Consultation on amending Scottish hate crime legislation: analysis of responses

15. Sentencing (Q32)

15.1 There are currently four requirements related to the sentencing of hate crimes aggravations, by which the court must: (i) take the aggravation into account in determining the appropriate sentence; (ii) state on conviction that the offence was aggravated in relation to the particular characteristic; (iii) record the conviction in a way that shows that the offence was so aggravated; and (iv) state, where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or, otherwise, the reasons for there being no such difference.

15.2 Lord Bracadale recommended the continuation of the first three requirements, but the discontinuation of the final requirement. Lord Bracadale argued that stating in open court the extent to which the statutory aggravation altered the length of sentence did not serve a clear purpose, was complicated in practice given the multiple factors that contribute towards making sentencing decisions, and had the potential to upset a victim if the difference attributed to the aggravation is less than they had hoped. 

15.3 The Scottish Government accepted Lord Bracadale’s recommendations on the first three requirements. However, the Scottish Government believed that openly stating the difference in the length of a sentence due to the presence of a statutory aggravation was important as it gives a clear message that this type of crime is being taken seriously, and can also be helpful in supporting victims of crimes, and therefore proposed the retention of this requirement. Question 32 asked for views on this issue as follows:

Question 32: Do you think that courts should continue to be required to state in open court the extent to which the statutory aggravation altered the length of sentence? [Yes / No / Unsure]

Key points

• Views were mixed about whether the extent to which a statutory aggravation altered the length of sentence should continue to be stated in open court – 52% of respondents said ‘yes’, 17% said ‘no’ and 31% said ‘unsure’ (representing 237, 76 and 142 out of a total of 455 respondents). The response pattern was broadly similar for both organisations and individuals, although there was a mix of views across different types of organisational respondents.
• Those who favoured continuation thought that this requirement helped send a clear message about the unacceptability of hate crimes, and also supported transparency and consistency of practice and recording. Respondents thought that this would, in turn, encourage reporting and deter offending. 
• Those who supported discontinuation endorsed Lord Bracadale’s view, and agreed that the requirement was unnecessary, complicated to deliver satisfactorily in practice because of the wide range of factors considered in sentencing, and could have a potentially negative impact on victims.

15.4 Table 15.1 shows that there were mixed views among respondents about whether courts should continue to state publicly the extent to which a statutory aggravation altered the length of sentence – 52% said ‘yes’, 17% said ‘no’ and 31% said ‘unsure’. This pattern of response was similar among both organisations and individuals. However, there was a mix of views among organisational respondents – third sector organisations were most likely to answer ‘yes’ to this question, whilst faith groups were most likely to answer ‘no’. (These findings should be treated with caution given the small number of respondents involved.)

Table 15.1: Q32 – Do you think that courts should continue to be required to state in open court the extent to which the statutory aggravation altered the length of sentence?

Percentages may not total 100 due to rounding.

15.5 Altogether, 171 respondents (48 organisations and 123 individuals) provided further comments at Question 32. The sections below present views for and against continuation of the current requirement, while a final section briefly summarises other comments relevant to sentencing. 

15.6 It should be noted that it was common for organisational respondents in particular to endorse the first three requirements relating to sentencing for aggravations, regardless of their views on the continuation of the requirement to state in open court the extent to which a statutory aggravation altered the length of a sentence.

Support for the continuation of the current requirement

15.7 There was a great deal of consistency in the views put forward by respondents of all types (organisations and individuals) who supported the requirement to state in open court the extent to which a statutory aggravation altered the length of a sentence. Generally speaking, respondents thought this requirement was helpful in: 

• Enhancing transparency in sentencing, and promoting understanding in relation to sentencing, and the role of aggravations in determining sentences
• Supporting scrutiny, accountability and consistency with regard to sentencing practice – there was a suggestion that further consideration and guidance with respect to the sentencing of aggravations was needed
• Sending a message to victims, perpetrator and society at large about the unacceptability of hate crime, and the seriousness with which it was treated. The potential deterrent effect was noted – some suggested this was fundamental to the value and purpose of hate crime legislation
• Increasing confidence in the justice system, and encouraging reporting of crimes
• Ensuring the availability of consistent data which would allow for effective monitoring of sentencing practices – respondents often also stressed the importance more generally of the collation and publication of high quality consistent data to allow for the monitoring of offender behaviour and the development of informed policy responses. 

15.8 Some respondents also suggested that the requirement was helpful in validating the experience of victims (and affected communities) and providing reassurance about the response to such conduct.

Opposition to the continuation of the current requirement

15.9 Comments explaining opposition to (or reservations about) the requirement to state the extent to which a statutory aggravation altered the length of a sentence were offered by just a few organisations (including third and public sector bodies, and law and justice bodies). These respondents largely endorsed Lord Bracadale position, and made the following points:

• They thought the requirement was unnecessary, and that its discontinuation would not detract from the overall aims of ensuring aggravations were taken into account in sentencing and providing transparency on this process.
• They noted the complexity involved in setting sentences because of the need to take account of multiple factors. One respondent indicated that such factors could include the harm caused by the offence, the culpability of the accused, mitigating factors (such as previous convictions, or remorse), early guilty pleas etc., and noted the difficulty in isolating the extent to which any single factor contributed to a final sentence. This respondent went on to describe sentencing as a ‘matter of judgement’ and expressed concern at the possible loss of such an approach. Additionally, one organisation echoed Lord Bracadale’s view that victims may lose confidence in the justice system if an aggravation results in only a limited uplift in an overall sentence affected by a complex range of factors.
• They supported the discretion to provide a statement on the extent to which a statutory aggravation altered the length of a sentence in appropriate cases – there was a suggestion that guidance might be provided on this.  

Other comments on sentencing with regard to aggravations

15.10 In addition to the above perspectives, individuals who said they were opposed to hate crime legislation in general often said that sentencing should be the same regardless of the characteristics of the victim. They thought that increasing sentencing in respect of aggravations sent a message to victims in non-aggravated cases that their experience was less important than that of a victim with protected characteristics. They thought that this could be counter-productive in fuelling resentment and encouraging perpetrators of hate crimes to hide their motivation. However, some in this group supported continuation of the requirement to state the impact of aggravation on a sentence as a way of highlighting the discriminatory nature of hate crime laws, and building the case against their use. 

15.11 Some third and public sector organisations thought greater priority should be given to addressing underlying behaviour and reducing reoffending in sentencing and that sentences for hate crimes might include ‘awareness training’ and other educational or rehabilitative programmes.