Disability Hate Crime

Debate between Robert Buckland and Mark Durkan

Wednesday 23rd November 2011 Westminster Hall

[Mr Buckland]

I am grateful to the hon. Gentleman for dealing with a point that I was about to address and that has been alluded to by other Members. The focus needs to be shifted away from always analysing a case’s evidence by looking at the victim, and towards the wrongdoing and what the offender has done. That welcome shift of emphasis was displayed in guidance issued by the Crown Prosecution Service to prosecutors in England and Wales in March 2010. It is similar to the shift in focus that occurred some years ago in relation to domestic violence. People used to ask of the victim, “Why did she stay with him?”, instead of focusing on the behaviour of the perpetrator, which, I am glad to say, is what is now happening in cases of domestic abuse. The same must happen in relation to disability.

The danger we face in focusing on the victim and their behaviour is that in assuming that all disabled people are vulnerable just because of their disability, we start asking dangerous questions, such as, “Why don’t they avoid these situations? Why do disabled people put themselves in that position in the first place?” By asking those dangerous questions, we are at risk of driving disabled people back into their homes and into institutions, and away from mainstream society. That is wrong and I hope that today’s debate will give a clear message to the Government that we must avoid it. We are in danger of being as bad as the people in ages past who used to apply the dunce’s cap to disabled people in the classroom.

Such attitudes lead to other dangerous assumptions, such as that of some involved in the criminal justice system that disabled people are somehow unreliable or incredible witnesses, simply because of their disability. That is another dangerous and fatal assumption, which, I am afraid, has played far too great a part in the criminal justice system and has prejudiced and stopped cases involving disabled people. It has ended in miscarriages of justice involving disabled people.

I have mentioned the guidance, which was welcome. It followed a speech made by Lord Macdonald when he was Director of Public Prosecutions, which I think helped to clarify the CPS’s position and its understanding of disability. I welcomed his comments about the concept of hate. We have to be careful when using the word “hate”; we must make clear what it covers. The danger with the word is that hate is an extreme concept, so we think that there cannot be many people in our society capable of it. The definition, however, is a wider one, and includes hostility or prejudice. What does that mean? There are other words for hostility, such as unfriendliness, antagonism, meanness and sheer ignorance. That is particularly important when we consider that many acts are perpetrated over a long period. We have heard about many sad cases, both today and elsewhere, that involve the victims of a crime finally suffering the last straw that broke the camel’s back. It is important to remember that “hate” has a wide definition and involves a whole section of attitudes that I believe are bred from ignorance and sheer lack of understanding of the needs of disabled people. That leads to offences that take place on many levels; low-level offences can cause so much misery to the lives of disabled people.

We have been rightly reminded of the provisions of section 146 of the 2003 Act. To be fair to the drafters of that welcome provision, it says that the court “must” treat the fact that the offence was committed in an aggravating way when the offender, immediately at the time of the offence, or before or after it, demonstrated hostility based on the disability or presumed disability of the victim. The provisions are there; they are mandatory. The problem is with the previous stage, because there must be evidence of hostility beforehand, which is where the work of prosecutors becomes extremely important.

The guidelines include a welcome set of considerations that all prosecutors should consider when reviewing cases involving disability. They are the sort of factors that we have discussed today, such as previous incidents involving the victim and the offender. Are the incidents escalating in severity or frequency? Is the targeting becoming systematic and regular, rather than opportunistic offending? On the status of the offender, we have heard about so-called “friends” who befriend people and then manipulate the circumstances. A lot of proper questions are being asked in the guidelines. The key now is to ensure that in every case, those considerations are applied, looked at and checked in each case file.

Key actions could be taken now to help both prosecutors and sentencers. For example, section 146 should be flagged up as a consideration in every case file, so that when prosecutors assess and prepare the evidence, any sentencer is aware of it. In open court, the prosecuting solicitor or barrister should remind the court of their powers under section 146. Such nuts-and-bolts practical measures could see the sort of increase in the use of section 146 that was rightly referred to by the right hon. Member for Coatbridge, Chryston and Bellshill (Mr Clarke), and which we all want to happen.

Court practitioners and judges need more training on disability issues, most notably the use of section 146. The key point that I found, depressingly, time and time again is that the equation between disability and reliability has to be broken. We have to break that link in the hearts and minds of those involved in the system.

[Mark Durkan]

In respect of the whole question of sentence uplifts, the ECHR report stated that sentence uplifts have never been applied to any prosecution of rape or sexual assault where the victim was a disabled person. Is the point about the question of unreliability of people as witnesses, which the hon. Gentleman has just made, a factor in that?

[Mr Buckland]

I am grateful to the hon. Gentleman. I will address his point directly. There is no doubt in my mind that prosecutors who face a case where the victim has disabilities feel that somehow the prosecution will be an uphill struggle. Far too often, the use of special measures is not considered as much as it should be. For example, in a case that I was involved in, a person with a moderate learning disability was the victim of a rape. Through the help of an intermediary, the person was able to give evidence through a video link and a conviction was secured. The intermediary was a speech and language therapist. She was not only able to give confidence to the victim, but was there to assist the court if there was any ambiguity or lack of clarity to the jury in what the victim was saying. It was a most encouraging exercise, not only in achieving a fair result, but in making sure that the voice of that person was heard.

The role of intermediaries should be expanded and encouraged, not viewed as an unusual event in our courts. I think that there was an instinctive suspicion among practitioners that somehow the use of an intermediary would dilute the victim’s evidence, or would in some way interfere with the process of giving evidence. Those concerns are unfounded. People should think of intermediaries as officers who help the court, rather than people who somehow manipulate or interfere with the evidence. That is not my experience, nor that of many other people who have successfully used intermediaries. To put it bluntly, if the intermediary had not been there to assist the witness in that very serious offence of rape, I do not believe that we would have secured a conviction. I am grateful to the hon. Gentleman for raising that point.

It has already been said that in the past four years, despite the fact that there are 10 million disabled people in the UK, only 1,200 cases of hate crime have been prosecuted. On the basis of a recent Scope survey, conducted in May 2011, that is an incredibly low figure. The survey revealed that almost 60% of disabled people had experienced hostility, aggression or violence due to their impairment, and that half of disabled people said that they experience hostility on at least a weekly basis. Almost 40% of disabled people said that hostility had got worse in the past year. If we extrapolate those figures, we see that millions of people are suffering in silence or, when their voice is heard, that the situation is not being effectively dealt with by the authorities.

We have come a long way since society wished to institutionalise disabled people and wholly shut them out from the mainstream, but we still have a long way to go to ensure that when disabled people, rightly, access mainstream life, they do not become vulnerable because of the circumstances in which they put themselves. We must all, as a society, stop asking these dangerous questions: why do they come out into the mainstream and why do they put themselves in those positions? Let us focus on the offender. Let us focus on the offending. With that approach, we can achieve real results in the field of disability hate crime.

Fixed-term Parliaments Bill

Debate between Robert Buckland and Mark Durkan

Wednesday 1st December 2010 Commons Chamber

[Mark Durkan]

I will acknowledge these interventions no further.

To return to the matter at hand, let us be clear that the Bill’s provisions are open to all sorts of contests, questions and controversies. As I have said, I believe that the Minister was wrong to say that the House will know in all circumstances when something is a vote of confidence. If he wanted to make that incontrovertibly so, he would need to provide either in Standing Orders or in the Bill for a formal indication by the Speaker that a certificate could be issued prior to the period set out in the Bill, which starts 14 days after a motion. That, in turn, would bring the Speaker into areas of political controversy and intervention. Amendment 6 is clearly aimed at ensuring that those difficulties do not make the issuing of a certificate, or possibly the failure to issue one, a matter of controversy that can be brought to the courts.

In discussing previous amendments, Members alluded to affairs currently in Oireachtas Éireann and in the Dail. Those affairs may be relevant this week, because an opposition party there has indicated that it might take to the courts the question whether, under the constitution, the agreement that the Irish Government have entered into has to be subject to a vote of the Dail. Let us not rule out circumstances in which a party here, possibly a party of Opposition, could feel that the Speaker had wrongly declined to issue a certificate, or that the Government were using all sorts of procedural chicanery to prevent certificates being issued and to reset the clock. That party might then feel obliged to take the matter to court if it felt that it faced dead ends and chicanery in Parliament. That is exactly the situation that was threatened in Dublin this week given what the Irish Labour party justice spokesman said. Let us not join the Minister in completely dismissing all such possibilities.

I do not want to move from Dublin to Northern Ireland affairs, but I have some experience of what happens in practice. I was involved in negotiating and implementing the Good Friday agreement, including as a Minister and Deputy First Minister. Ministers told this House that procedures would follow their own course and that political matters would not end up in the courts, but then I found that my election as Deputy First Minister was taken to court—when I was jointly elected with David Trimble—because all sorts of rules were bent and twisted and the clock was reset by Secretaries of State and others.

The Northern Ireland Act 1998 set a clear six-week period, but Secretaries of State discovered that if they suspended things for 24 hours, there would be a new six-week period. Whenever there is a facility to contrive a completely new situation and dispose of a statutory deadline, it is used—whenever Ministers are told that in case of emergency they can smash the glass, they do so. Completely contrary to the assurances and explanations given to the House when we debated the 1998 Act, a number of Secretaries of State found themselves doing that. In addition, Assembly Members redesignated to pass particular votes, even though they said that they would not, and so on.

In the context of the Bill, people have said that a Government would never put themselves in the embarrassing position of activating a vote of no confidence in themselves or cutting corners, ignoring rules or resetting clocks so that they can bypass dates and deadlines, but the Northern Ireland experience shows that that is not so. The exigencies of the moment, and the demands for stability and good governance, can be used as circumstantial excuses. Let us not pretend otherwise. If we are trying to provide for fixed-term Parliaments with clear, fixed and guaranteed arrangements, we must go further than the Bill does. It leaves too much power in the hands of the Prime Minister and the Executive when there has been a motion of no confidence, and in respect of their influence over the decision of whether a motion is one of no confidence or otherwise.

I therefore ask the Minister to acknowledge that there are shortcomings in the Bill. Some of the amendments have their own shortcomings, but they do not diminish the serious problems with the Bill. If he will not accept amendments 6 and 23, will he agree to work in another place and in the House at another time to make his own amendments, so that the Bill does not create those difficulties and controversies?

Under the Bill, the Speaker could be the subject of controversy. What if there are differences between the Speaker and Deputy Speakers on the question whether to indicate in advance that a motion is certifiable? More importantly, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, I believe that such matters could find themselves before a court, not only because somebody might want to contest the fact or content of a certificate, but more importantly because people might want to contest the failure to issue a certificate or the fairly questionable proceedings in advance of it. We do not want the Speaker of the House of Commons to be caught in the same position as Scottish football referees. They have been accused of taking and changing decisions in relation to subsequent arguments and events. Let us protect the office of the Speaker and this House.

[Mr Robert Buckland (South Swindon) (Con)]

I rise to make a brief contribution. I have listened with great interest to the debate and I await with even greater interest the Minister’s response to the very well advocated position on amendment 6, with which I have great sympathy.

It seems blindingly simple to me. Clause 2(3) stops at the words, “for all purposes.” The comparison with section 3 of the Parliament Act 1911 has been made, so why not include the extra words,

“and shall not be questioned in any court of law”?

The amendment proposes the use of the word “whatsoever”, which was no doubt an attempt by my hon. Friend the. Member for Stone (Mr Cash) to deal with the European question—that is perfectly legitimate and I understand entirely the reason for his wording—but the point is the same: if such a provision was good in 1911, why is it not good now? If anything, the balance between Parliament and the courts has deteriorated, as the hon. Member for Stoke-on-Trent Central (Tristram Hunt) eloquently outlined. The balance is now extremely fine, and it is in danger of being overturned in favour of judicial activism.

It may well be that reliance will be placed upon the residual powers of article 9 of the Bill of Rights, but as an Act of Parliament, that too is subject to judicial interpretation. Over the years, it has been interpreted in a variety of ways by the courts. Notably, it has been impliedly waived or restricted by this House. Section 13 of the Defamation Act 1996 is a good example of Parliament deciding, in effect, to allow its privilege to be qualified. I have strong views on the wisdom of that legislation—it was foolish and has led to unintended consequences, which are at the heart of this debate.

No Member of Parliament wants a diminution of its authority or power. This is an elected Chamber and we represent the people of this country. Sovereignty means just that. It is right that all hon. Members worry—even if it is sounds like lawyers’ caution—about any further unintended diminution of our authority. That is why I support amendment 6. Why not change clause 2(3) to put things as far beyond doubt as possible, mirroring what legislators did in 1911, to ensure that the spectre of the judiciary questioning and second-guessing the proceedings of the House does not become a reality?