Baroness Vere of Norbiton wrote to the Director of Public Prosecutions (DPP) on 13 December 2017. The DPP provided her response on 9 January 2018.
In her response, the then DPP confirmed that the flagging definition for hate crime was agreed between the CPS and the NPCC (ACPO as it was then) in 2007 and that it is wider than the definition set out in legislation to ensure all relevant cases are captured.
The CPS adopted the recommended definition in the Macpherson report published in 1999 as a result of the inquiry into the murder of Stephen Lawrence. The Macpherson report also recommended that ‘this definition should be universally adopted by the Police, local Government and other relevant agencies’.
The recommendations of the Macpherson report were welcomed by the Government at the time and the current Government remains in support of this position. The CPS has worked with police to implement the recommended definition across all strands of hate crime. The CPS takes tackling hate crime seriously and recognises the need to increase public confidence to report. The flagging definition is important in achieving this aim.
In order for a crime to be charged and prosecuted as a hate crime, the CPS uses the legal definitions contained in the Crime and Disorder Act 1998 (CDA 1998) and the Criminal Justice Act 2003 (CJA 2003). This means that not every incident that the victim or another person has perceived to be a hate crime will actually be a hate crime in law.
In her letter, the then DPP also confirmed that the CPS legal guidance recognises the potential impact of prosecutions on Article 10 of the European Convention on Human Rights (the right to freedom of expression). The CPS must balance the rights of an individual to freedom of speech against the duty of the state to act proportionately and to protect the rights of others.