002, news.bbc.co.uk.
 See B. Bowling and C. Phillips, “Racism, Ethnicity, Crime and Criminal Justice, in . Maguire et al The Oxford Handbook of Criminology (London, OUP, 2002) at 579-619.
 Bowling and Phillips, Racism, Crime and Justice, op.cit., chapter 5. The writer appreciates that characteristics are not always visible.
 See Bowling and Phillips in Racism, Crime and Justice, op. cit., and Ray and Smith in The Hate Debate, op. cit., at 88-102
 Ashworth has raised doubts as to whether this ever fully represented the law. See A. Ashworth, Principles of Criminal Law (Oxford, OUP, 1999) at 163.
 See Bowling and Phillips, ‘ Racism, Ethnicity, Crime and Criminal Justice’, M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (Oxford, OUP, 2002), at 584.
 See Fagan v MPC 1QB 439 and Miller 2AC 161.
 See Ashworth, Principles of Criminal Law, at 162, op. cit.
 See S.8(1) Theft Act 1968.
 Section 28(1)(a) Crime and Disorder Act 1998.
  CA ECWA,  1 WLR 1352.
 Racial Violence and Harassment, Consultation paper, Home Office, September 1997.
 ibid, para 8.2.
 H. L. Hart, Punishment and Responsibility. Essays in the Philosophy of Law (Clarendon Press, Oxford, 1995).
 See R v Hale (1978) 68 Cr App R 415 CA, whether force used after the theft was complete could be seen as immediately before or at the time. The court said it was a continuing act.
 See A. Ashworth, Principles of Criminal Law (Oxford, OUP, 1999), at 162, for criticism of constructive manslaughter as an area of the criminal law that is fraught with difficulty and ripe for reform.
 Section 28(1)(s) CDA 1998.
 See Sir William Macpherson, The Stephen Lawrence Inquiry, February 1999, HMSO, CM 4262-I.
 A. Clancy, M. Hough, R. Aust and C. Kershaw, Crime, Policing and Justice: the Experience of Ethnic Minorities Findings from the 2000 British Crime Survey (Home Office Research, Development and Statistics Directorate, October 2001).
 Phillips and Bowling, ‘ Racism, Ethnicity, Crime and Criminal Justice’, M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (Oxford, OUP, 2002) at 585.
 ibid. at 586.
 For instance the Macpherson Report placed great emphasis on the role of education in countering racial tension.
 Attorney General's Reference (nos. 29, 30 and 31 of 1994)  16 Cr. App. R. (S).
 Section 153(2)(a) Power of Criminal Courts (Sentencing) Act 2000.
 F. M. Lawrence, Punishing Hate, op. cit., at 161-175.
 See Bowling and Phillips, Race, Crime and Justice, op. cit., at 12.
 F. Lawrence, 'Racial Violence on a Small Island' in P. Iganski (ed.), The Hate Debate, op.cit., at 46.
 M. Wasik, ‘Crime, Seriousness and the Offender’ in Ashworth and M. Wasik Fundamentals of Sentencing Theory (Oxford, Clarendon Press, 1998), at 113.
 J. B. Jacobs and K. Potter, op. cit., at 80-84.
 SAP, Racially Aggravated Offences: Advice to the Court of Appeal, op. cit., at 3 para 8.
 Bowling and Phillips, Racism, Crime and Justice, op. cit., at 121.
 The Runnymede Trust, Islam in Britain, op. cit., at 10.
 ibid. at 12.
 In Kelly v Donnelly  2 Cr. App R (S), 341, most of the proposed guidance was accepted.
 SAP, Racially Aggravated Offences. Advice to the Court of Appeal, op. cit., at.3, para 7
 Starting with R v Stephen Miller  CA, also see R v Saunders  1 Cr App R 458 and R v Morrison (7 April 2000) CA. Now see Kelly v Donnelly  2 Cr. App R (S), 341 where the Court of Appeal accepted most of the SAP guidelines.
SAP, Racially Aggravated Offences. Advice to the Court of Appeal, op. cit, at 6, para 24.
 A. Von Hirsch, Past or Future Crimes and Dangerousness in Sentencing of Criminals (Manchester, Manchester University Press, 1986), Ch. 3.
 The two being constantly conjoined is a problem since religious hostility per se raises separate issues.
 Support for this view can be found in a study reported in A von Hirsch, A. Bottoms, E. Burney and P. O. Wikstrom, Criminal Deterrence and Sentencing (Hart Publishing, 1999).
 N. Lacey, State Punishment (London, Routledge, 1988).
 See Bowling and Phillips, Racism, Crime and Justice, op. cit., at 126.
 See SAP, Racially Aggravated Offences. Advice to the Court of Appeal, op. cit., at 3 para. 7.
 E. Burney, op. cit., at 107.
 F. M. Lawrence, 'Racial Violence on a Small Island; Bias Crime in a Multicultural Society, in P. Iganski (ed.), The Hate Debate, op. cit., at 36-53.
 A. Ashworth, Criminal Justice and Deserved Sentences  Crim. L. R. 340, at 341
 See Burney and Rose, op cit., at 107.
 A. Clancy, M. Hough, R. Aust and c. Kershaw, (2001) Crime, Policing and Justice: the Experience of Ethnic Minorities, Findings from the 2000 British Crime Survey, Home Office Research Study 223. London, Home Office, also see N. Aye Maung, and C. Mirrlees-Black, (1994) Racially Motivated Crime: A British Crime Survey Analysis, Home Office Research and Planning Unit Paper 82. London, Home Office.
P. Weller and K. Purdham, (2001) Religious Discrimination in England and Wales, Home Office Research Study 220, London: Home Office.
 Ray and Smith, 'Racist Offenders and the Politics of 'Hate Crime'', in Law and Critique, 12, No. 3, at 221.
 B. Hadfield, ‘The Prevention of Incitement to Religious Hatred – An Article of Faith’, (1984) 38 Northern Ireland Legal Quarterly.
E. Burney, op. cit., Burney and Rose, op. cit., at 104 and Guardian Unlimited, 22 February, 2001, that reports a fifth of racist crimes involves neighbours.
 B. Hadfield, ‘The Prevention of Incitement to Religious Hatred – An Article of Faith’, op cit.
 ibid. at 231-232.
A. Ashworth and M. Hough, ‘Sentencing and the Climate of Opinion’,  Crim. L. R. 776, at 780.
 Section 39(1) Anti-terrorism, Crime and Security Act 2001.
 See Observations by the Commission of British Muslims and Islamophobia, Anti-terrorism, Crime and Security Bill, November 2001, http://www.runnymedetrust.org.
 See J. B. Jacobs and K. Potter, Hate Crimes Criminal Law and Identity Politics (Oxford, OUP, 1998). See also F. M. Lawrence, Punishing Hate (London, Harvard University Press, 1999).
F. M. Lawrence, 'Racial violence on a 'small island': bias crime in a multicultural society', in P.
Iganski (ed.), The Hate Debate (London, Profile Books, 2002) at 37-39.
 Attorney-General Reference (Nos.29, 30 and 31 of 1994) (1995) 16 Cr..App. R. (S.) 698.
 A court must have particular regard to the importance of the right to freedom of religion etc.
 Enshrines the right to freedom of thought, conscience and religion and to the manifestation of these.
 See section 39 Anti-terrorism, Crime and Security Act 2001
 See EUMC, Anti-Islamic reactions in the EU after the terrorist acts against the USA, A collection of country reports from RAXEN National Focal Points, 12 September to 31 December 2001, UK,CRE.
 Terrorist attack on the WTC and the Pentagon on September 11 2001.
Runnymede Trust, Islamophobia:A Challenge For All Of Us 1997, http://www.runnymedetrust.org.
 Communities as opposed to community since British Muslims originate from several countries such as India, Iran, Somalia, Malaysia, countries in Africa and the Caribbean, see Runnymede Trust, Islam in Britain, op.cit.
 See Race Relations Act 1976.
 Viz., a long shared history and a cultural tradition of its own, per., Lord Fraser in Mandla v Dowell Lee  2 AC at 562.
Mandla v Dowell Lee  3 All ER 1108:  2 AC 548.
 Seide v Gillette Industries Ltd IRLR 427.
 Commission for Racial Equality v Dutton  1 All ER 306.
 Crime and Disorder Act 1998, Section 28(4).
 Cooper v British Rail (unreported) The Independent, 27 November 1986. Dawkins v Department of the Environment  IRLR 284, where the Court of Appeal decided that whilst they had a cultural tradition, Rastafarians did not have a long shared history nor could they be separated from the rest of the Afro-Caribbean community by reference to ethnic origins.
 Nyazi v Rymans Ltd EAT/6/88 (unreported). However, see CRE v Precision Manufacturing Ltd COIT 4106/91 (26 July 1991) and J. H. Walker Ltd v Hussain & Others  ICR 291,  IRLR 11 where a claim for discrimination under the RRA would lie on the basis that the complainants were seen as Asian, and thus a racial group.
 See the Runnymede Trust, The Future of Multi-ethnic Britain (Profile Books, 2000) at 5, op.cit., also see N. Addison, Racially Aggravated Offences, www.harassment-law.co.uk
 Section 28(4) Crime and Disorder Act 1998 states that ‘‘racial’ group means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.’
 Section 28(2) provides that “presumed” means presumed by the offender.
 Sikhs are covered under the racially aggravated provisions under section 28(4) CDA 1998 as an ethnic group. They were defined by the courts as an ethnic group in the seminal case of Mandla v Lee  3 All ER 1108;  2 AC 548
 Sending pork to a Jew could constitute racially aggravated harassment but sending beef to a Hindu would merely be ordinary criminal harassment, see N. Addison, op. cit., at 3.
 See Select Committee on Home Affairs, The Anti-Terrorism, Crime and Security Bill, November 2001, HC351. Appendix of Minutes of Evidence, Appendix B, op.cit.
 Sikhs are covered under the racially aggravated provisions under section 28(4) CDA 1998 as an ethnic group. They were defined by the courts as an ethnic group in the seminal case of Mandla v Lee  3 All ER 1108;  2 AC 548
 Runnymede Trust, Islamaphobia: A Challenge for All of us, op.cit.
 ibid. at 2.
 ibid. at 1.
 ibid. at 10.
 See appendix 14 of memorandum submitted by a consortium of Muslim Organisations to the Select Committee on Home Affairs, First Report, op.cit.
 ibid. Appendix 14. This point is difficult to verify since it is unclear whether the incidents represent an actual increase or an increase in reporting.
 ibid. Appendix B. Also see EUMC report on Anti-Islamic reactions in the EU after the terrorist acts against the USA, op.cit.
 Head covering worn by some Muslim Women, see S. Poulter, op.cit., at 386-387.
 Select Committee on Home Affairs, First Report, Appendix B, op. cit.
 ibid. Appendix 14, para 12
 ibid. para. 13.
 B. Parekh, Rethinking Multiculturalism. Cultural Diversity and Political Theory (London, Macmillan, 2000), at 9.
 B. Bowling and C. Phillips, Racism, Crime and Justice (Harlow, Pearson Ltd, 2002).
 S. Poulter, op. cit., at 129.
 Bowling and Phillips op. cit., at 12.
 ibid. at 13-18.
 Parekh, op.cit., at 195.
 C. Phillips and B. Bowling, Racism, Crime and Justice, op. cit., at 124.
 See R v Pal and R v White op. cit.
 See SAP, Racially Aggravated Crimes. Advice to the Court of Appeal, op. cit., at 3 para. 9.
 ibid. at 127.
 C. Phillips and B. Bowling, Racism, Crime and Justice op. cit., at 122.
 DailyTelegraph, 24 October 2001.
 London, Profile Books, 2000.
 See Proposal for a Council Framework Decision on Combating Racism and Xenophobia COM (2001) 664 Final, 2001.
 See Observations by the Commission of British Muslims and Islamophobia, Anti-terrorism, Crime and Security Bill, November 2001, op. cit.