The UK Crown Prosecution Service
CPS
Policy for Prosecuting Cases with a
Transphobic / Homophobic Element
In November 2002 the Crown Prosecution Service issued a public statement outlining its policy for prosecuting cases with a homophobic/transphobic element.
In this document the Crown Prosecution Service wished to make it clear that it regarded such crimes as particularly serious because they undermine people’s right to feel safe and be safe in their sexual orientation, whether they are lesbian, gay, bi-sexual or heterosexual, and in their gender identity, whether they are female, male or transgendered. We believe such crimes are based on prejudice, discrimination and hate and that they have no place in an open and democratic society.
The Crown Prosecution Service wish to deter people from committing homophobic/transphobic incidents by issuing this clear statement that such behaviour is not acceptable and, where appropriate, will be prosecuted effectively through the criminal courts. We also want to help in providing an environment in which those affected by such incidents have the confidence to report what has occurred and support any prosecution that follows by giving their evidence in court.
There is currently no statutory definition of a homophobic or transphobic incident. We have therefore adopted the following definition
“Any
incident which is perceived to be homophobic or transphobic by the victim or by
any other person”.
In addition, we have defined the terms ‘transphobic’ to mean
“A fear of or a dislike directed towards trans people, or a fear or dislike directed towards their perceived lifestyle, culture or characteristics, whether or not any specific trans person has that lifestyle or characteristic. The dislike does not have to be so severe as hatred. It is enough that people do something or abstain from doing something because they do not like trans people”.
The Crown Prosecution Service do appreciate this, but felt at the time of writing the Policy Statement that there were some general issues which concerned both LGB and T, and that the Policy should therefore cover LGB and T. The document is a living document, and will from time to time require updating and, as we with your help, widen our knowledge of the issues which are of concern to you, will rightly consider whether at a future date there should be separate policies.
The role of the Crown
Prosecution Service
Our main role is to prosecute people charged with criminal offences. This means that we:
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provide advice to the police to assist with their investigation of crime;
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review cases to ensure that the right cases are prosecuted on the right charges, with the right evidence; and
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prosecute cases at court ourselves or through agents instructed by us.
Our prosecution decisions are guided by the Code for Crown Prosecutors. In particular, every case received by the Crown Prosecution Service is reviewed against two tests set out in the Code to determine whether a prosecution should be brought. The two tests are the evidential test and the public interest test.
The Evidential Test
CPS prosecutors must be satisfied that there is enough evidence to have a realistic prospect of conviction.
The Public Interest Test
If a case does not pass the evidential test, it cannot go ahead, no matter how important or serious. When cases do pass the evidential test, CPS lawyers must decide whether a prosecution is needed in the public interest. A prosecution will usually take place “unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour”.
Because we regard a homophobic or transphobic element in a case as an aggravating feature – and therefore extremely serious, the public interest in such cases will therefore almost always be in favour of prosecution.
The CPS will therefore prosecute cases that pass these two tests. It should however be noted that this does not mean that a conviction will necessarily follow, only that the CPS is justified in putting such cases before a court for the court to decide whether the defendant is guilty, having heard the evidence of witnesses and the arguments of the Prosecution and Defence. This is because the standard of evidence required to convict a person of an offence is higher than the evidential test that Crown Prosecutors apply when deciding whether there is sufficient evidence to put a case before the Court. To convict a person of an offence, the court must be satisfied so that they are sure of a defendant’s guilt.
Deciding the Charges
Charges should reflect
(a) the seriousness of what took place, taking into account
any element of persistence in the defendant’s behaviour;
the provable intent of the defendant;
the severity of any injuries suffered by the victim.
(b) give the court the power to impose a suitable sentence,
(c) enable the case to be presented in a clear and simple way.
What will we do if there is evidence of homophobia/transphobia ?
Where there is sufficient admissible evidence to put before a court in order to show the element of homophobia or transphobia, the Prosecution will provide the court with this evidence and represent it as an aggravating feature of the case.
Securing
the Confidence of Victims and Witnesses
The interests, concerns and views of victims are important to us. They form part of our review and the prosecution process. We are committed to ensuring the proper care and treatment of victims and witnesses.
The CPS recognises that, in the past, there have been concerns about the way in which the Criminal Justice System has dealt with offences relating to homophobia and transphobia. We also recognise that members of the LGBT communities might be reluctant to report incidents out of fear, mistrust or their previous experience of those who are involved in that system. Obtaining confidence takes time.
We recognise that one of the reasons why some victims and witnesses of homophobic and transphobic incidents do not come forward to report them or continue to support any prosecution that may follow, is the fear of publicly disclosing or being questioned about their sexual orientation or gender identity. Some victims may prefer to suffer in silence rather than to face the ordeal of getting involved in the Criminal Justice process. The CPS appreciates these concerns, and we will treat all victims and witnesses of these crimes with sensitivity and we will do all that we can to support them through the process.
The Crown Prosecution Service recognises that there are particular issues that affects trans people.
The Crown Prosecution Service recognise that there are issues that are of particular concern to trans people and have sought to provide guidance to our staff.
How should we refer to the victim or witness
In particular, we recognise that some offences are gender specific (eg indecent assault on a man, or indecent assault on a female). In such circumstances, an indecent assault on a trans-woman could lead to an indecency charge referring to the victim as a man.
Our guidance seeks to inform prosecutors that our general principle should be that the appropriate charge is the one which properly reflects the practical act complained of by the victim and that it is irrelevant for the purposes of charge selection, whether any relevant part of the victims anatomy is biological or artificial and that the persons acquired gender should be used to determine the appropriate charge. By example, any indecent assault – such as the fondling of a trans-woman’s breasts – should be regarded as indecent assault on a woman, contrary to Section 14, Sexual Offences Act 1956.
This guidance is clearly of general principle and assists in clarifying how trans people should be referred to whether they be victims, witnesses, or defendants.
Anonymity
There are clearly other issues which are of concern to victims and witnesses of transphobic incidents and these include issues of anonymity and provision of special measures in court.
In relation to the issue of anonymity, it has to be recognised that it is a fundamental principle in the Criminal Justice System in England and Wales that those accused of crimes are entitled to know the name of their accusers. Most criminal proceedings are held in public and therefore that information may inevitably find its way into the public domain. However, the court does have power to control its proceedings and this includes allowing witnesses not to give their names in open court. This sometimes happens in cases of blackmail; but occasions when this is allowed are rare.
Although we shall do all we can to help witnesses at court, it is unlikely that a court will allow an LGBT victim of or an LGBT witness to a crime, not to disclose their name in court. However, the current procedure is that unless it is required for evidential purposes, a witness’s address should not be disclosed in open court. In addition, victims of serious sexual offences are entitled as a matter of law to anonymity in the Press, even if their details have been given in court.
Special Measures to allow a victim or witness to give their best evidence
In certain circumstances Special Measures may be available in court and offer an environment in which certain groups of witnesses who require them are able to give the best evidence that they can. Although some Special Measures were introduced in August 2002, others await implementation. The Home Office has published a series of booklets about the Special Measures called “Achieving Best Evidence in Criminal Proceedings”. These are available from the Home Office Communication Directorate or on-line at www.homeoffice.gov.uk.
Where a victim or witness does have particular concerns it is important that these concerns are shared with the police officer in order that they can be passed on to the CPS prosecutors who can then better consider what measures might be available.
Minor
Offending by the Victim of or a Witness to a More Serious Crime
The Crown Prosecution Service also appreciate that members of the LGBT community who are victims of crime or witnesses to homophobic or transphobic instances may be reluctant to go to the Police, fearing they will be investigated for their own behaviour, for example for “cruising” or “cottaging”.
The Crown Prosecution Service cannot guarantee that people who commit such minor offences will not be prosecuted. However, when a person committing such an offence becomes the victim of a more serious crime or witnesses one, the more serious offence will be investigated and, where appropriate, prosecuted, even if that means not pursuing a prosecution for the minor offence.
Monitoring
Homophobic and Transphobic Cases
In order that we can continuously develop and improve our approach to dealing with homophobic and transphobic cases, it is important that we monitor these cases. However, it is important that we stress that this monitoring process will not contain personal details of victims and witnesses.
Conclusion
I hope you will accept that this policy is a significant first step forward in the tackling of homophobic and transphobic crime and that the Crown Prosecution Service is keen to play its part in reducing crimes with a homophobic and transphobic element by bringing offenders to justice. We do of course need the help of victims and witnesses if we are to do our job well.
The Crown Prosecution Service also want the LGBT communities to have confidence in us. We hope that the Policy and Guidance that we have issued is a start in allowing all members of society, but particularly members of the LGBT communities to have a better understanding of what the CPS does; why it undertakes its work in the way that it does; and also what some of the constraints are that we face.
If we are to build open, tolerant and inclusive society in which all its members feel safe and confident in the way in which the criminal law operates, it must be a priority for all of us to stop crimes bases on homophobia and transphobia and where we can, to arrest and to prosecute the perpetrators of such crimes firmly and effectively.
The CPS Policy of homophobic and transphobic crime can be found at www.cps.gov.uk. In addition, you will also find on that web site a guidance document which gives greater information on how some of those issues referred to in the Policy should be more fully considered.
The CPS Policy on prosecuting cases of homophobic and transphobic crimes is also available in a range of community languages and on audio cassette and is available from CPS Communications Branch, 50 Ludgate Hill, London EC4M 7EX.
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Crown Prosecution Service
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Northern Concord,
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Manchester, M60 1LN
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or E-mail JennyB@northernconcord.org.uk
1987 - 2017
Working for the transgender community for the past 29 years