Hate crime: racially or religiously aggravated offences and hostility at sentencing
Assaults, criminal damage, public order and harassment offences that are racially or religiously aggravated (Crime and Disorder Act 1998 ss.28-32) carry higher maximums, up to 14 years. For any other offence, hostility based on race, religion, disability, sexual orientation or transgender identity must be treated as aggravating (Sentencing Act 2020 s.66).
Two ways hostility is punished
- Specific aggravated offences (Crime and Disorder Act 1998 ss.29-32), currently for race and religion only, with higher maximums.
- Statutory aggravation (Sentencing Act 2020 s.66) for any offence, covering race, religion, disability, sexual orientation and transgender identity.
The two tests (s.28)
An offence is racially or religiously aggravated if either:
- Demonstrated hostility: at the time, or immediately before or after, the offender shows the victim hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
- Motivation: the offence is motivated, wholly or partly, by hostility towards members of such a group.
Other motives alongside the hostility do not matter. A racial group is defined by race, colour, nationality (including citizenship) or ethnic or national origins; a religious group by religious belief or lack of it. Membership includes association with members. A group may be defined by what it is not, so abuse such as "bloody foreigners" can qualify (R v Rogers [2007] UKHL 8).
The offences and maximums
- s.29 assaults: wounding or GBH (OAPA 1861 s.20), ABH (s.47) or strangulation (Serious Crime Act 2015 s.75A): 7 years. Common assault: 2 years (basic offence 6 months).
- s.30 criminal damage: 14 years (basic 10 years).
- s.31 public order: Public Order Act 1986 ss.4 and 4A: 2 years, triable either way (basic 6 months, summary only); s.5: a level 4 fine (basic level 3).
- s.32 harassment and stalking: Protection from Harassment Act 1997 ss.2 and 2A: 2 years; ss.4 and 4A: 14 years (basic 10 years).
All except the s.5 version are triable either way.
Sentencing
The court first fixes the sentence for the basic offence, then applies an uplift for high, medium or low aggravation, and should say in open court what the sentence would have been without it. If the uplift would take the sentence beyond magistrates' powers, they must commit to the Crown Court for sentence.
For other offences, s.66 requires the court to treat hostility as aggravating and say so in open court. Disability means any physical or mental impairment. Sex is not in s.66, though sex-based intentional harassment is a separate offence (Public Order Act 1986 s.4B, from 1 April 2026).
Changes not yet in force
The Crime and Policing Act 2026 s.145 will extend ss.29-32 to hostility related to disability, sexual orientation and transgender identity, and to sex for all of them except aggravated s.4A (already covered by s.4B). It comes into force on a date set by regulations; no commencement regulations made up to 3 November 2026 include it. It will not apply to offences committed before it comes into force.
In practice
The exact words used are often central. Early advice matters.
Authorities: Crime and Disorder Act 1998 ss.28-32; Sentencing Act 2020 s.66; Public Order Act 1986 ss.4, 4A, 4B, 5; Protection from Harassment Act 1997 ss.2, 2A, 4, 4A; Criminal Damage Act 1971 s.4; Criminal Justice Act 1988 s.39; Serious Crime Act 2015 s.75A; R v Rogers [2007] UKHL 8; Crime and Policing Act 2026 s.145 (not yet in force); Sentencing Council, public order and harassment guidelines (Step 3, aggravated offences)