21 May 2015
‘Well, I never heard it before, but it sounds uncommon nonsense’ (Lewis Carroll, Alice in Wonderland )
by Lynda Goetz
Last week head teacher Janet Felkin was apparently cleared of a ‘disability hate crime’. A what?!
I checked my copy of George Orwell’s ‘1984’ and could only find reference to a ‘thought crime’. But what, I wondered, is the difference. Indeed is there any? It seems that Ms Felkin, a head teacher with some 40 years’ experience in the teaching profession had made the mistake of referring to an autistic child in her school as having ‘special needs’ in a governors’ meeting. The father of said child, who was one of the parent governors, for some reason objected to this and reported Ms Felkin to Brighton and Hove City Council’s Partnership Community Safety Team (that is Newspeak for what exactly?) which proceeded to launch a full-scale investigation – bringing in the Sussex police force, the Department for Education and the lawyers. Six months and I imagine a lot of public money and wasted time later, not to mention an unpleasant, difficult and frustrating period in her career for Ms Felkin, she was, thank goodness for common sense, found not guilty.
I have to confess that until I read about this in a small paragraph in one of the daily newspapers I had not actually registered that such a thing as ‘disability hate crime’ really existed. Some research revealed that there are five bases on which accusations of ‘hate crimes’ can be made: race; religion; sexual orientation; disability and transgender identity. Police forces record incidents based on these five characteristics. (Greater Manchester Police Force also now records ‘alternative sub-culture’ hate incidents. So affronted Goths, Emos and Punks what are you waiting for?!) Disability hate crime, brought into existence by s146 of the 2003 Criminal Justice Act, is defined in the CPS brochure on Prosecuting Disability Hate Crimes as “Any incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s disability or perceived disability” (my italics). So what sort of crime is this exactly? A non-crime that becomes a crime by virtue of another’s perception of the motivation behind the action or the words? Shades of Alice. Fortunately, not exactly. S146 can, in fact, only apply once the prosecution has proved that a criminal offence has been committed and then have proved that ‘the offence was aggravated by hostility based on the defendant’s disability’. Surely in this instance it should not have taken the police ‘weeks’ to ascertain that no crime had been committed? My step son who, to use the currently correct terminology is ‘on the autistic spectrum’, and has a ‘statement of special needs’ could have worked out in a few seconds that there was clearly no crime.
The application of these laws is quite complicated and not all five of the bases are on an equal footing. A Law Commission consultation in 2013 looked into whether these crimes should be extended but its terms of reference were limited and it concluded both that they should not and that the enhanced sentencing was under-used. This may be because like all ‘thought crimes’, hate crimes can be easy to report, but difficult to prove – unless of course you live in a police state.