Consultation on amending Scottish hate crime legislation: analysis of responses

4. Language of legal thresholds (Q2 and Q3)

4.1 There are currently two legal thresholds for proving statutory aggravations: (i) the offender, at the time of committing the offence, or immediately before or after doing so, evinces malice and ill-will towards the victim based on a protected characteristic; or (ii) the offence is motivated (wholly or partly) by malice and ill-will towards members of a group defined by reference to a protected characteristic. Lord Bracadale’s review concluded that these thresholds should remain unchanged but recommended that the language used should be updated to make the thresholds more easily understood by a layperson. The review proposed replacing the phrase ‘evincing malice and ill will’ with ‘demonstrating hostility’ and the consultation paper asked for views on the proposed rewording (Question 2), and whether this revised wording might affect the application of the thresholds (Question 3).

Question 2: Do you think that the language of the thresholds for the statutory aggravations would be easier to understand if it was changed from ‘evincing malice and ill will’ to ‘demonstrating hostility’? [Yes / No / Unsure]

Question 3: Do you think changing the language of the thresholds for the statutory aggravations from ‘evincing malice and ill will’ to ‘demonstrating hostility’ would change how the thresholds are applied? [Yes / No / Unsure]

Key points

• Respondents were divided on whether the language of the thresholds for statutory aggravations would be easier to understand if it were changed from ‘evincing malice and ill will’ to ‘demonstrating hostility’: 35% agreed, 40% disagreed, and 25% were unsure (representing 268, 302 and 187 respectively out of a total of 757 respondents). Views were also mixed on whether the proposed change would affect the application of the thresholds: 43% agreed, 24% disagreed, and 33% were unsure (representing 308, 171 and 238 respectively out of a total of 717 respondents). Note, however, that organisations generally agreed that changes to the language of the thresholds would make hate crime legislation easier to understand – 72% (59 out of 82 respondents) said ‘yes’ in answer to Question 2.
• Respondents who said ‘yes’ generally thought it was important that the language of the thresholds was clear, consistent and accessible to the general public to enhance understanding of and confidence in hate crime laws. They also agreed that the proposed wording would help in achieving this. Some did, however, argue for further simplification and the need for accompanying guidance and information.
• Those who said ‘no’ were mainly concerned that the wording put forward was ‘too vague’, ‘too subjective’ and ‘too open to interpretation’, and that the intended meaning of the threshold was therefore less clear than was currently the case. Less often, respondents said that a change of wording was not needed because the current wording was well established and understood, and that any change risked causing confusion among the communities the legislation was intended to protect.
• There were three main views on the likely impact of the proposed change in wording – that this (i) could lead to a ‘lowering’ of the legal thresholds and the capturing of an unacceptably broad spectrum of conduct within its definition, (ii) could have a positive impact in clarifying the full range of actions included within the remit of hate crime, and in improving understanding of hate crime, or (iii) would maintain the current meaning of the thresholds, and so would not have any significant impact on their application. 

4.2 The following sections present views on the proposed change of wording, and its likely impact on the application of the thresholds. Other relevant comments on the wording and application of the thresholds are discussed briefly at the end of this chapter.  

Changing the language of the thresholds (Q2)

4.3 Table 4.1 shows that respondents were divided on whether the language of the thresholds for the statutory aggravations would be easier to understand if it were changed from ‘evincing malice and ill will’ to ‘demonstrating hostility’ – 35% of respondents agreed, and 40% disagreed, with 25% unsure. However, organisations were more likely than individuals to answer ‘yes’ (72% compared to 31%), while individuals were more likely than organisations to answer ‘no’ (43% compared to 16%). Among organisations, 6 of the 12 faith groups who responded to this question disagreed that the language of the thresholds would be easier to understand if it was changed as proposed in the question.

Table 4.1: Q2 – Do you think that the language of the thresholds for the statutory aggravations would be easier to understand if it was changed from ‘evincing malice and ill will’ to ‘demonstrating hostility’? 

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	26	70%	6	16%	5	14%	37	100%
Public sector / partnerships	21	95%	–	0%	1	5%	22	100%
Faith groups	3	25%	6	50%	3	25%	12	100%
Other organisations	9	82%	1	9%	1	9%	11	100%
Total organisations	59	72%	13	16%	10	12%	82	100%
Total individuals	209	31%	289	43%	177	26%	675	100%
Total (organisations and individuals)	268	35%	302	40%	187	25%	757	100%

Percentages may not total 100 due to rounding.

4.4 Altogether, 496 respondents (74 organisations and 422 individuals) provided further comments at Question 2. The following sections look at views on whether the proposed change of language would make the legal thresholds easier to understand, and presents specific comments and suggestions related to the proposed wording.  

Views of those who agreed that the language of the thresholds would be easier to understand if it was changed to ‘demonstrating hostility’

4.5 Respondents who said ‘yes’ at Question 2 generally thought it was important that the language of the thresholds was clear, consistent and accessible to the general public in order to enhance understanding of and confidence in hate crime laws, and to encourage reporting of potential hate crimes. For the most part, respondents in this group agreed that the proposed wording would help in achieving this. 

4.6 However, some respondents (particularly public and third sector organisations) offered the following qualifications to their overall response: (i) they thought the proposed language might still present challenges for some groups with particular needs (e.g. young people, people with learning disabilities or with English as a second language) and thought further work might be required to ensure the language used was easily understood by all relevant groups, (ii) they highlighted the need for clear definitions (particularly with regard to the word ‘hostility’) and clear and consistent supporting guidance (for the public and professionals) to explain the thresholds, and (iii) they called for a public information campaign to raise awareness and understanding of hate crime laws. In addition, some respondents, including law and justice bodies and third sector organisations, highlighted the importance of clarity about the intended impact of the revised wording, and the importance of avoiding unintended consequences as a result of a change in wording.  

4.7 Alongside those who offered broad, if qualified, support for the proposed change, there was another group of respondents (mainly individuals and faith groups) who answered ‘yes’ but offered a distinct reason for their response. This group said that while the proposed phrasing used simpler words that were easy to understand, they also had different meanings to those currently used and might have (or were likely to have) the effect of changing and, in particular, lowering the legal thresholds for hate crimes. The views of this group are discussed further in relation to Question 3. 

Views of those who disagreed that the language of the thresholds would be easier to understand if it was changed to ‘demonstrating hostility’

4.8 The most common view amongst those who said ‘no’ at Question 2 was that the wording put forward was ‘too vague’, ‘too subjective’ and ‘too open to interpretation’, and the intended meaning of the threshold was therefore less clear than was currently the case. Respondents argued that this lack of precision would lead to legal uncertainty, and / or would lower the legal threshold (intentionally or otherwise) and present a risk to freedom of speech. In particular, some thought the current wording better encapsulated the concept of ‘intent’ and the ‘intention of doing harm’ than the proposed wording. This view was put forward by faith groups and some types of third sector organisations as well as individuals, and is discussed further in relation to Question 3.

4.9 Less often, respondents argued that the current phrasing was well established and well understood, particularly by those with a professional involvement in the criminal justice system, and that it had a particular legal meaning which it was important to maintain. It was argued that clarity on the meaning of the thresholds could be provided by accompanying guidance and that attempts to update the language of the thresholds were unnecessary and / or misguided. Some third sector organisations offered a somewhat similar view, arguing that a change in wording might cause confusion among the public and affected communities. These respondents thought that understanding of the current wording could be improved further via education and awareness raising.

4.10 Other views put forward by those who answered ‘no’ included the following:

• Some respondents agreed that the proposed wording was simpler and more accessible, but also thought that the meaning of the threshold had been changed – this reflected the views of some respondents who answered ‘yes’ (see paragraph 4.7).
• Some said that simpler wording did not make the concept being described any easier to understand.
• Some respondents agreed with the objective of updating the language of the law but thought this should only go ahead if it was possible to do so without changing the meaning of the threshold.

Specific comments and suggestions on the proposed wording

4.11 A range of respondents (including those who answered ‘yes’, ‘no’ and ‘unsure’) offered comments on specific aspects of the proposed wording, as discussed below.

Comments on ‘malice and ill will’ versus ‘hostility’ 

4.12 There was a frequently expressed view that the terms ‘malice and ill will’ and ‘hostility’ were not directly equivalent. Most often respondents suggested that (i) ‘malice’ was a stronger term than ‘hostility’ and also conveyed the idea of ‘intent to cause harm’, and therefore set the legal threshold at an appropriate level of conduct; that (ii) ‘malice’ referred to a feeling towards an individual, while ‘hostility’ could also refer to a feeling towards a concept or idea, thus potentially criminalising differences of opinions related to beliefs, lifestyles or institutions; and that (iii) an individual could be hostile towards an idea or belief system without also feeling any ‘malice or ill will’ towards an individual supporting or promoting that idea. However, there was an alternative, less common view, that the word ‘hostility’ was less subjective than ‘malice and ill will’ and would therefore make the threshold easier to evidence.

4.13 Some accepted that the terms did not have the same ‘dictionary definitions’ but thought this could be addressed via a clear statement on policy intent, and clear guidance explaining the intended meaning and interpretation of the thresholds.

4.14 A range of specific suggestions for alternative wording were also put forward. In the main, these suggestions aimed to ensure the current understanding and application of the threshold was maintained, and included: ‘demonstrating a wish to cause harm’, ‘demonstrating malice and ill will and / or hostility’, ‘demonstrating hate and / or hostility’, demonstrating harm or an intention to harm’, and ‘demonstrating threatening conduct’. However, there were also some suggestions which aimed to ensure the inclusion of an appropriately broad range of behaviours. These included, for example, the addition of the phrase ‘…and / or behaviour motivated by bias, prejudice or hatred’.

Comments on ‘evincing’ versus ‘demonstrating’ 

4.15 Some public and third sector organisations and some individuals agreed that the threshold language should be updated, but they thought that only the word ‘evincing’ needed to be changed. These respondents argued that the phrase ‘malice and ill will’ was well established and understood. They favoured the phrase ‘demonstrating malice and ill will’ which they thought would be accessible to members of the public while also offering greater assurance with regard to maintaining the meaning of the current threshold. However, there was a concern expressed by some in this group that the use of the word ‘demonstrating’ might suggest that the ‘hostility’ had to be observable at the time of the offence.

Views of those who were unsure whether the language of the thresholds would be easier to understand if it was changed to ‘demonstrating hostility’

4.16 In the main, respondents who were unsure about the possible rewording of the legal thresholds made similar points to other respondents – for example, they appreciated the aim of updating the language used, but were concerned about a possible loss of clarity, change of meaning or change of threshold; or, alternatively, they thought the language proposed was not simple enough and called for further work to be done in this area.

4.17 Amongst those who answered ‘unsure’ at Question 2, a small number of additional views were also put forward (mainly by individuals):

• Both the current and proposed wording were unsatisfactory – they were both too unclear, too ‘vague’ or too ‘subjective’ in their meaning.
• Adjusting the wording of the thresholds would not change the perceived problems with hate crime laws.
• The wording of the threshold was not important, as long as those applying the law adopted a consistent approach. 

The impact of changing the language of the thresholds (Q3)

4.18 Table 4.2 shows that there was a mix of views on whether the proposed change of language would change how the thresholds for statutory aggravations are applied – 43% of respondents thought they would, 24% thought they would not, and 33% were unsure. However, individuals were more likely than organisations to answer ‘yes’ (44% compared to 30%) to this question – that is, they thought the change of wording would change the application of the thresholds. It is notable that half of organisations (47%) said that they were unsure on this issue.

Table 4.2: Q3 – Do you think changing the language of the thresholds for the statutory aggravations from ‘evincing malice and ill will’ to ‘demonstrating hostility’ would change how the thresholds are applied?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	5	15%	10	30%	18	55%	33	100%
Public sector / partnerships	5	24%	5	24%	11	52%	21	100%
Faith groups	7	58%	1	8%	4	33%	12	100%
Other organisations	5	63%	1	13%	2	25%	8	100%
Total organisations	22	30%	17	23%	35	47%	74	100%
Total individuals	286	44%	154	24%	203	32%	643	100%
Total (organisations and individuals)	308	43%	171	24%	238	33%	717	100%

Percentages may not total 100 due to rounding.

4.19 Altogether, 409 respondents (63 organisations and 346 individuals) provided further comments at Question 3. The views of respondents are discussed below.

Views on how a change of language might affect application of the thresholds

4.20 As show in Table 4.2, there was a mix of views on whether changing the language of the thresholds for statutory aggravations would change their application. It is also notable that some respondents (over a third of those who answered ‘yes’ at Question 2) answered ‘yes’ to both Questions 2 and 3 – that is, they agreed that the proposed language was easier to understand, but also thought this would affect the application of the thresholds, and, in most cases, thought this was undesirable. 

4.21 The comments made at Question 2 and 3 illustrated a range of views on the likely impact of the proposed change to the wording of the thresholds, with three main views expressed as follows:

• The proposed wording could lead to a ‘lowering’ of the legal thresholds and the capturing of an unacceptably broad spectrum of conduct within their definition. Respondents offering this view thought that the wording was ‘too subjective’ and ‘too open to interpretation’. They thought this created a risk that expressing disagreement and differences of opinion and ‘causing offence’ could be interpreted as ‘demonstrating hostility’, and that the threshold would potentially criminalise low-level and trivial conduct. 
• The revised wording could have a positive impact in clarifying the full range of actions included within the remit of hate crime; this could increase understanding and help with the identification, reporting and investigation of hate crimes, which may, in turn, lead to an increase in prosecutions and convictions.
• The proposed change maintained the current meaning of the thresholds and, therefore, it would not have any significant impact on how they were applied. Respondents offering this view thought that clear definitions and accompanying guidance would help ensure that issues did not arise regarding application of the threshold. Some did, however, suggest that the revised wording would help ensure the thresholds were more consistently and correctly applied. 

4.22 Occasionally, respondents expressed concern that the proposed wording would have the effect of raising the legal threshold thus making it harder to prosecute incidents as hate crimes.  

4.23 A number of additional views were also put forward – each offered by just one or two respondents:

• It was not possible to predict the impact of the proposed revised wording on the application of the thresholds. 
• The impact of any change would be determined by police and judicial action and would become clear in the development of judgements and case law over time. 
• Any change of language could lead to a perception that the meaning of the thresholds had changed, and steps would need to be taken to ensure that the correct message about the policy aim was conveyed.  

Other relevant comments on the wording of the thresholds 

4.24 Across all groups of respondents there was a number of common points raised, with respondents noting the importance of:

• Making any policy intention associated with the change of wording (including that of no change in meaning) clear, possibly by including in statue 
• Any changes to hate crime laws being accompanied by easily accessible guidance for professionals and the public (including those with special needs) to ensure full understanding and appropriate application 
• Clarity and consistency regarding terminology and definitions of the thresholds, and their application in practice (e.g. in relation to the meaning of ‘demonstrating hostility’ and the type of behaviour covered by this).

Other relevant comments on the legal thresholds

4.25 Respondents raised a number of other issues about the legal thresholds for hate crimes. These included the following:

• Some respondents who were concerned about the potential lowering of the legal thresholds called for the inclusion of a ‘reasonable person’ test (i.e. would a reasonable person think the conduct met the required threshold), clear evidence of intent, or a requirement for corroboration.
• Some respondents thought it was important that the thresholds were designed to capture a broad range of behaviours including (i) repeated low-level incidents which individually may not meet the threshold for criminal conduct; or (ii) conduct where an individual is targeted because of a group they belong to, but there is nevertheless no ‘demonstration of hostility’.