JVL Introduction We are repeatedly told that the Crown Prosecution Serice has “adopted” the IHRA definition. What does this mean in practice? A supporter sought clarification and here is the reply received

REPLY FROM THE CPS, 5 Sept 2018

Thank you for your email.

The UK Government adopted the International Holocaust Remembrance Alliance (IHRA) definition and examples in December 2016. As a consequence of this action, it was in effect adopted by all government departments including the Crown Prosecution Service (CPS).

The IHRA definition has been circulated to all CPS Area Hate Crime Coordinators (HCCs) for information. The CPS believes the definition is a useful tool to understand how anti-Semitism manifests itself in the 21st century. Adopting this working definition will support prosecutors to assess evidence and its relevance when considering charges.

This does not change the legal definition of racial or religious hostility in the Crime and Disorder Act 1998, nor does it change the shared NPCC and CPS definition of a racial or religious incident used for flagging purposes. The IHRA definition does not form part of prosecution guidance for these reasons.

IHRA describes its own definition as a ‘non-legally binding working definition’.

There is no specific offence or definition of ‘anti-Semitism’ in the law of England and Wales. Instead, offences involving anti-Semitic hostility are prosecuted within the framework of the legislation dealing with racially or religiously aggravated hate crime. (Case law has determined that Jews are members of a racial group and a religious group).

The CPS’s approach to hate crime, as with all offences, is based on the relevant statutory framework and associated prosecution guidance.

CPS prosecutors are also guided on the principles of prosecution as set out in the Code for Crown Prosecutors:

Prosecutors must also have regard to whether the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics. The presence of any such motivation or hostility will mean that it is more likely that prosecution is required.

The legal framework for hate crime is contained primarily in the Crime and Disorder Act (CDA) 1998 and the Criminal Justice Act (CJA) 2003. The relevant provisions within the CJA 2003 and CDA 1998 use the same terminology in setting out aggravation:

at the time of committing the offence or immediately before or after doing so, the offender demonstrated towards the victim hostility based on the victim’s disability or presumed disability; sexual orientation or presumed sexual orientation or being transgender or presumed to be transgender; membership (or presumed membership) of a racial or religious group, OR

the offence was motivated (wholly or partly) by hostility towards persons who have a disability; who are of a particular sexual orientation or who are transgender; who are members of a racial or religious group.

These are broad definitions capable of being applied in a wide variety of circumstances. As such, the current framework provides greater latitude for the consideration of all the facts and circumstances in cases which might successfully support arguments in relation to anti-Semitism.

The NPCC/CPS definition for the flagging of reported cases as hate crimes, using the appropriate flag is as follows:

“any criminal offence which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s race or perceived race; religion or perceived religion; sexual orientation or perceived sexual orientation; disability or perceived disability and any crime motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender.”

Once the flagging definition has been applied, the police and CPS are required to identify sufficient and appropriate evidence to provide a realistic prospect of conviction. A case may therefore be flagged as a hate crime on the basis of the victim’s (or any other person’s) perception, even though there is insufficient evidence to prove the hate crime element as part of a prosecution.

The CPS maintains up to date advice based on conversations with HCCs and the Community Security Trust (CST). The CST has been providing advice and security to the Jewish community since 1994 and has extensive experience as a third party reporting centre.

CPS advice to prosecutors is routinely updated and is informed by the experience of prosecuting anti-Semitic crimes as well as that of the CST in supporting the victims of anti-Semitic crime. The focus is to acknowledge the changing nature of language, behaviours and references which can be seen to cause alarm, distress and harassment to the communities affected.

I hope this information is of assistance to you

Yours sincerely,

Crown Prosecution Service

102 Petty France, London SW1H 9AJ