Consultation on amending Scottish hate crime legislation: analysis of responses

16. Wider context – support for victims and restorative justice (Q33 and Q34)

16.1 The Scottish Government’s consultation paper acknowledged that hate crime existed within a wider context characterised by inequality and prejudice, and that modernisation of the law was only one of a range of actions needed to tackle hate crime and build a more inclusive and equal society. The consultation paper sought views on two aspects of the ‘wider context’ – support for victims and restorative justice – as follows:

Question 33: Do you agree that no legislative change is needed in relation to the support given to victims of hate crime offences? [Yes / No / Unsure]

Question 34: Do you agree that no legislative change is needed in relation to the provision of restorative justice and diversion from prosecution within hate crime legislation in Scotland? [Yes / No / Unsure]

Key points

• There were mixed views about whether legislative change was needed in relation to support for victims – 43% said ‘yes’, 19% said ‘no’ and 38% said ‘unsure’ (representing 187, 83 and 167 out of a total of 437 respondents). There were also mixed views about whether legislative change was needed in relation to restorative justice and diversion from prosecution – 38% said ‘yes’, 15% said ‘no’ and 48% said ‘unsure’ (representing 163, 63 and 205 out of a total of 431 respondents). The response patterns were similar for organisations and individuals.
• There was broad consensus about the importance of support for victims. However, while some thought victims of hate crimes had special needs, others stressed the importance of support for all victims. Although many saw the need for improvement in this area, there was also a common view that this did not require legislation. 
• For the most part, respondents thought there was a role for restorative justice and diversion from prosecution in responding to hate crime (and crime more generally). They thought such disposals could help address the causes of hate crime and could be positive and empowering for victims and communities. However, respondents stressed that the interests of victims should always be paramount, and that activity in the area should be taken forward cautiously. 
• Respondents often stressed that any activity to address hate crime needed to be considered alongside other society-wide or ‘whole system’ approaches to addressing prejudice and related behaviour. Some saw the criminal justice system as having a key role in this wider approach to tackling hate crime, while others, individuals in particular, thought that this was an issue that should be dealt with largely outwith the justice system.

16.2 Questions 33 and 34 are covered separately in the sections below, while a final section looks at other issues related to the ‘wider context’ raised in response to both questions. However, the following common points should be noted:

• As with other consultation questions, some respondents, individuals in particular, used their comments to restate their opposition to hate crime laws or laws based on protected characteristics. 
• Some respondents said they did not know enough about victim support work, restorative justice or diversion from prosecution, or current arrangements in these areas to comment. Some organisational respondents specifically deferred to the expertise of others in this area.

16.3 No further analysis is presented on the views of either of these groups.

16.4 In addition, there was a great deal of commonality in the points raised in response to these questions, regardless of how the initial tick-box question was answered. Thus, for each question, the analysis presented focuses on main themes, rather than arguments for and against legislative change.

Support for victims of hate crimes (Q33)

16.5 Lord Bracadale’s report highlighted the importance of tackling under-reporting of hate crimes, and of providing practical and emotional support to victims of such crimes. The report noted initiatives already underway – work being taken forward by the Tackling Prejudice and Building Connected Communities Action Group and the provision of extra government funding for Victim Support Scotland – to address this issue. The consultation paper highlighted additional actions commenced since the publication of Lord Bracadale’s review – for example, the establishment of a Victims Task Force and work being undertaken to develop a victim-centred approach by Victim Support Scotland. Question 33 asked respondents if they agreed that no legislative change was needed in relation to the support given to victims of hate crimes, as recommended by Lord Bracadale’s review.       

16.6 Table 16.1 shows that there were mixed views among respondents about whether legislative change is needed in relation to the support given to victims – 43% said ‘yes’, 19% said ‘no’ and 38% said ‘unsure’. The high proportion of respondents answering ‘unsure’ (over a third of all respondents) should be noted. The pattern of responses was similar among organisations and individuals.

Table 16.1: Q33 – Do you agree that no legislative change is needed in relation to the support given to victims of hate crime offences?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	8	32%	6	24%	11	44%	25	100%
Public sector / partnerships	11	55%	4	20%	5	25%	20	100%
Faith groups	4	67%	–	0%	2	33%	6	100%
Other organisations	4	67%	1	17%	1	17%	6	100%
Total organisations	27	47%	11	19%	19	33%	57	100%
Total individuals	160	42%	72	19%	148	39%	380	100%
Total (organisations and individuals)	187	43%	83	19%	167	38%	437	100%

Percentages may not total 100 due to rounding.

16.7 Altogether, 159 respondents (39 organisations and 120 individuals) provided comments at Question 33. The sections below present views relating to two main themes: the support needs of victims, and the need for legislative change. 

Views on the support needs of victims

16.8 There was widespread agreement across all respondent types about the importance of providing support to victims of crimes. However, there were contrasting views on whether the needs of victims of hate crime were any different to the needs of victims of other types of crimes. Some respondents (most organisations and some individuals) thought the circumstances surrounding hate crimes and the impact such crimes could have on victims meant that the support needs of this group were particularly acute and specific in nature. Other respondents, mainly individuals, stressed that support was important for all victims of crime, not just victims of hate crimes – some argued that there was no justification for providing different services for different groups.

16.9 Those who identified victims of hate crimes as having particular needs thought that support for this group was critical in order to encourage reporting, to ensure an appropriate response to the experience of individual victims, and to ensure victims received relevant advice and assistance at all points of the judicial process. Respondents in this group often commended initiatives already underway in this area. Nevertheless, there was a common view, expressed by organisations in particular, that current support fell short of what was required, and further work was needed. The type of changes envisaged by respondents included:

• Increased training and guidance to improve the practice of the police and those working in the criminal justice system with regard to victims of hate crimes – some noted the need for a general change of approach or a change of ‘culture’, while others talked of the importance of ensuring that the police and the courts were trained to deal appropriately with different groups (e.g. those with learning disabilities) 
• Improved support for victims and witnesses during court procedures – respondents noted options such as treating all hate crime victims as vulnerable witnesses, providing anonymity for witnesses, improving the appropriate adult service, and addressing issues of witness capacity to ensure those with learning disabilities had full access to justice 
• Greater use of victim impact statements in court procedures and sentencing
• Improved access to victim-centred support tailored to the specific needs of individuals, and provided by staff with appropriate expertise – including support for those with learning disabilities and mental health issues, support for victims of race-related hate crimes, therapeutic support for those traumatised by hate crime victimisation, and practical initiatives such as helplines and advocacy services. Some respondents called for the role of third party reporting centres to be reviewed and / or for further development (and increased funding) of this service 
• The provision of additional support (increased funding, training input etc.) for organisations providing support to victims – some individuals suggested that the proposed changes to Scotland’s hate crime laws may increase the demand on victim support services  
• The development of appropriate information which took account of the needs of different groups.

16.10 In addition, respondents offering such views also highlighted the need for (i) publicity campaigns and awareness-raising activities to ensure that individuals knew what constituted a hate crime, how to report a hate crime and how to access support, and (ii) a society-wide approach to tackling inequality, prejudice and hate crime. 

16.11 Among individuals there were two further views:

• That good support for all victims was already in place, and nothing specific was required for victims of hate crimes – there was also a view that under-reporting was not a major issue that needed to be addressed
• That support should only be provided for ‘genuine’ victims, and not those who had experienced ‘mean words’ or ‘hurt feelings’.

Views on the need for legislative action

16.12 Respondents did not often comment directly on whether legislation was or was not required to bring about the changes they thought were needed. However, those that did made the following points:

• Some respondents stated in their comments that the sort of changes and improvements they sought did not require legislation.   
• In most cases, those who said that legislation was required did not explain the type of legislation they envisaged. However, those that did offer specific comments on this suggested that the right to appropriate support might be enshrined in law, and that the government should be made legally accountable for providing support to victims of hate crimes via an annual report to Parliament. The latter point was put forward by a number of third sector organisations.   

16.13 Some respondents said they (i) were unsure about the need for legislation to bring about the changes they thought were needed, (ii) were concerned that a legislative approach would result in a prescriptive and non-individualised response to victims, or (iii) thought that further work should be undertaken in order to determine the needs of victims. 

Restorative justice and diversion from prosecution (Q34)

16.14 Table 16.2 shows that there were mixed views overall about whether legislative change was needed in relation to the provision of restorative justice and diversion from prosecution within hate crime legislation – 38% of respondents said ‘yes’, 15% said ‘no’ and 48% said ‘unsure’. It is notable that almost a half of all respondents (48%) answered ‘unsure’ to this question. The pattern of response was mixed among individuals and organisations, although organisations were more likely than individuals to answer ‘yes’ (46% compared to 37%), and less likely to answer ‘no’ (5% compared to 16%).

Table 16.2: Q34 – Do you agree that no legislative change is needed in relation to the provision of restorative justice and diversion from prosecution within hate crime legislation in Scotland?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	7	26%	2	7%	18	67%	27	100%
Public sector / partnerships	12	57%	1	5%	8	38%	21	100%
Faith groups	4	67%	–	0%	2	33%	6	100%
Other organisations	4	80%	–	0%	1	20%	5	100%
Total organisations	27	46%	3	5%	29	49%	59	100%
Total individuals	136	37%	60	16%	176	47%	372	100%
Total (organisations and individuals)	163	38%	63	15%	205	48%	431	100%

Percentages may not total 100 due to rounding.

16.15 Altogether, 116 respondents (41 organisations and 75 individuals) provided further comments at Question 34. The sections below present views on the three main themes identified in respondents’ comments – the role and value of restorative justice and diversion, current provision and use, and the need for legislative change. It should be noted that respondents did not always distinguish between restorative justice and diversion from prosecution in their comments.

Views on the role of restorative justice and diversion

16.16 For the most part, respondents thought there was a potential role for restorative justice and diversion from prosecution in responding to hate crime (and crime more generally). Respondents thought such options:

• Could play a role in addressing the causes of hate crime, in rehabilitating offenders, and in changing attitudes and behaviours, and offered a longer term solution to reducing prejudice and hate crime across society
• Could have a positive and empowering effect on individual victims and on affected communities
• Provided a more effective alternative to other types of disposal
• Were particular appropriate for young people and low-level offenders, and were helpful in keeping such individuals out of the criminal justice system.

16.17 However, respondents often also highlighted the vulnerability of victims of hate crime and emphasised the need for any use of diversion and restorative justice to be managed carefully. They stressed that the interests of victims should always be paramount; that such disposals should only be used in appropriate cases (e.g., cases involving low-level offending, cases where the offender expressed remorse); that involvement in such processes should always be on an entirely voluntary basis; and that cases should be closely monitored and that the option to (retrospectively) impose another type of sentence should be available.

16.18 Less often, respondents (mainly individuals) said that they were opposed to the use of restorative justice in particular because they thought such approaches were not effective, not appropriate, or represented ‘indoctrination’. 

16.19 In discussing the role of restorative justice and diversion a range of organisational respondents referred to research and evidence to support their view. Some drew attention to research which they said demonstrated the benefits of such approaches, while others argued that research showed a more mixed picture and highlighted the need for caution in taking forward work in this area. Some respondents argued that more evidence was needed in order to inform the development of policy in this area, and that it would be important to take account of the views of victims in any further considerations.  

Views on current provision and use of restorative justice and diversion

16.20 There was a mix of views on current provision and use of restorative justice and diversion from prosecution. Some respondents, individuals in particular, noted that such options were already in place, and that current provision was adequate, and / or appropriate for all victims. Other respondents argued that current provision and use was patchy across the country, and that more funding was needed in order to ensure consistent access and quality of service. It was also suggested that education and awareness raising was needed to change perceptions and increase use of such disposals. 

Views on the need for legislative change

16.21 As with Question 33, respondents did not often comment specifically on why legislation might or might be needed in this area. However, those who argued in favour of legislative change suggested the following:

• A statutory duty to provide restorative justice would ensure consistent access across the country, and ensure the necessary funding for services.
• The consideration of restorative justice could be made mandatory in the sentencing of hate crime cases.
• Legislation could be used to regulate how diversion and restorative justice were used in hate crime cases.
• A legal duty for the government to report to Parliament on the use of restorative justice and diversion and prosecution might be introduced. 

16.22 Those who thought that legislation was not required highlighted existing services and ongoing activities in this area and argued that further development work could be taken forward via non-legislative routes – for example, via the Victims Task Force, via Scottish Government directives, via sentencing guidelines, or via local activity pursued at community justice partnership level. There was also a view that restorative justice approaches in particular were still at an early stage in their development and legislation would be therefore be inappropriate. 

Other comments regarding the wider context

16.23 Respondents made a range of other comments relevant to the ‘wider context’ of responding to hate crime. With regard to victim support work, restorative justice and diversion from prosecution, respondents often stressed that any activity in these areas should operate as part of a wider response to hate crime, and should be considered alongside other society-wide or ‘whole system’ approaches to addressing prejudice and related behaviour. Respondents made the following broad points, arguing that:

• Work in this area needed to be underpinned by appropriate principles as represented by, for example, a victim-centred, or rights-based approach (including human rights-based and children’s rights-based approaches). 
• A wide range of different activities were needed to tackle prejudice, build understanding between groups and educate people about hate crime. This might include, for example, school- and community-based initiatives aimed at children and young people to tackle bullying and other behaviours, broader public education and awareness raising, workplace based initiatives, community engagement work etc. Some saw this as reflecting the early intervention and prevention approach advocated with regard to dealing with other social policy issues. Some argued for the importance of focusing on specific groups rather than adopting a one-size fits all approach. The Scottish Government / COSLA Equally Safe strategy for dealing with violence against women and girls was highlighted by some as a positive example of activity in this area. 
• It was important to address underlying structural issue such as inequality, and the power imbalances between different section in society which contributed to prejudice and could lead to hate crimes. 
• There was a need to work with different groups in taking work forward in this area – this was seen as valuable in itself, but also as helpful in terms of building confidence in the system within different communities.

16.24 While some respondents saw an important role for the law and the criminal justice system in this wider approach to tackling hate crime, others, individuals in particular, thought that this was an issue that should be dealt with largely outwith the justice system.