Conceptualizing 'hostility' for hate crime law: minding 'the minutiae' when interpreting section 28(1)(a) of the Crime and Disorder Act 1998

In 1998 the then Labour Government took the controversial step of criminalising racially aggravated offences under the Crime and Disorder Act. Since then, several governments have enacted a number of statutes which have specifically proscribed various types of hate crime. Key to the provisions has been that prosecutors must prove the offender is either (partly) "motivated" by, or "demonstrates", "hostility" based on the victim's race, religious beliefs, sexual orientation, transgender and/or disability. While many scholars have critically analysed the social value of creating such offences, few have examined the intricacies of the provisions. Of greatest significance is that the law remains unclear on what the word "hostility", central to the provisions, actually means. This article therefore examines how the relevant sections of the Crime and Disorder Act have been interpreted by the courts, noting that much confusion and resistance remains within the lower courts. The article argues that to avoid future confusion in the law, the word "hostility" must be interpreted to include, not only acts that are motivated by, or which are intended to express bias, prejudice and hatred, but also any offence which involves conduct where the offender is aware that such conduct is likely to be perceived by others as an act of prejudice or hatred. Conceptualizing hostility in such a broad manner is important to the creation of a society which rejects public displays of identity-based prejudice. The article concludes that a broad interpretation of the law is additionally justified based on the harmful effects that incidents have on victims and potentially the communities they come from.