UK Criminal Justice and Transgender People

2014-09-162017-04-05

On 3 December, 2012 section 65 of the Legal Aid, Sentencing and Punishment of Offender Act 2012, extends section 146 of the Criminal Justice Act 2003 that permits additional sentencing for transphobic hate crime and Schedule 21 that sets a minimum tariff of 30 years for a transphobic murder, came into effect. The act also modifies section 241 of the Armed Forces Act 2006.

Criminal Justice Act 2003 Section 146

The 3rd December, 2012 modifications to the Criminal Justice Act 2003 that affect transgendered people are marked in red.

Increase in sentences for aggravation related to disability, sexual orientation or transgender identity.

This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).

Those circumstances are —

that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on —
- the sexual orientation (or presumed sexual orientation) of the victim,
- a disability (or presumed disability) of the victim, or
- the victim being (or being presumed to be) transgender, or”
that the offence is motivated (wholly or partly) —
- by hostility towards persons who are of a particular sexual orientation,
- by hostility towards persons who have a disability or a particular disability, or
- by hostility towards persons who are transgender.

The court —

must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and
must state in open court that the offence was committed in such circumstances.

It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.

In this section “disability” means any physical or mental impairment.

In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.

Criminal Justice Act 2003 Schedule 21

The 3rd December, 2012 modifications to the Criminal Justice Act 2003 that affect transgendered people are marked in red.
Interpretation

In this Schedule—

“child” means a person under 18 years;
“mandatory life sentence” means a life sentence passed in circumstances where the sentence is fixed by law;
“minimum term”, in relation to a mandatory life sentence, means the part of the sentence to be specified in an order under section 269(2);
“whole life order” means an order under subsection (4) of section 269.

Section 28 of the Crime and Disorder Act 1998 (c. 37) (meaning of “racially or religiously aggravated”) applies for the purposes of this Schedule as it applies for the purposes of sections 29 to 32 of that Act.

For the purposes of this Schedule—

an offence is aggravated by sexual orientation if it is committed in circumstances mentioned in section 146(2)(a)(i) or (b)(i);
an offence is aggravated by disability if it is committed in circumstances mentioned in section 146(2)(a)(ii) or (b)(ii);
an offence is aggravated by transgender identity if it is committed in circumstances mentioned in section 146(2)(a)(iii) or (b)(iii).

If—

the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order.

Cases that would normally fall within sub-paragraph (1)(a) include—

the murder of two or more persons, where each murder involves any of the following—
a substantial degree of premeditation or planning,
the abduction of the victim, or
sexual or sadistic conduct,
the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
a murder done for the purpose of advancing a political, religious or ideological cause, or
a murder by an offender previously convicted of murder.

If—

the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
the offender was aged 18 or over when he committed the offence, the appropriate starting point, in determining the minimum term, is 30 years.

Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include—

the murder of a police officer or prison officer in the course of his duty,
a murder involving the use of a firearm or explosive,
a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
a murder intended to obstruct or interfere with the course of justice,
a murder involving sexual or sadistic conduct,
the murder of two or more persons,
a murder that is racially or religiously aggravated or aggravated by sexual orientation, disability or transgender identity, or
a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.

If the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4(1) or 5(1), the appropriate starting point, in determining the minimum term, is 15 years.

If the offender was aged under 18 when he committed the offence, the appropriate starting point, in determining the minimum term, is 12 years. Aggravating and mitigating factors

Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point.

Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.

Aggravating factors (additional to those mentioned in paragraph 4(2) and 5(2)) that may be relevant to the offence of murder include—

a significant degree of planning or premeditation,
the fact that the victim was particularly vulnerable because of age or disability,
mental or physical suffering inflicted on the victim before death,
the abuse of a position of trust,
the use of duress or threats against another person to facilitate the commission of the offence,
the fact that the victim was providing a public service or performing a public duty, and
concealment, destruction or dismemberment of the body.

Mitigating factors that may be relevant to the offence of murder include—

an intention to cause serious bodily harm rather than to kill,
lack of premeditation,
the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability,
the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation,
the fact that the offender acted to any extent in self-defence,
a belief by the offender that the murder was an act of mercy, and
the age of the offender.

Nothing in this Schedule restricts the application of—

section 143(2) (previous convictions),
section 143(3) (bail), or
section 144 (guilty plea).

Armed Forces Act 2006 Section 241

The 3rd December, 2012 modifications to the Armed Forces Act 2006 that affect transgendered people are marked in red.

Increase in sentence for aggravation related to disability, sexual orientation or transgender identity.

This section applies where a court or officer dealing with an offender for a service offence within subsection (2) is considering the seriousness of the offence.

A service offence is within this subsection if—

at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
- the sexual orientation (or presumed sexual orientation) of the victim; or
- a disability (or presumed disability) of the victim; or
- the victim being (or being presumed to be) transgender, or
the offence is motivated (wholly or partly)—
- by hostility towards persons who are of a particular sexual orientation; or
- by hostility towards persons who have a disability or a particular disability.
- by hostility towards persons who are transgender.

The court or officer—

must treat as an aggravating factor the fact that the offence was committed in any of the circumstances mentioned in paragraph (a) or (b) of subsection (2); and
must state in open court that the offence was committed in such circumstances.

It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether the offender’s hostility is also based to any extent on any other factor not mentioned in that paragraph.

In this section “disability” means any physical or mental impairment.

In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.