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The Shaping, Enactment and Interpretation of the First Hate-Crime Law in the United Kingdom - An Informative and Illustrative Lesson for South Africa*

K Naidoo**

Pioneer in peer-reviewed, open access online law publications

Author

Kamban Naidoo

Affiliation

University of South Africa South Africa

Email knaidoo@unisa.ac.za

Date published

2 October 2017

Editor Prof K Beiter

How to cite this article

Naidoo K "The Shaping, Enactment and Interpretation of the First Hate-Crime Law in the United Kingdom -An Informative and Illustrative Lesson for South Africa

"PER / PELJ 2017(20) - DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1356

Copyright

.

DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1356

Abstract

Hate crimes are crimes that are motivated by personal prejudice or bias. Hate-crime laws criminalise such conduct and allow for the imposition of aggravated penalties on convicted perpetrators. This article examines the historical, social and political factors which influenced the shaping and enactment of the first British hate-crime law. The South African context is also considered since the Department of Justice has recently released the Prevention and Combatting of Hate Crimes and Hate Speech Bill for public commentary and input.

While Britain has had a long historical record of criminal conduct that was motivated by the race and the ethnicity of victims, it was only in the twentieth century that civil society first drew attention to the problem of violent racist crimes. Nevertheless, successive British governments denied the problem of racist crimes and refused to consider the enactment of a hate-crime law. Following a high-profile racist murder and a governmental inquiry, a British Labour Party-led government eventually honoured its pre-election commitment and passed a hate-crime law in 1998.

Some parallels are apparent between the British and the South African contexts. South Africa also has a long historical record of racially motivated hate crimes. Moreover, in the post-apartheid era there have been numerous reports of racist hate crimes and hate crimes against Black lesbian women and Black foreigners. Despite several appeals from the academic and non-governmental sectors for the enactment of a hate-crime law, and the circulation for public commentary of the Prevention and Combating of Hate Crimes and Hate Speech Bill, such a law has hitherto not been enacted in South Africa. This article posits that the enactment of a hate-crime law is a constitutional imperative in South Africa in terms of the right to equality and the right to freedom and security of the person. While the enactment of a hate-crime law in South Africa is recommended, it is conceded that enacting a hate-crime law will not eradicate criminal conduct motivated by prejudice and bias.

Keywords

Hate crime; hate-crime laws; United Kingdom; Crime and Disorder Act of 1998; South Africa; constitutional imperative.

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1 Introduction

This article examines the factors that shaped the enactment of the first hate-crime law in the United Kingdom and includes a brief overview of its contents and interpretation. The South-African context is also considered, since the Department of Justice has recently released a hate-crime bill for public commentary and scrutiny.1 Hate crimes2 were first recognised as a specific category of criminal conduct worthy of an enhanced penalty in the United States of America.3 The enactment of hate-crime laws4 in the United States of America has had an influence on the enactment of hate-crime laws in a

* The "United Kingdom", which is a shortened form of reference to the "United Kingdom of Great Britain and Northern Ireland", refers to three distinct jurisdictions, namely, England/Wales, Scotland and Northern Ireland. However, reference to the United Kingdom in this article is to the first jurisdiction, England/Wales. Hence, the hate-crime law that will be discussed in this article is the hate-crime law that is applicable to England and Wales. The term "Britain", which is also used in this submission, is an appellation that is commonly used to refer to the United Kingdom of Great Britain and Northern Ireland. See Vick 2002 Tex Int'l LJ 329.

** Kamban Naidoo. BA LLB (UDW) LLD (Unisa) DSU (University of Paris). Senior Lecturer, Department of Criminal and Procedural Law, Unisa. Knaidoo@unisa.ac.za.

1 Refer to the Prevention and Combatting of Hate Crimes and Hate Speech Bill, 2016, which was released for public commentary in late 2016. It is the author's submission that in the light of the fact that the Republic of South Africa was once a British colony reference to the British context is appropriate, since some of the substantive law and much of the procedural law of South Africa have been influenced by the British common law.

2 Hate crimes are crimes which are motivated by the perpetrator's prejudice or bias towards personal characteristics of the victim such as race and ethnicity. The perpetrator's motivation is referred to as a "bias motivation". See further Lawrence Punishing Hate 9; Gerstenfeld Hate Crimes 25. While hate crimes generally refer to crimes committed by a single perpetrator or by a small group of perpetrators, it should be noted that in the historical examples of hate crimes that are briefly referred to in this submission, there is an element of state or government complicity. The historical examples of hate crimes were also perpetrated on a larger scale. This is indeed true of slavery, genocide and the crime of apartheid. See Gerstenfeld Hate Crimes 290.

3 There is some consensus that the USA was the first country to enact hate-crime laws. See Levin 1999 J Contemp Crim Justice 6; Gerstenfeld Hate Crimes 31-32; Hall Hate Crime 18. Consequently, much of the legal and social-sciences literature relating to hate crimes is of American origin. Therefore, reference to the USA in this submission, which focuses on the British and South-African contexts, is unavoidable.

4 Hate-crime laws criminalise conduct motivated by the perpetrator's prejudice or bias towards personal victim characteristics such as race, ethnicity and sexual orientation. Once convicted of such conduct, a perpetrator is usually subjected to an enhanced or aggravated penalty. See for example the American federal hate-crime statute, the Matthew Shepherd and James Byrd Junior Hate Crimes Prevention Act, 2009 (codified as 18 USC §249). S 7(a)(1) of this statute creates a specific crime of wilfully causing bodily injury to a person because of that person's actual or perceived race, colour, religion or national origin.

number of other jurisdictions, particularly those in democratic western nations.5

5 See, for example, the hate-crime law that was passed in France in 2003 that is commonly referred to as La loi no 2003-88 du 3 février 2003.

6 The term "British" presently refers to the inhabitants of England, Wales, Northern Ireland and Scotland, who could belong to different racial groups. In the historical examples of hate crimes that are referred to in this submission, however, the terms "British" and "Britons" refers to White persons. It should also be noted that most of the historical literature refers to the perpetration of hate crimes in England.

7 Several writers have alluded to a myth of British fairness, tolerance, and non-violence. See for example Panayi "Anti-Immigrant Riots in Nineteenth and Twentieth-Century Britain" 1-2; Lawrence 2003 J Mod Hist 559 refers to a "myth of British peaceableness"; Jackson 1998 Geography 203 writes of a "British notion of fair-play"; Waters 1997 J Br Stud 238 refers to a "myth of British tolerance".

8 Waters 1997 J Br Stud 211.

This submission commences with a broad overview of the most significant historical, social and political factors that shaped the enactment of the Crime and Disorder Act of 1998 in the United Kingdom. Included in the historical overview is the debunking of a myth that the British6 were historically a peaceful and tolerant nation. After a brief overview of the contents and the judicial interpretation of the Crime and Disorder Act of 1998 has been provided, the South-African context is examined. The perpetration of hate crimes in the post-apartheid era, which culminated in the publication of the Prevention and Combatting of Hate Crimes and Hate Speech Bill, is considered. Also interrogated are recent social and political developments that have contributed to a delay in the enactment of a hate-crime law in South Africa. The article concludes with a consideration of why such an enactment is a constitutional imperative in South Africa. In the conclusions and recommendations, some parallels are drawn with the context which obtains in the United Kingdom.

2 Britain

2.1 Debunking a British myth

The British have historically been portrayed as a peaceful, tolerant and fair nation.7 Waters8 refers to a widespread "fiction" which captured the popular British imagination in the 1930's and 1940's at a time of increasing European Fascism and writes:

The Britons were reinvented as members of an essentially unassuming nation ... a quiet, private and ordinary people, defined by their modesty, kindness to others, loyalty, truthfulness, straightforwardness and simplicity.

However, this myth is shattered by the historical accounts of foreign peoples, both light and dark-skinned, who have arrived in Britain since time

immemorial and who have been subjected to discrimination and violent conduct that would presently be considered as hate crimes.9 The post-Second World War period is significant since this is when Britain became a veritable multiracial and multicultural society.

9 See for example Panayi "Anti-Immigrant Riots in Nineteenth and Twentieth Century Britain" 5 and Bowling Violent Racism 24 for some of the historical accounts of British hostility towards Jews which included a massacre of 30 Jews in London in the 12th century. Also see: Brearly "Persecution of Gypsies in Europe" 354-355 for the historical accounts of how Gypsies or "Travellers" were persecuted and punished in England. Also refer to Fryer Staying Power 8-18 and Hiro Black British, White British 4 for a history of Blacks in Britain. It should be noted that the term "Black" is used in a narrow sense in this article to refer to persons of African origin. Despite a prohibition on slavery in Britain, Blacks were employed as household slaves and were subjected to corporal punishment until the 19th century. In the 20th century, a "colour bar" was in effect throughout Britain from the period of the First World War to the 1950s. The "colour bar" referred to a socially sanctioned form of discrimination in terms of which non-white persons were refused admission to hotels, restaurants, boarding houses, public houses, dance halls and public swimming pools. See further Bowling Violent Racism 26 and Hiro Black British, White British 32-34 and the case of Constantine v Imperial Hotels Ltd [1944] KB 693, which was one of the few legal challenges to the British "colour bar".

10 It should be noted that Jews do not constitute a distinct racial group and could be White or Black. See D'Souza 1995 American Scholar 522. However, most British Jews were and still are White. The perpetration of hate crimes against Jews in Britain could therefore be considered as a form of ethnically or religiously-motivated hate crime.

11 See Kushner "Anti-Semitism and Austerity" 149.

12 See Hiro Black British, White British (1971) 8 and Fryer Staying Power 372.

13 See Gerstenfeld Hate Crimes 265.

14 See Bowling Violent Racism 30-43.

15 While nine White youths were charged with inciting the 1958 riots and received sentences of four years each for their role, the official government response was that the riots were not caused by racists, but were caused by hooligans who had no respect for law and order. See Bowling Violent Racism 32. It should be noted that reference to "Asians" in this submission is to persons whose origins lie in the Indian sub-continent, which includes India, Pakistan and Bangladesh.

2.2 Post-Second World War Britain

Of significance in the period after the Second World War were several anti-Semitic riots which erupted in 1947 in the cities of Manchester and Liverpool when Jews10 and Jewish-owned businesses were targeted for acts of violence and vandalism.11 During the post-Second World War period British colonial subjects from the Caribbean, India, Pakistan and Africa immigrated to Britain en masse.12 Most of the early immigrants were people of colour who contributed to a diverse British society in which sporadic incidents of racially and ethnically-motivated hate crimes have occurred.13 Bowling14 has chronicled the violent London and Nottingham race riots against Jamaicans and Asians in 1958.15 There were also several subsequent outbreaks of racist violence against Asians, who were referred to by the

derogatory term "Pakis".16 The post-Second World War period is also significant since Blacks and Asians, as opposed to Jews, became the targets of white-British hostility and violence.17

16 Horobin 1972 Police Journal 184.

17 Panayi 1991 Social History 142.

18 The Race Relations Act of 1965 was the first anti-discrimination law in Britain. See ss 1 to 5 of the Race Relations Act, 1965, in terms of which discriminating against a person by refusing access to public places such as hotels, public houses, cinemas, restaurants and public transport on the grounds of colour, race, or ethnic or national origin became a civil offence. S 6 of the Race Relations Act, 1965 criminalised "incitement to racial hatred". According to Lawrence "Memory, Hate and the Criminalization of Bias-Motivated Violence" 143, the incitement to racial hatred-provision in the Race Relations Act, 1965 was significant since this was the first British law to specifically address the problem of racial violence.

19 Malik 1999 MLR 409. According to Malik there was thus some potential to deal with racially-motivated crimes prior to the enactment of a British hate crime law.

20 See for example the cases of R v Whalley (1989) 11 Cr App R (S) 405, CA; R v Alderson (1989) 11 Cr App R (S) 301, CA.

21 Bowling Violent Racism 42-44.

22 The Skinheads were a youth sub-cultural group who were often involved in violent attacks on Asians. These attacks were colloquially referred to as "Paki-bashing". See Campbell and Muncer 1989 Deviant Behaviour 274.

23 Billig 1978 Race and Class 161; Edgar 1997 Race and Class 111-120.

24 Bowling Violent Racism 43.

2.3 The enactment of an anti-discrimination law

Despite the enactment of the Race Relations Act in 196518, hate crimes, and in particular crimes motivated by race and ethnicity, were still not recognised as a specific category of criminal conduct in Britain. However, British judges had some discretion to consider a racist motivation as an aggravating factor at sentencing.19 In several cases, the British Court of Appeal alluded to the importance of considering a "racial element" as an aggravating factor at sentencing in crimes of violence.20

2.4 Racial violence from the 1970s to the 1980s

Bowling21 attributes the increase in racial violence in Britain in the early 1970s to the moral panic on immigration that had been caused by Enoch Powell, a Conservative member of parliament, the influence of the Skinheads22 and the growth of the National Front, an openly racist and fascist British political party whose literature espoused anti-Semitism, anti-miscegenation and the possible loss of White British identity.23 Bowling24 refers to 150 racially-motivated assaults in the east of London in the early 1970s, the racially-motivated murders of five Asians and Blacks across Britain in the period from 1970 to 1973, several arson attacks on Black homes and "Paki-bashing" and "nigger-bashing" becoming the norm in

several London schools. A racial motive was presumed in almost all the cases of murder, since the victims had not been robbed.25

25 Moreover, the perpetrators of the murders were never identified. See further Ramamurthy 2006 Race and Class 42; Bowling Violent Racism 43-44.

26 Ramamurthy 2006 Race and Class 55. The Newham Monitoring Group from the East of London and the Southall Monitoring Group from a predominantly Asian area in the West of London led such campaigns.

27 See Runnymede Trust date unknown http://www.runnymedetrust.org/histories/race-equality/82/inquiry-into-racist-groups-and-attacks.html.

28 See Layton-Henry 1982 Patterns of Prejudice 9; Bowling Violent Racism 75-77.

29 There is a trend in some British literature to refer to all communities with foreign origins as "ethnic minority communities" or "ethnic minority groups". It should be noted, however, that the description "ethnic minority" could transcend skin colour since it could refer to White minority groups in Britain with foreign origins.

30 Bowling Violent Racism 75-77.

31 Layton-Henry 1982 Patterns of Prejudice 9. The report also found that racist crimes consisted of verbal assaults, harassment, damage to property and more serious physical assaults which involved grievous bodily harm and murder.

32 Webster "England and Wales" 78. However, Webster writes that Black and Asian communities underreported racist incidents to the police. Moreover a racial incident was vaguely defined in the Metropolitan Police Force Orders as "any incident, whether concerning crime or not which is alleged by any person to include an element of racial motivation or which appears to the reporting or investigating officer to include such an element". A racial incident thus depended on the highly subjective decision of the police officer or "any person".

33 Gadd 2009 Br J Criminol 755-756.

In the absence of any official commitment from the British government to address the issue of violent racist crimes until the early 1980s, several community organisations led mass campaigns against racist crimes.26 After meeting with several anti-racist organisations, the British Home Office announced in February 1981 that it would launch an inquiry into racist organisations and racist crimes and would consider the possibility of establishing special police units to deal with racist crimes.27 The report commissioned by the Home Office in 1981 into racist organisations and racist crimes focussed on areas in Britain with high concentrations of immigrants and on incidents against persons and property where there was some indication of a racist motive.28 Released in late 1981, the report established that ethnic-minority communities29 lacked confidence in the police, that they were subjected to police harassment, that the police were unresponsive to their needs, that White suspects were often released with a mere warning, and that the police underestimated the seriousness of violent racist crimes.30 The report also found that Asians were 50 times more likely than Whites to be the victims of racist crimes and that Blacks were 36 times more likely than Whites to be the victims of racist crimes.31 The publication of this report resulted in several positive outcomes. From 1986 the police began to recognise the problem of violent racist crimes and began recording incidents of a racist nature.32 According to Gadd,33 the Home

Office report marked the official endorsement of more comprehensive research by the Home Office on racially-motivated violence. The issue of racial violence was also accorded priority by a number of government bodies including the Metropolitan Police, the Association of Chiefs of Police, the Home Office and the House of Commons.34 The reality, however, was that most rank and file police officers were reluctant to ascribe a racist motive to crimes, and considered lower-level, less violent racist crimes as unworthy of investigation.35 A significant legal development in the 1980s was the reformation of the offence of incitement to racial hatred36 and its inclusion in the new Public Order Act of 1986.37 A two-year period of imprisonment or a fine could be imposed for a conviction of incitement to racial hatred.38

34 Bowling and Phillips "Racist Victimisation in England and Wales" 164.

35 Bowling and Phillips "Racist Victimisation in England and Wales" 164; Bowling, Parmar and Phillips "Policing Ethnic Minority Communities" 542.

36 Malik 1999 MLR 415.

37 Ss 17-18 of the Public Order Act of 1986 describes racial hatred on the basis of race, nationality, citizenship, ethnicity or national origin. The offence of incitement to racial hatred includes acts likely to stir up racial hatred, including threats, insults, words, behaviour, displays and written materials which could be committed in public or certain private places.

38 Refer to s 27 of the Public Order Act, 1986.

39 Malik 1999 MLR 409.

40 Webster "England and Wales" 69; Bowling and Phillips "Racist Victimisation in England and Wales" 154.

41 Webster "England and Wales" 69; Bowling and Phillips "Racist Victimisation in England and Wales" 154.

2.5 The murder of Stephen Lawrence

Despite the increased public awareness of racially-motivated crimes after the publication of the 1981 Home Office report on racist violence, the British government was still reluctant to introduce a specific crime of racial violence, or a law that was comparable to an American hate-crime law. In 1994 the Home Secretary rejected calls by the Home Affairs Committee to introduce a hate-crime law since he was of the view that all violent crimes, irrespective of motivation, could be adequately addressed by the existing criminal law.39

The 1993 murder of Stephen Lawrence led to significant changes in official attitudes towards racist violence. On April 22, 1993 Stephen Lawrence, an 18-year old Black teenager, was accosted by a group of five White youths who directed racist insults at him and stabbed him twice.40 The attackers fled the scene and Lawrence died a short while later.41 The subsequent police investigation of Lawrence's murder has been described as flawed

and incompetent.42 The police were aware that the five identified suspects had a history of racist violence in the area43 but postponed surveillance of the five youths for two days.44 Moreover, the Stephen-Lawrence murder was not identified as a racially-motivated crime.45

42 Webster "England and Wales" 69; Bowling and Phillips "Racist Victimisation in England and Wales" 154.

43 McLaughlin and Murji 1999 Crit Soc Pol 64; Bridges 1999 J Law & Soc 313-314.

44 Bridges 1999 J Law & Soc 298-299.

45 Lea 2000 Howard J Crime Justice 221.

46 Foot 1991 Socialist Review 3; Dixon and Ray 2007 Probation Journal 111.

47 Bridges 1999 J Law & Soc 304; Mclaughlin and Murji 1999 Crit Soc Pol 61; Lea 2000 Howard J Crime Justice 219-220.

48 Bridges 1999 J Law & Soc 315.

49 Bridges 1999 J Law & Soc 315-319; Lea 2000 Howard J Crime Justice 224.

50 Malik 1999 MLR 409.

51 Iganski 1999 Crit Soc Pol 129-130.

52 Iganski 1999 Crit Soc Pol 129-130.

53 Hereinafter referred to as the Crime and Disorder Act.

54 Section 28 of the Crime and Disorder Act, 1998.

While the perpetrators of Stephen Lawrence's murder were never convicted despite a five-year investigation, the persistence of the victim's parents, the considerable media coverage and political support eventually resulted in a government decision in 1998 to hold a public inquiry into the murder, headed by Lord Macpherson.46 The most significant finding of the Macpherson Report was that institutional racism existed in the Metropolitan Police and in most British police departments.47 The report also recommended that the recording and investigation of racist crimes should be improved.48 The report further recommended that all government agencies across the criminal-justice system should adopt the same approach to racist crimes and that all role players in the criminal justice system should undergo antiracism and diversity-awareness training.49

2.6 The enactment of the Crime and Disorder Act of 1998 and its interpretation by British courts

One of the commitments of the British Labour Party in its 1998 election manifesto was that it would ensure the passing of a new law to criminalise racially-motivated violence and harassment.50 The impetus for such legislation had come from the increase in racist incidents which had been reported to police since the 1980s and an increase in anti-Semitic incidents that were reported to the Board of Deputies of British Jews.51 Shortly after coming to power in 1998, the new labour government passed the Crime and Disorder Act.52 The Crime and Disorder Act of 199853 creates several "racially-aggravated" crimes and allows for enhanced sentences to be imposed for convictions of racially-aggravated crimes.54 The crimes that are capable of racial aggravation are assault, criminal damage, public-order

offences and harassment.55 The racially-aggravated crimes in the Crime and Disorder Act were the first time that crimes in Britain were specifically characterised by a racist motive.56 According to Taylor,57 the racially-aggravated crimes are "all parasitical on existing offences ... but with the added ingredient of racial aggravation". The Crime and Disorder Act thus subjects a select group of crimes to enhanced penalties provided that these crimes were motivated by "racial hostility" as set out in the Act.58 A "racial group" in this act includes race, colour, nationality and the ethnic or national origin of the victim.59

55 Sections 29-32 of the Crime and Disorder Act. According to parliamentary debates on the Crime and Disorder Act, 1998, these crimes were specifically chosen because they represented the most frequently reported racist crimes.

56 See Walters 2006 UTSLR 67.

57 See Taylor date unknown http://www.ucian.ac.uk/research/environment/projects/ assets/Racial_Aggravation_final_paper.pdf.

58 It should be noted that s 82 of the Crime and Disorder Act enables a court to consider an accused's hostile motives as an aggravating factor at sentencing for any offence not listed in the Act.

59 Iganski Hate Debate 3.

60 The crime of "racially aggravated harassment" is created by s 32 of the Crime and Disorder Act. The actual crime of harassment, however, is to be found in the Protection from Harassment Act of 1997, which creates offences relating to stalking and putting people in fear of violence. According to the definition of harassment in s 1 of the Protection from Harassment Act, 1997, "a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment". It has to be shown that the defendant had undertaken a "course of conduct" which led the victim to fear that violence would be used against him. See Herring Criminal Law 356. However, the fear of violence requirement neither requires "imminence" nor the need to show that a psychological injury was inflicted. See Ashworth and Horder Principles of Criminal Law 328.

61 R v Jacobs [2001] 2 Cr App R (S) 174, CA.

62 R v Jacobs [2001] 2 Cr App R (S) 175 CA.

63 R v White [2001] EWCA Cri 216, 1 WLR 1352, CA.

64 In hoc casu, both the defendant and the victim were Africans.

65 DPP v Woods (2002) EWHC 85.

In practice, many of the cases that have been prosecuted under the Crime and Disorder Act have involved the crime of racially-aggravated harassment.60 In the case of R v Jacobs61 the White defendant had told an Asian policewoman who was attempting to conduct a search: "I don't want you (sic) ... filthy Paki hands on me!" The defendant continued to verbally abuse the policewoman. The Court of Appeal confirmed her conviction for racially-aggravated harassment and held that although the defendant had not actively gone out looking to victimise another person, it was the duty of the court to protect police officers on duty and in particular Asian police officers who should not be spoken to in such a manner.62 In R v White63 the defendant had referred to an African female bus conductor as an "African bitch".64 He was convicted of racially-aggravated harassment. In DPP v Woods65 the defendant was convicted of racially-aggravated harassment

for referring to the doorman of a nightclub as a "black bastard". In the case of DPP v Pal66 the court was faced with a man of Asian appearance who had been verbally abused by the defendant, who was also Asian and had called him, inter alia, "a Brown Englishman". However, the court found that the state had not shown that the racial hostility was materially based on the victim's ethnicity and thus found that the offence was not shown to be racially aggravated.

66 DPP v Pal [2000] Crim LR 756.

67 Johnson v DPP [2008] EWHC 509 (Admin).

68 Athwal, Bourne and Wood Racial Violence 3-6.

69 Athwal, Bourne and Wood Racial Violence 3. According to the findings of the study, political parties in Britain deny the seriousness of racial violence in the United Kingdom.

70 Athwal, Bourne and Wood Racial Violence 6.

71 Reference to case law and case citations could have facilitated access to the court reports.

72 Under s 82 of the Crime and Disorder Act, a racist motive can serve as an aggravating factor in the prosecution of any offence not listed in the Act.

In Johnson v DPP67 the court recognised the principle that the racially-aggravated offences in the Crime and Disorder Act may be committed by minority ethnic-group members against members of the majority White population. In this case, a Black man had verbally threatened two White parking-lot attendants and told them to return to a "White area". His conduct was held to be sufficient to convict him of a racially-aggravated public order offence. The court held that reference to the skin colour of the parking-lot attendants constituted racial hostility.

While the cases prosecuted under the Crime and Disorder Act that have been referred to above would seem to suggest that hate crimes in Britain most often involve racist verbal abuse and are thus not serious crimes, a 2010 study published by the London-based Institute of Race Relations suggests otherwise.68 The study by the Institute of Race Relations found that between 1993, the year in which Stephen Lawrence was murdered, and 2009, "89 people lost their lives to racial violence".69 In more than half the incidents, young White men had attacked and killed Asians, Blacks and people of colour in "random acts of unprovoked violence". The victims were often taxi drivers, workers at takeaway food outlets, and shop workers who worked alone at night and were therefore more susceptible to violence.70 One shortcoming of the Institute of Race Relations study is that case citations of the prosecutions are not included.71 However, from the study's reference to the imposition of aggravated penalties in the discussion of some of the cases, it is possible to gauge that the convicted perpetrators were sentenced in terms of the Crime and Disorder Act.72 Reference is made to the murder of Anthony Walker, a Black teenager who was killed

with an axe by a racist gang of Whites in Merseyside in July 2005.73 The murder was recorded as a racially-motivated crime by the police. In December 2005 Paul Taylor pleaded guilty to the murder and was sentenced to a 25-year period of imprisonment. His accomplice, Michael Barton, a teenager, was sentenced to an 18-year period of imprisonment. In another case referred to in the study, Mohammed Pervaiz, an Asian taxi driver, died from head injuries following a racially-motivated attack.74 At the January 2007 trial of the four teenagers who were charged with Pervaiz's murder, the court found that the perpetrators had planned the attack and had used racist language. Two of the perpetrators, who the court established were the ringleaders of the attack, were found guilty of racially-aggravated murder and sentenced to periods of 25 and 21 years of imprisonment. The Institute of Race Relations study also found that British police had improved their handling and investigation of racist murders.75

73 Athwal, Bourne and Wood Racial Violence 5.

74 Athwal, Bourne and Wood Racial Violence 6.

75 Athwal, Bourne and Wood Racial Violence 8.

76 After an increase in attacks on British Muslims following the September 11, 2001 terrorist attacks on the World Trade Centre in the USA, the British government passed the Anti-Terrorism, Crime and Security Act of 2001. This Act amended the Crime and Disorder Act to include religiously-motivated crimes. See Bleich 2007 Am Behav Sci 157. The enactment of the Criminal Justice Act of 2003 allows for the consideration of homophobia and physical and mental disability as victim characteristics that may be considered as aggravating factors at sentencing. See Iganski Hate Debate 3.

2.7 Britain: preliminary conclusions

Within the British context, several ethnic-minority community organisations first raised the issue of the problem of racial violence. This led to greater public awareness of racially-motivated crimes and to the 1981 Home Office report on Racial Attacks. The high profile racially-motivated murder of Stephen Lawrence in 1993 and the subsequent Macpherson Report may be considered as the catalysts for the enactment of the Crime and Disorder Act. However, it was the British Labour Party which fulfilled its pre-election commitment to ensure the passing of a hate-crime law. The ultimate decision to pass a hate-crime law in Britain was therefore a political one which was made by the Labour Party, the majority political party at the time. While race and ethnicity were the most significant victim characteristics which influenced the shaping of the first British hate-crime law, further hate-crime laws have been passed in Britain, which recognise other victim characteristics.76

3 South Africa

3.1 Background

South Africa has a long historical record of racially-motivated crimes, which includes crimes against indigenous peoples,77 slavery78 and the policy of apartheid, which was explicitly based on race.79 Apart from institutionalising racial segregation80 and denying the most basic human rights to the majority of the population, the apartheid policy also prevented meaningful interracial relationships and socialising between the races and perpetuated a colonial system of tribalism between African peoples.81 It is submitted that the perpetration of hate crimes in South Africa more than twenty years after the birth of democracy could be regarded as a vestige of the system of apartheid.

77 See Adhikari Anatomy of a South African Genocide 39-44 and Matthias 1980 Paideuma 123-128, which refers to the genocide of the Khoi and San peoples in the Cape from the 16th century onwards.

78 See Worden 2007 Kronos 15-17 for a discussion of some of the types of punishment that were imposed on Cape slaves, who were mostly Asians and Africans.

79 Apartheid was declared a crime against humanity by the General Assembly of the United Nations in 1973. See:the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973).

80 The classification of South Africans into races predates the commencement of the apartheid-era in the late 1940's. However, until the apartheid era there were no real legislative efforts to define race groups. See Posel 2001 Afr Stud Rev 88-90.

81 Mangcu Sunday Times 21.

82 See Naidoo Historical and Comparative Legal Study 486-487 for some of the accounts of racist crimes in the post-apartheid period. For example, in 2001 four White teenagers, referred to as the "Waterkloof Four", were convicted of murder after they had killed a homeless Black man. In 2015 Andre van Deventer assaulted his Black domestic helper and called her a "kaffir". He was convicted of assault and crimen iniuria.

83 See Naidoo and Karels 2012a Obiter 243-250 for the accounts of "corrective rape" that have been perpetrated against Black lesbian women. "Corrective rapes" refer to rapes in which lesbian women are specifically targeted by heterosexual men in order to change or correct the sexual orientation of the victims. It is impossible to quantify the number of "corrective rapes" in South Africa due to a culture of non-reporting. Moreover, Naidoo and Karels estimate that at least ten Black lesbian women were murdered in South Africa between 2006 and 2009.

84 Apart from the perpetration of sporadic crimes against Black foreigners, there have been two countrywide outbreaks of xenophobic violence in the post-apartheid era. In the first outbreak of mass xenophobic violence, which occurred between May and June 2008, more than 60 Black foreigners were murdered and thousands were displaced. See Breen and Nel 2011 SA Crime Quarterly 43. In the second outbreak of mass xenophobic violence, which occurred between March and April 2015, the shops of Black foreigners were specifically targeted for acts of vandalism, robbery and theft. See: Nair, Savides and Hosken 2015

In the post-apartheid era, there have been sporadic reports of crimes that have been motivated by race.82 However, the perpetration of hate crimes against Black-lesbian women83 and Black foreigners84 in post-apartheid

http://www.timeslive.co.za/thetimes/2015/04/15/flames-of-hate . It is the writer's submission that Black foreigners are specifically targeted by Black South Africans because of their ethnicity.

85 See further Breen and Nel 2011 SA Crime Quarterly 33; Naidoo and Karels 2012b Obiter 624; Mollema and Van der Bijl 2014 Obiter 679; Harris 2004 http://www.csvr.org.za/docs/racism/arrangingprejudic.pdf .

86 The Hate Crimes Working Group is a multi-sectoral civil-society organisation which focuses on gender-based violence against the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, xenophobic hate crimes and hate crimes motivated by race, religion and disability. Several civil-society organisations and non-governmental organisations are members of this organisation. See Hate Crimes Working Group http://hcwg.org.za/about/.

87 See Nosarka The Citizen 4.

88 Chapter 9 institutions were established in terms of ch 9 of the Constitution of the Republic of South Africa, 1996 in order to strengthen democracy. They include the Office of the Public Protector, the Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Commission for Gender Equality.

89 Jeffrey 2015 http://www.justice.gov.za/m_speeches/2015/2050211_Hate Crimes.html.

90 Hereinafter referred to as the "Draft Policy". See Radebe 2013 http://www.justice.gov.za/m_speeches/2013/20130825-hate-speech.html .

91 Forde 2016 http://www.financialmail.co.za/coverstory/2016/01/21/racism-hate-law .

92 The recent public debate on hate speech commenced in January 2016 when Penny Sparrow, a White South-African woman, referred to Black South Africans as "monkeys" on her Facebook page. See Anon 2016 http://www.timeslive.co.za/local/2016/04/01/Law-to-criminalise-hate-speech-nearly-ready.

South Africa prompted calls from the academic and non-governmental sectors for the enactment of a hate-crime law.85 The perpetration of such conduct has also contributed to the formation of the South African Hate Crimes Working Group in 2009.86 The Hate Crimes Working Group has made several submissions to the South African Department of Justice and numerous public calls recommending the enactment of a hate-crime law in South Africa.87 In 2013 a National Task Team consisting of government departments, chapter 9 institutions88 and civil-society organisations was established by Jeff Radebe, the former Minister of Justice, in order to address the issue of hate crimes in South Africa.89 After intensive research and consultation the National Task Team formulated a draft policy document entitled "Combatting Hate Crimes, Hate Speech and Unfair Discrimination".90 After the Draft Policy had been presented to government in 2014 the cabinet decided that a debate on hate crime had the potential to cause further racial divisions in South Africa and refused to consider the Draft Policy.91

3.2 Recent developments which have contributed to further delays in the consideration of a hate crime law

The consideration of a hate-crime law was further delayed because of a recent public debate on hate speech92 and the government's publicised

intention to include hate-speech provisions93 in a future hate-crime law.94 In 2016 the government and the Hate Crimes Working Group reconsidered and amended the Draft Policy to include hate speech provisions.95 The amended Draft Policy which, since late 2016, is referred to as the Prevention and Combating of Hate Crimes and Hate Speech Bill96 has since late 2016 been subjected to a process of broad public consultation.97 The Hate Crimes Bill provides that any existing offence may be regarded as a hate crime98 when it is motivated by one of the recognised victim characteristics.99

93 Hate speech is presently prohibited by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter referred to as the Promotion of Equality Act). S 10(1) of the Promotion of Equality Act provides: "No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred". S 21 of the Promotion of Equality Act provides a civil remedy for hate speech in the form of damages.

94 See Peterson The Star 4. The government intends criminalising hate speech and subjecting those found guilty of hate speech to a harsher criminal sanction.

95 Jeffrey 2016 http://www.justice.gov.za/m_speeches/2016/20160330_HateCrime .

96 And hereinafter referred to as the Hate Crimes Bill.

97 Jeffrey 2016 http://www.justice.gov.za/m_speeches/2016/20160330_HateCrime .

98 Refer to s 3(1) of the Hate Crimes Bill. This is extremely wide. In the British Crime and Disorder Act of 1998, only a select number of crimes may be regarded as hate crimes when a bias motivation is present. Refer to fn 55 and 56 above.

99 Section 3(1) of the Hate Crimes Bill contains an extensive list of victim characteristics that includes, inter alia, race, ethnicity and sexual orientation. Given the long history of racial discrimination in South Africa there can be no doubt about the inclusion of race as a victim characteristic in the Hate Crimes Bill. The inclusion of albinism as a victim characteristic is laudable in the light of the fact that several South Africans living with albinism have fallen victim to crimes of violence. Similarly, the inclusion of a victim's HIV status as a victim characteristic is commendable in the light of the fact that several HIV-positive South Africans have been victimised because of their HIV status.

100 In other words, specific crimes that are motivated by bias or prejudice towards personal victim characteristics are not recognised in South African criminal law.

101 The crime of crimen iniuria was referred to earlier in a case in which a White employer referred to his Black domestic worker as a "kaffir" (refer to fn 83 above).

To date, therefore, a hate-crime law has not been passed in South Africa. While hate crimes are not recognised in South-African criminal law, criminal conduct that is motivated by bias or prejudice towards the personal characteristics of a victim could still be prosecuted in terms of the existing common-law or statutory crimes.100 If for example an accused has committed a racially-motivated murder, he/she could still be charged with the common-law crime of murder. In cases where a perpetrator has violated the dignity of his victim by using derogatory terms or racial epithets, courts could prosecute and convict such a perpetrator of the common-law crime of crimen iniuria.101 An accused who has committed the crime of rape that was

Crimen iniuria is defined as "… the unlawful, intentional and serious violation of the dignity or the privacy of another". See: Snyman Criminal Law 461.

102 Refer to s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

103 See Mollema and Van der Bijl 2014 Obiter 672. However, the consideration of a perpetrator's motive as an aggravating factor at sentencing is left to the discretion of the sentencing officer. See for example the case of S v Matela 1994 1 SACR 236 (A), where the racial motivation of the accused on a charge of murder was considered as an aggravating factor at sentencing.

104 It is submitted that some confusion presently exists in South Africa between the terms "hate speech" and "hate crime". While the hate-speech provisions in the Promotion of Equality Act could apply, inter alia, to the dissemination and publication of racist words and expressions, they would neither apply to a racially-motivated murder nor to a rape that was motivated by the sexual orientation of the victim. The hate-speech provisions of the Draft Hate Crimes Bill are therefore not considered in this submission.

105 While this section focuses on South Africa, as has been stated in the introduction (refer to fn 4 above), reference to the American context and to American literature is unavoidable, particularly on the subject of the constitutionality of hate-crime legislation. It is therefore necessary to use the American context as a point of departure and as a point of comparison.

106 Lawrence 1998-2000 Nat'l Black LJ 164. Lawrence regards equality as one of the most important ideals in the USA since racial inequality was the catalyst for the American Civil War and the Civil-Rights Movement.

107 Delgado 1982 Harv CR-CL L Rev 140.

motivated by the sexual orientation of the victim could be charged with the statutory crime of rape.102 The bias motivation of the perpetrators of these crimes may be considered as an aggravating factor at sentencing.103

Apart from an ostensible lack of political will to enact a hate-crime law in South Africa, the recent South-African debate on hate speech has also diverted some attention away from the issue of hate crimes.104 Nevertheless, it is the writer's submission that there are compelling constitutional reasons for the enactment of a hate-crime law in South Africa.

3.3 The enactment of a South African hate-crime law: a constitutional imperative

Within the American context105 hate crimes are said to violate the right to equality, which protects the most cherished ideal in American society.106 Equality is therefore the main prudential reason for the enactment of federal hate-crime legislation in the United States of America. Delgado107 believes that if the law does not specifically take cognisance of racist crimes and racist violence, minority groups become demoralised, since they receive a message that equality is not a fundamental principle. It is submitted that Delgado's argument could be extended to the perpetration of crimes, particularly violent crimes that are motivated by the sexual orientation, the ethnicity and other personal characteristics of the victims.

In the light of the constitutional commitment to equality in South Africa, the non-recognition of hate crimes is lamentable.108 South Africa has an oppressive history which was based on racial, ethnic and gender inequality. It could therefore be argued that the right to equality protects a sacrosanct ideal in South Africa. It could further be argued that the state's failure to specifically criminalise conduct motivated by race, ethnicity, sexual orientation and personal victim characteristics could demoralise certain victim groups and that these victim groups would be unable to achieve their full potential in society. This would negatively impact on their self-worth, their self-esteem and ultimately on their dignity.109 Since dignity is a founding value of the South African Constitution110 and a value that has informed the equality jurisprudence of the South-African Constitutional Court,111 the enactment of a hate-crime law in South Africa should be regarded as a constitutional imperative in terms of the value of dignity and the right to equality.

108 The right to equality is enshrined in s 9 of the Constitution of the Republic of South Africa, 1996. Equality is also recognised in s 1(a) of the Constitution as one of the values upon which the Republic of South Africa is founded.

109 Several authors have argued that hate-crime victims suffer more psychological, emotional and traumatic effects than the victims of crimes that are not motivated by personal prejudice or bias. See Levin 1992-1993 Stan L & Pol'y Rev 167-168 and Scotting 2000-2001 Akron L Rev 862. Moreover, according to Lawrence Punishing Hate 150, hate-crime victims are attacked for personal and often unchangeable reasons. They cannot change their race, ethnicity or sexual orientation in order to avoid future victimisation.

110 See s 1(a) of the Constitution of the Republic of South Africa, 1996.

111 See for example the cases of President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC), Harksen v Lane 1997 11 BCLR 1489 (CC); National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) and Jordan v S 2002 6 SA 642 (CC), wherein the right to equality was interpreted with reference to the value of dignity.

112 See Currie and De Waal Bill of Rights Handbook 281. Also refer to the cases of: Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC); Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) and Minister of Safety and Security v Hamilton 2004 2 SA 216 (SCA).

The enactment of a hate-crime law should also be regarded as a constitutional imperative in terms of section 12(1)(c) of the South African Constitution, which provides:

Everyone has the right to freedom and security of the person which includes the right ... to be free from all forms of violence, from either public or private sources.

Since the perpetration of violent crimes against the individual is a serious violation of personal security, it has been suggested that the state has a duty under section 12(1)(c) of the South African Constitution to protect individuals by restraining itself and by restraining private individuals from violating personal security.112 There are no compelling reasons why the duty

on the state to protect individuals from violence should not be extensively interpreted to include the protection of individuals from acts of racial, ethnic, and homophobic violence. This constitutional duty could be fulfilled to some extent by the enactment of a hate-crime law.

4 Conclusion and recommendations

Apart from South Africa's long historical record of racially-motivated crimes, in the post-apartheid period there have been reports of crimes motivated by the race, the ethnicity and the sexual orientation of victims. In this regard there are some similarities between South Africa and Britain, which also has an established historical record of crimes that were motivated by the race and the ethnicity of the victim. The efforts of the non-governmental sector in South Africa to raise awareness of hate crimes and its numerous calls to government to enact a hate-crime law are indeed laudable. Similarly, the non-governmental sector in Britain can also be commended for first raising public awareness of racist violence and racist crimes. It is lamentable that the South-African government has procrastinated with regard to the enactment of a hate-crime law, since compelling constitutional reasons were identified in this submission in terms of which the enactment of a hate-crime law in South Africa is a constitutional imperative. While no such constitutional obligation existed in Britain, successive British governments also ignored calls to introduce a hate-crime law. However, the British Labour Party eventually honoured its commitment to ensure the passing of such a law upon winning the national election in 1998. It must be conceded, however, that in the light of the fact that the Hate-Crimes Bill has been subjected to a process of public consultation the enactment of a hate-crime law in South Africa is quite likely.

The enactment of a hate-crime law in South Africa is therefore recommended in order that South Africa may fulfil its constitutional obligations.

It is recommended that a South African hate-crime law should criminalise conduct, particularly violent conduct that is motivated by the race, the ethnicity, the sexual orientation and other personal characteristics of the victim. In most of the post-apartheid accounts of hate crimes, the perpetrators have committed the crimes of murder, rape, robbery, assault, and damage to property.113 These are some of the violent crimes that should be subjected to enhanced penalties when they have been motivated by

113 Refer to para 3.1 above.

prejudice or bias towards personal victim characteristics.114 In this regard the British example is informative, since section 28 of the Crime and Disorder Act of 1998 allows for the most commonly reported hate crimes to be subjected to enhanced penalties.

114 While the crimes of murder, rape, assault and robbery are presently subject to the minimum-sentence provisions of the Criminal Law Amendment Act 105 of 1997, as amended, this statute does not contain any provision which would compel a sentencing officer to consider the bias motivation of a hate-crime perpetrator (for example, a bias motivation based on the race or the sexual orientation of the victim) as an aggravating factor at sentencing. The present Hate Crimes Bill allows for any offence to be regarded as a hate crime when a bias motivation is present. According to the Hate Crimes Bill, once convicted of a hate crime, if the provisions of the Criminal Law Amendment Act 105 of 1997, as amended are inapplicable and if the victim has suffered damage to or loss of property and money, physical or other injury or loss of income and support, then these factors can be considered as aggravating factors when sentencing the hate-crime perpetrator (refer to s 6 of the Hate Crimes Bill).

115 See Jeffrey 2016 http://www.justice.gov.za/m_speeches/2016/20160330 _HateCrime. The Hate Crimes Bill therefore recognises more victim characteristics than the British Crime and Disorder Act of 1998.

116 See for example, Gerstenfeld Hate Crimes 25-26, which expresses some doubts about the deterrent effects of hate-crime laws. Moreover, despite the existence of several hate crime laws in Britain, since a referendum in June 2016 in which most Britons voted in favour of Britain leaving the European Union there has been an increase in xenophobic and anti-Muslim hate crimes. See Dewan 2016 http://edition.cnn.com/2016/07/08/europe/brexit- britain-hate-crime.

117 Malik 1999 MLR 416.

While this submission has referred to hate crimes in South Africa that were motivated by race, ethnicity and sexual orientation, as has been mentioned above, the list of victim characteristics in the Hate Crimes Bill is extensive and includes all the grounds of discrimination that are to be found in section 9(3) of the Constitution of the Republic of South Africa, 1996 and several new grounds or victim characteristics such as albinism and HIV status.115

It is not the writer's contention that a hate-crime law will eradicate hate crimes in South Africa.116 However, the criminalisation of conduct motivated by personal prejudice and bigotry and the subjection of such conduct to enhanced penalties could be regarded as the ultimate means of denouncing abhorrent conduct.117 It is submitted that the imposition of enhanced or aggravated penalties on convicted hate crimes perpetrators is a reflection of a democratic society's denunciation of conduct motivated by bias or prejudice towards personal victim characteristics. Moreover, as has been explained earlier in this submission, if a racially-motivated crime has been committed, South-African criminal law presently allows for the perpetrator's racist bias motivation to be taken into consideration as an aggravating factor at sentencing. This is left, however, to the discretion of the sentencing

officer. According to Malik,118 it is an insufficient denunciation of racist conduct to simply regard a bias motivation, and particularly a racist bias motivation, as an aggravating factor that is left to the discretion of a sentencing officer. He therefore suggests that it is necessary to create specific racially-motivated crimes. It is submitted that Malik's argument could also be extended to crimes that are motivated by the sexual orientation, the ethnicity and other personal characteristics of victims.

118 Malik 1999 MLR 416.

119 See Hall Hate Crime 124. Hall regards hate-crime laws as the most "symbolic message" that a government has at its disposal to change prejudiced attitudes and behaviours.

Hate-crime laws are therefore regarded as highly symbolic laws.119 The enactment of a hate-crime law in South Africa would also resonate with the approach to hate crimes that has been adopted in Britain and in a number of other western democracies.

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Taylor date unknown http://www.ucian.ac.uk/research/environment/ projects/assets/Racial_Aggravation_final_paper.pdf

Taylor R date unknown The Role of Aggravated Offences in Combating Hate Crime 15 Years after the Crime and Disorder Act 1998 http://www.ucian.ac.uk/research/environment/projects/assets/Racial_Aggravation_final_paper.pdf accessed 1 April 2016

List of Abbreviations

Afr Stud Rev

African Studies Review

Akron L Rev

Akron Law Review

Am Behav Sci

American Behavioral Scientist

Br J Criminol

British Journal of Criminology

Crit Soc Pol

Critical Social Policy

Harv CR-CL L Rev

Harvard Civil Rights-Civil Liberties Law Review

Howard J Crime Justice

Howard Journal of Crime and Justice

J Br Stud

Journal of British Studies

J Contemp Crim Justice

Journal of Contemporary Criminal Justice

J Law & Soc

Journal of Law and Society

J Mod Hist

Journal of Modern History

LGBTI

Lesbian, gay, bisexual, transgender and intersex

Kronos

Kronos: South African Historical Journal

MLR

Modern Law Review

Nat'l Black LJ

National Black Law Journal

OJLS

Oxford Journal of Legal Studies

SA Crime Quarterly

South African Crime Quarterly

Stan L & Pol'y Rev

Stanford Law and Policy Review

Tex Int'l LJ

Texas International Law Journal

UTSLR

University of Technology, Sydney Law Review

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