Consultation on amending Scottish hate crime legislation: analysis of responses

3. Rationale (Q1)

Part One: Consolidating and modernising hate crime legislation

3.1 The consultation paper explained that the Scottish Government agreed with Lord Bracadale’s recommendation that all hate crime laws in Scotland should be consolidated into a single piece of legislation in order to provide clarity, transparency and consistency. The Scottish Government also concurred with the recommendation that the statutory aggravation model should continue to be the core method of prosecuting hate crimes in Scotland, agreeing in particular that this approach was effective and supported clear recording and production of statistics. Question 1 in the consultation asked for views on this issue as follows:

Question 1: Do you think the statutory aggravation model should continue to be the core method of prosecuting hate crimes in Scotland? [Yes / No / Unsure]

Key points

• Across all respondent types, 22% (225 out of 1,003 respondents) agreed and 76% (767 out of 1,003 respondents) disagreed that the statutory aggravation model should continue to be the core method of prosecuting hate crimes. However, organisations (with the exception of faith groups) were more likely than individuals to agree – 73% (58 out of 80 respondents) compared to 18% (167 out of 923 respondents) respectively. 
• Respondents frequently used Question 1 to set out their broad views on hate crime legislation. Some saw hate crime laws as important in protecting vulnerable groups, in recognising the particular harm caused by hate crimes and in sending out a message about the unacceptability of prejudice-based conduct. However, individual respondents (along with a few organisations) were generally opposed to hate crime legislation – they disagreed with laws designed to protect particular groups and thought such laws presented a risk to freedom of speech and freedom of religious expression. 
• Those who answered ‘yes’ at Question 1 offered two main views. Some endorsed the arguments put forward by Lord Bracadale, and highlighted the effectiveness of the aggravation model, and the importance of flexibility and parity across groups. Others offered more qualified support and agreed that this approach should continue if hate crime legislation was to remain in place.
• Those who answered ‘no’ at Question 1 also offered two main views. For some, opposition to the aggravation model was part of a wider opposition to hate crime laws. However, those making more specific points argued that aggravations were not needed to allow sentences to reflect the circumstances of cases, or said they had concerns about the corroborative requirements for aggravations. In contrast, other respondents (including some public and third sector bodies) who were generally supportive of hate crime legislation said they favoured the use of standalone offences instead of (or as well as) aggravations.

The wider relevance of responses to Question 1 

3.2 Question 1 in the consultation asked for views on the continuation of the statutory aggravation model as the core method of prosecuting hate crimes in Scotland. However, respondents frequently offered their overall views on hate crime legislation in response to this question, commenting on its role and value, the way it operated, and its impact on society. Most often, respondents – particularly individuals – expressed concern about such legislation, particularly with regard to its perceived impact on freedom of expression.   

3.3 The same is also true of Questions 2 and 3 (see Chapter 4). The responses to these questions raised a range of issues which were central to people’s understanding of, and attitudes towards, hate crime legislation.

3.4 Thus, it should be noted that the views expressed in response to Questions 1 to 3 often provided the foundation for responses to other consultation questions, and that the points raised at Questions 1 to 3 were often repeated in response to multiple consultation questions. In some cases, respondents drew out the specific relevance of their views at other individual questions; in other cases, respondents simply repeated their overall views. Where possible, points covered in Chapter 3 (or Chapter 4) are not repeated in detail in subsequent chapters (and vice versa). However, some repetition is inevitable in order to fully understand respondents’ views on individual consultation questions. 

Views on continuation of the statutory aggravation model 

3.5 Table 3.1 shows that 22% of respondents agreed, and 76% disagreed that the statutory aggravation model should continue to be the core method of prosecuting hate crimes in Scotland. However, organisations were more likely than individuals to answer ‘yes’ to this question (73% compared to 18%). In contrast to other organisations, 12 out of 16 faith groups disagreed that the statutory aggravation model should continue to be the core method of prosecuting hate crimes in Scotland.

Table 3.1: Q1 – Do you think the statutory aggravation model should continue to be the core method of prosecuting hate crimes in Scotland?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	24	75%	7	22%	1	3%	32	100%
Public sector / partnerships	20	91%	2	9%	–	0%	22	100%
Faith groups	4	25%	12	75%	–	0%	16	100%
Other organisations	10	100%	–	0%	–	0%	10	100%
Total organisations	58	73%	21	26%	1	1%	80	100%
Total individuals	167	18%	746	81%	10	1%	923	100%
Total (organisations and individuals)	225	22%	767	76%	11	1%	1,003	100%

Percentages may not total 100 due to rounding.

3.6 Altogether, 864 respondents (75 organisations and 789 individuals) provided further comments at Question 1. The sections below present the views of those who agreed and disagreed with the continuation of the statutory aggravation model. Two further sections present a summary of comments on broad approaches and principles that might guide or underpin the way Scotland deals with hate crimes, and on other relevant issues. 

Support for continuation of the statutory aggravation model 

3.7 There were two different perspectives evident in the comments from those who agreed that the statutory aggravation model should continue to be the core method of prosecuting hate crimes in Scotland as described in this section.

3.8 Some respondents expressed support for the continuation of the statutory aggravation model alongside broad support for hate crime legislation and the consolidation and other reforms recommended by Lord Bracadale. Respondents offering this view included representatives of all organisational types, and some individuals. These respondents thought that hate crime laws were important in protecting vulnerable groups, in recognising the particular harm caused by hate crimes (for individuals and communities), and in sending a message to society at large as well as to potential victims and perpetrators about the unacceptability of prejudice-based conduct.    

3.9 With regard to statutory aggravations in particular, respondents in this group largely endorsed the arguments put forward by Lord Bracadale, and argued that this model:

• Is well established and works effectively; there was no reason not to continue with this approach
• Is simple and accessible, easy to explain, and is understood by both professionals and the public
• Offers flexibility in two respects – aggravations could be attached to any crime and new aggravations covering additional groups could be added in the future within the context of an already established framework  
• Ensures that hate crimes of all types can be prosecuted and recognised in sentencing, without the need for additional standalone offences to be created
• Provides consistency across all groups, and avoids the potential issue of a ‘hierarchy of victims’
• Supports consistency and continuity in operational approach and practice and in the recording of statistics related to particular groups which, in turn, is helpful in informing future policy development in this area
• Encourages reporting (because of the existence of a ‘main’ offence), and helps with investigation and prosecution (because of the different corroborative requirements for the main offence and aggravation)
• Makes sense, as most hate crimes are in fact linked to other offences; this link to a ‘main’ offence was also seen as helpful by some in avoiding the perceived risk to freedom of speech that hate crime laws presented (see paragraph 3.13 for further discussion of this issue).

3.10 Some in this group expressed a preference for aggravations rather than standalone offences (citing, for example, reasons related to parity, flexibility and the protection of freedom of speech); others thought there was a role for both legislative approaches. 

3.11 In contrast, other respondents – mainly individuals and some faith groups – indicated more qualified support for the continuation of the statutory aggravation model. Respondents in this group offered one or more of the following main views:

• They noted broad concerns about hate crime legislation, with some suggesting that any consolidation process should aim to pare back the laws in this area. Some said they would prefer to see hate crime laws repealed in their entirety but said that if such legislation were to be in place, it should be implemented via statutory aggravations rather than standalone offences. In particular, respondents thought a model based on aggravations linked to a main offence offered some degree of protection to freedom of speech as it meant people could not be prosecuted purely because of something they said. The concerns noted by this group reflected the concerns of those who indicated disagreement with the continuation of the statutory aggravation model – see paragraph 3.13 below.
• They said that current laws in this area were adequate, and they thought there was no need for additional aggravations (or standalone offences) to be created. 

Opposition to continuation of the statutory aggravation model 

3.12 There were two main standpoints apparent among those who were opposed to the continuation of the statutory aggravation model.

3.13 Some respondents – mainly individuals and faith organisations – expressed general opposition to hate crime legislation, or the principles underpinning it, with some calling for all hate crime legislation to be repealed (some, however, made a distinction between ‘intrinsic’ characteristics such as race, sex and disability, and other ‘debatable’ or ‘choice-based’ characteristics). Respondents in this group made one or more of the following inter-linked points:

• They said that hate crime laws were unnecessary because all relevant conduct could be prosecuted using existing offences.
• They thought that all criminal conduct and all victims of crime should be treated the same, and that hate crime laws based on particular groups undermined the principle of equality before the law.
• They objected to laws designed to protect particular groups (i.e. those with protected characteristics). They argued that such an approach (i) pitted sub-groups against each other and was discriminatory and divisive, and (ii) risked the creation of ever-increasing and ever-changing categories. 
• They argued that the law should not be used for ‘political purposes’ – that is, to signal support for particular groups in society – and should not be subject to change in response to lobbying from particular groups. 
• They were critical of the lack of clear definition of a ‘hate crime’ or of ‘hate’.
• They were concerned that hate crime legislation presented a risk to freedom of speech and freedom of religious expression, and that the proposed reforms would exacerbate this. Respondents highlighted a perceived lack of clarity regarding the distinction between ‘disagreement’ and ‘hostility’, and thought hate crime laws could lead to the unnecessary criminalisation of some behaviours – some referred to incidents involving the arrest and (unsuccessful) prosecution of street preachers to explain their concerns. 
• They thought that the prioritisation of some groups over others, the perceived subjectivity involved in defining offences, and the risk to freedom of speech undermined important principles of democracy, equality and legal certainty.  
• They said there was no evidence that hate crime law ‘worked’ in terms of reducing prejudice, preventing hate crimes, and changing attitudes and behaviours; some said that hate crime laws were in fact counter-productive in fuelling divisions in society and giving rise to friction between communities.
• They thought that a focus on hate crime represented a waste of time and resources in terms of police and judicial time – they did not see this as a priority compared to other criminal justice challenges. They also suggested the effort involved in prosecuting hate crime was disproportionate to the scale of the issue.

3.14 The comments made by this group of respondents often suggested that their response to the tick-box part of Question 1 indicated disagreement with hate crime in general rather than any specific opposition to the aggravation model. Further, the arguments put forward were widely repeated by individuals at all the questions included in the consultation. However, some did offer comments with regard to the aggravation model specifically, as follows:

• They thought that aggravations were unnecessary because existing sentencing guidelines allowed the full circumstances of individual cases to be reflected.
• They expressed concerns about the different evidential requirements for aggravations and ‘standard’ offences – respondents saw the absence of a corroboration requirement in establishing an aggravation, and the potential reliance on the perception of victims or third parties as significant factors contributing to the ‘subjectivity’ of hate crime laws.

3.15 However, there was an alternative viewpoint amongst those opposed to the aggravation model. This was put forward mainly by public and third sector organisations (including those working with particular equality groups) who favoured the use of standalone offences or a combination of standalone offences and aggravations for all protected characteristics. These respondents argued (i) that existing standalone offences served an important purpose and were well used, (ii) that aggravations did not provide a direct route to prosecution and did not cover situations where a main offence had not been committed, or the threshold or corroborative requirements of a main offence had not been reached, and / or (iii) that it was important to maintain a full range of legal options in this area. Some respondents argued specifically for (i) retaining the standalone offence relating to race (these arguments are covered in more detail in Chapter 14), and (ii) introducing new standalone offences covering other protected groups, and misogynistic harassment in particular (this is discussed in more detail in Chapter 6). 

3.16 Some in this group disputed that the core model for Scottish hate crime legislation was (or should be) based on aggravations. These respondents were concerned that the premise of the question might skew the responses received.

Approaches and underlying principles in dealing with hate crime

3.17 As well as commenting on the continuation of the ‘aggravation model’, respondents also offered more general comments on the approaches and underlying principles that might be employed in tackling hate crime and prejudice. Respondents who were broadly supportive of hate crime legislation suggested, for example, that the current approach might be strengthened through adoption of:

• A rights-based approach 
• A victim-centred approach
• An approach that aimed to redress discrimination based on structural inequalities and power imbalances in society 
• A whole system approach – including robust legislation and non-legislative activity – to tackle prejudice and hate crime aimed at different groups.

3.18 Respondents advocating a greater shift in direction argued for: 

• A ‘generic’ approach to formulating legislation that recognised that different groups can be targeted but did not specify and define particular groups
• A system based on equality before the law, with no reference to, or special treatment for, any particular groups
• An approach that gave greater priority to the protection of freedom of speech and freedom of religious expression 
• A US-style system based on freedom of speech and a generic ‘emergency test’ which allows the prosecution of speech that is judged, taking full account of the context, to ‘directly cause specific imminent serious harm’
• A non-legislative approach to tackling prejudice and building understanding between groups.

Other relevant comments made at Question 1

3.19 Respondents also made a number of general points related to the consolidation and modernisation of hate crime legislation. These included the following:

• Respondents argued for consistency in the concepts and terminology used within hate crime legislation and used in other laws (particularly the Equality Act 2010) and other official contexts.
• Respondents said the policy response to hate crime should be kept under scrutiny and should be informed by improved data recording and better evidence and research.

3.20 Respondents also raised a wide range of points relevant to other questions in the consultation – for example, the coverage of different groups within the legislation; thresholds and evidential requirements; the support and information needs of different groups; and the need for a public campaign to accompany any newly reformed legislation. Such points also arose in the context of other questions included in the consultation, and are covered elsewhere in the report.