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Hate-Motivated Violence

Foreign Jurisdictions
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135. Public Order Act 1986 (U.K.), 1986, c. 64, ss. 17-29. See R. Card, Public Order: The New Law (London: Butterworths, 1987), pp. 93-116 for an in-depth discussion of the offences set out in that Part [hereinafter referred to as Public Order: The New Law].

136. See, e.g., Public Order: The New Law, supra, footnote 41, pp. 95-96.

137. Football (Offences) Act 1991 (U.K.), 1991, c. 19, s.3. 45

138. U.K., The Government Reply to the Third Report From the Home Affairs committee Session 1985-86 HC 409, Racial Attacks and Harassment (London: HMSO, 1986), p. 2.

139. H. Mills, "Knock on the door brings growing sear of racial abuse and attack", The [London] Independent, Monday, November 9, 1992, HOME 3.

140. For a criticism of this bill, see L. Bridges, "The Racial Harassment Bill: A Missed Opportunity" (April-June 1993) 34 Race & Class, No. 4, p. 69.

141. The Government Reply to Racial Attacks and Harassment, supra, footnote 44. A spokesman for the Home Secretary in January, 1992, reiterated this view: we consider existing laws are adequate. The key is enforcement. If it becomes necessary to prove an element of racial motivation it would make enforcement that much more difficult. see "Baker rules out race attack law", The Guardian, Friday, January 17,1992, p. 6. This article is also summarized in "Police" (August, 1992) 31 The Howard Journal of Criminal Justice, No. 3, pp. 241-242.

142. Racial Attacks: Report of a Home Office Study (London: Home Office, 1981). This study is cited in Report of the Inter-Departmental Racial Attacks Group, The Response to Racial Attacks and Harassment: Guidance for the Statutory Agencies (London: Home Office, 1989), at para. 1, footnote 1 [hereinafter Report of the Racial Attacks Group].

143. Report of the Racial Attacks Group, supra, footnote 48, at para. 1.

144. U.K., House of Commons, Third Report from the Home Affairs committee, Session 1985-86, Racial Attacks and Harassment, Report, together with the Proceedings of the Committee, Minutes of Evidence and Appendices, HC 409 (London: HMSO, 1986), para. 1, at iv, para 32, at xiv-xv.

145. Report of the Racial Attacks Group, supra, footnote 48.

146. Among its comments: Individual agencies had to first start by recognizing the existence of racial harassment as a serious problem. While such awareness may be obvious in areas where there is a large minority ethnic population, where the numbers of ethnic minorities are small in other areas of Britain the problem can too easily remain invisible. As well, individual agencies (such as the police, housing, and educational authorities) had to accept responsibility for taking action in their own sphere of influence, should consult with local minority ethnic bodies, and should draw up an explicit policy for dealing with racial harassment. Agencies should make it clear to potential victims that they have effective procedures for responding to racial harassment and for assisting victims, and should also make it clear to potential perpetrators that racial harassment will not be tolerated. The report then focussed on specific issues designed to make the individual agencies respond better to the problem. It was recommended that the police build up as complete a picture as possible of the nature and extent of the problem locally, ensure that victims know how to report incidents, take steps to make it easier for victims to report incidents, and increase confidence in the police response to reported incidents. In areas where racial harassment is a particularly serious problem, a chief officer should consider establishing a special squad to investigate incidents and collect intelligence on possible suspects. As well, the police should ensure that prosecuting lawyers are specifically informed about the existence of a racial element in the commission of a crime. The report commended the policy of the Crown Prosecution Service in regarding the existence of a clear racial motivation in an offence as an aggravating feature pointing towards prosecution, assuming there is sufficient evidence to justify proceedings. It also stressed the importance of making the court appearance less stressful for the victim of a racial attack, and the importance of treating racial motivation to commit a crime as an aggravating factor at sentence.

147. The Second Report of the Inter-Departmental Racial Attacks Group, The Response to Racial Attacks: Sustaining the Momentum (London: Home Office, 1991).

148. Ibid, pp. 4-7; Annex 6A, p. 67.

149. See, e.g., W. E. Saulsbury and B. Bowling, The Multi- Agency Approach in Practice: The North Plaistow Racial Harassment Project (London: Home Office Research and Planning Unit, Paper 64, 1991), cited in, and the results of which are summarized in, B. Bowling and W. Saulsbury, "A Multi-agency Approach to Racial Harassment" (1992), 32 Research Bulletin/Home Office Research and Statistics Department 34; A. Sampson and C. Philips, Multiple Victimisation: Racial Attacks on an East London Estate (London: Police Research Group, Crime Prevention Unit Series, Paper 36, Home Office Police Department, 1992); P. Neyroud, The Multi-Agency Approach to Racial Harassment (London: Police Requirements Support Unit, Home Office Science and Technology Group, 1992); P. Neyroud, "Multi- agency Approaches to Racial Harassment: The Lessons of Implementing the Racial Attacks Group Report" (July, 1992) 18 New Community, No. 4, p. 567.

150. See, e.g., Discrimination Act 1991 (ACT), ss. 66-67.

151. See "A Bill for An Act to amend the Crimes Act 1914 to create an offence of racial incitement and to amend the Racial Discrimination Act 1975 to make racial vilification unlawful", 1990-91-92, The Parliament of the Commonwealth of Australia, House of Representatives, 1st reading, 16 December, 1992.

152. Human Rights and Equal Opportunity Commission, Report of the National Inquiry into Racist Violence in Australia, Racist Violence (Canberra: Australian Government Publishing Service, 1991), pp. 275-277 [hereinafter Racist Violence].

153. Racist Violence, ibid. This exhaustive report, over 500 pages long, examines, among other issues, the history of racist violence in Australia, racist violence against aboriginal persons, racist violence on the basis of ethnic identity, and racist violence against people opposed to racism. It makes 85 findings and recommendations in total to combat racial violence throughout all levels of Australian society.

154. Crimes Act 1914, No. 12 of 1914, as amended.

155. Racial Discrimination Act 1975, No. 52 of 1975, as amended.

156. Racist violence, supra, footnote 58, pp. 296, 302.

157. Ibid, pp. 298-302. Another recommendation dealt with the process by which incidents of racist violence could be prosecuted. As regards enabling prosecutions for the proposed crimes of racist violence to be commenced, the report stated that it would be appropriate, where cases are brought to the attention of the Race Discrimination Commissioner pursuant to the Racial Discrimination Act 1975, that the Commissioner be given the power to refer potential criminal cases to the Director of Public Prosecutions. Ibid., pp. 304-305.

158. The Law Reform Commission, Multiculturalism and the Law [Report No 57] (Sydney, Australia: The Law Reform Commission, 1992).

159. Ibid, p. 153.

160. Ibid, footnote 64, p. 153

161. Ibid footnote 64, pp. 155-156.

162. Ibid footnote 64, pp. 156-157

163. This draft legislation for the proposed offence is set out in Appendix A of the Report, Ibid., footnote 64, Draft Legislation, p. 283.

164. Telephone conversation with Commissioner Christopher Sidoti of the Australian Law Reforrn Commission, Tuesday, January 12, 1993.

165. The Law Reform Commission, supra, footnote 64, p. 158.

166. Ibid., p. 161

167. Race Relations Act 1971 (N.Z.), 1971, No 150, s. 25.

168. Letter sent to the author dated December 18, 1992, from Margaret Thompson, Chief Executive Officer Policy and Research, Department of Justice, New Zealand.

169. These sections are translated in The American Series of Foreign Penal Codes, 28, The Penal Code of the Federal Republic of Germany (London: Sweet & Maxwell, 1987). For a discussion of the evolution of these crimes in Germany, see E. Stein, "History Against Free Speech: The New German Law Against the 'Auschwitz' -- and Other -- Lies" (1986) 85 Mich. L. Rev., p. 277.

170. This summary is taken from a letter sent to the author from Der Bundesminister der Justiz, dated April 7, 1993.

171. For a summary of the criminal law in this area, see the "Circulaire du ministre de l'Interieure, Philippe Marchand, envoyee le 21 mars 1991 aux prefets, concernant la lutte contre le racisme, I'antisemitisme et les resurgences du nazisme" in Rapport de la Commission nationale consultative des droits de l'homme, La Lutte Contre Le Racisme et laXenophobie 1991 (Paris: La Documentation francaise, 1992), pp. 327-328. See also M. Veron, "Le renforcement du dispositif repressif contre la discrimination et le racisme. Presentation des lois des 12 et 13 juillet 1990" in (Octobre 1990) 2 Droit Penal, No. 10, 1.

172. R. Oakley, Racial Violence and Harassment in Europe, ref. MG-CR (91) 3 rev. 2, a consultant's report prepared for the Council of Europe ([Strasbourg]: Council of Europe, [1993]), pp. 24-25.

173. The New Penal Code for France contains several sections that aim at prohibiting certain hateful or discriminatory conduct. See, e.g., Articles 211-1--213-5 (genocide and other crimes against humanity), 225-1--225-4 (certain discriminatory conduct where the discrimination is based on a person's origin, sex, race, state of health, handicap, ethnicity, religion, etc.); 432-7 (punishment where the discriminatory act is committed by a public servant); 225-18 (attack on a corpse, violation of a cemetery where the attack is motivated by the deceased person's race, ethnicity, nationality or religion). See Loi NÝ 92-863 a 92-686 du 22 juillet 1992, JO 23 juill. 1992, p. 9864, 9875, 9887, 9893. For an analysis of the new Penal Code and the text of the Code, see Le Nouveau Code Penal (Lois du 22 juillet 1992), La Semaine Juridique (Paris: Editions Techniques 1992).

174. Article 225-18, ibid.

175. The Swedish Penal Code (Stockholm, Sweden: Ministry of Justice, National Council for Crime Prevention, 1990), ss. 1, 5, 6, pp. 13-14.

176. Ibid, ss. 3, 5, pp. 18-19.

177. Delbetaenkande av utredningen foer atgaerder mot etnisk diskriminering, Organiserad rasism: EDU:s delbetaenkande om atgaerder mot rasistiska organisationer ([Stockholm?]: SOU, 1991: 75), English summary, pp. 2728. For further discussion of the measures taken in Sweden to combat racism, see Racial Violence and Harassment in Europe, supra, footnote 78, pp. 38-39.

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