Consultation on amending Scottish hate crime legislation: analysis of responses

7. Age (Q11)

7.1 The consultation paper discussed the issue of hostility based on age. Lord Bracadale’s report of the independent review of hate crime legislation noted that, whilst many crimes against the elderly are motivated by a desire to exploit the perceived vulnerability of the victim, some crimes are motivated by hostility based on the perceived age of the victim. Lord Bracadale recommended that there should be a new statutory aggravation based on age hostility (Recommendation 10), and that this statutory aggravation would cover people of any age.

7.2 Respondents were asked if they agreed with Lord Bracadale’s recommendation:

Question 11: Do you think that a new statutory aggravation on age hostility should be added to Scottish hate crime legislation? [Yes / No / Unsure]

Key points

• There were mixed views among respondents about whether a new statutory aggravation on age hostility should be created. Overall, 29% said ‘yes’; 54% said ‘no’; and 17% said ‘unsure’ (representing 155, 292 and 90 out of a total of 537 respondents). Organisations (64%; 46 out of 72 respondents) were more likely than individuals (23%; 109 out of 465 respondents) to say ‘yes’ to this question.
• Those in favour argued that there was a need for legislation in this area and there should be a consistent approach to statutory aggravations applied across all protected characteristics. These respondents also thought that the creation of a new statutory aggravation relating to age would act as a deterrent to age-related hostility and encourage reporting of crimes against older people.
• Those opposed thought that there was little evidence of age-related hostility being targeted either at older people or at young people and, therefore, legislation in this area was not needed. Some thought a statutory aggravation relating to age would be unworkable in practice.
• Respondents noted that most offences committed against the elderly were likely to be motivated by a perpetrator’s perception of the victim’s vulnerability, rather than hostility towards their age. Some respondents saw this as a reason not to introduce a new aggravation; others were concerned about the feasibility of distinguishing between these two motivations and called for ‘clear guidance’ to assist law enforcement bodies.

7.3 Table 7.1 shows an overall mixed response to whether a new statutory aggravation on age hostility should be added to Scottish hate crime legislation – 29% said ‘yes’; 54% said ‘no’; and 17% said ‘unsure’. However, whilst a majority of individuals indicated disagreement on this point (60%), almost two-thirds of organisations (64%) expressed agreement. Compared to other organisations, who mainly agreed on this question, faith groups expressed mixed views.  

Table 7.1: Q11 – Do you think that a new statutory aggravation on age hostility should be added to Scottish hate crime legislation?

Percentages may not total 100% due to rounding.

7.4 A total of 257 respondents (66 organisations and 191 individuals) commented at Question 11. The remainder of this chapter discusses the views of those in favour of and those opposed to of a new statutory aggravation relating to age. Note that respondents who answered ‘unsure’ at Question 11 often made similar points to those who answered ‘no’ and therefore their views are not covered separately.

Views in favour of a new statutory aggravation on age hostility

7.5 Respondents who answered ‘yes’ to Question 11 (both organisations and individuals) gave three main reasons for supporting a statutory aggravation on age hostility.

• First, they believed that there was a need for legislation in this area. Third sector and public sector organisations, in particular, often described what they considered to be age-related hostility. This included physical assault, sexual assault, harassment, coercion, threats, intimidation, theft, fraud, neglect, lack of respect and being talked down to. It was suggested that hostility towards older people may be the result of perceptions that older people receive more state support (including financial support) than younger people. It was also said that offences against older people are often treated relatively leniently by the courts.
• Second, they pointed to an issue of equality: Some respondents argued that age is a protected characteristic under the Equality Act 2010 and suggested statutory aggravations for all protected characteristics would represent a consistent approach. This view was particularly common among third sector and some ‘other’ organisational respondents. Some within this group suggested that there was no good reason to exclude age as a statutory aggravation, even if the aggravation may not be used frequently. Others suggested that age-related hate / hostility may become more prevalent in the future given the ageing profile of Scotland’s population. 
• Third, respondents thought that legislation could provide a deterrent: Some argued that the creation of a statutory aggravation relating to age would ‘send a strong message’ that the mistreatment of individuals based on their age will be treated seriously and will not be tolerated. It was suggested that this may therefore act as a deterrent, and may encourage more people to report crimes in the belief that they will be taken more seriously. This view was expressed by law and justice bodies, some third sector organisations and some individual respondents.

7.6 Occasionally, respondents thought that a statutory aggravation relating to age could help address age-related discrimination in the workplace and in recruitment processes. This view was mainly expressed by individuals.

7.7 Some respondents (mostly third sector organisations) who answered ‘yes’ to Question 11 supported the point made in the consultation paper that a statutory aggravation relating to age should also cover age-related hostility directed towards children. This group acknowledged that most situations in which a child or young person is a victim of a hate crime are likely to relate to child’s ethnicity, religion, sexual orientation, disability or transgender identity, rather than their age. Nevertheless, they thought it was important that children and young people received the same protection from the law as other groups should this occur. Some respondents suggested that there is a ‘persistent societal and media prejudice’ towards children and young people, which can result in children being exploited, or exposed to violence.

Views opposed to a new statutory aggravation for age hostility

7.8 Respondents who answered ‘no’ to Question 11 (both organisations and individuals) generally thought that a new statutory aggravation relating to age hostility was unnecessary. This group often commented that there was little evidence of age-related hostility targeted either at older people or young people. Instead, they argued that crimes committed against older people were more likely to be motivated by the perceived vulnerability of the victim, rather than by hatred per se. (See also paragraphs 7.12 to 7.14.) 

7.9 Some respondents in this group thought a statutory aggravation relating to age would be unworkable in practice – and they queried what specific age(s) the aggravation would apply to. They also argued that a perpetrator’s perception of a person’s age may differ from their actual age.

7.10 Finally, one organisation highlighted the point made by Lord Bracadale in his report that many of the crimes committed by children are committed against other children – and may be regarded as bullying. Whilst bullying may cover a wide range of behaviours, some of which may amount to hate crime, Lord Bracadale considered that this did not require a change in the law – rather, the problem of bullying should instead be addressed through other policy activity.

7.11 Among individual respondents, a range of other views were expressed, including that: (i) all victims should be given the same protection and support, regardless of their age or other characteristics; (ii) only physical acts of hostility (not insults) should be criminalised; (iii) there is no need for any additional statutory aggravations or other development of hate crime legislation as current legislation is sufficient; and (iv) the focus should be on tackling the ‘root causes’ of prejudice through improved education rather than creating new offences. Some individuals suggested that introducing more categories of hate crime would simply add complication and waste resources.

Age-related hostility versus age-related vulnerability

7.12 A recurring theme in the comments at Question 11 related to the distinction between age-related hostility and the exploitation of vulnerability. This issue was raised both by organisations and individuals, irrespective of whether respondents ticked ‘yes’, ‘no’ or ‘unsure’ to the closed question. In addition, the views expressed were often applied both to older people and children and young people.

7.13 The main points made (as noted above) were that crimes against older people were more likely to be motivated by the perpetrator’s perception of the victim’s vulnerability rather than age-related hostility. Respondents who answered ‘no’ or ‘unsure’ often highlighted this point in their explanation for opposing or expressing uncertainty about the creation of a new statutory aggravation. Respondents also voiced concern about the practical feasibility of distinguishing between these two types of motivations. Those who answered ‘yes’ suggested that ‘clear guidelines’ and examples would have to be made available to the police and prosecutors to avoid operational confusion.

7.14 Other views, mentioned less often, including the following:

• There were suggestions that it may be more appropriate to introduce an ‘exploitation of vulnerability’ aggravation. (See Chapter 13 for further discussion of this.)
• Some respondents raised concerns about possible unintended consequences for children and young people of introducing a new statutory aggravation on age hostility. The point was made that careful consideration was needed to ensure that the behaviour of children and young people is appropriately addressed – through education and rehabilitation – whilst also ensuring that the rights and needs of victims are supported and defended.