Legal definition of sectarianism working group: final report

Section 6: Conclusions and Recommendations

Having considered these arguments, the Advisory Group has concluded that Option 3, set out in Section 5 of this report, represents the best and most effective way to incorporate a legal definition of sectarianism into Scots law, within the limited powers of the Scottish Parliament.

We conclude there is merit in properly labelling offences as being motivated by sectarian prejudice. We conclude that the status quo – and Lord Bracadale’s review proposals – both fail to capture the intersectional reality of sectarian prejudice in modern Scotland, which is characterised not only by religious antipathy based on perceived Christian denominational affiliation, but also hostility expressed in terms of perceived British or Irish national origins and citizenship, or a combination of the two. Not only would this intersectional aggravator name and better capture the reality of modern sectarian prejudice in the field of criminal law, we believe it may also have advantages for police and prosecutors in properly labelling, charging and prosecuting offending involving the demonstration of sectarian hostility.

Our draft legislative language (below) is based on the already applicable law on religious and racial prejudice aggravators, updated to reflect the modernised vocabulary recommended by Lord Bracadale’s report. If adopted, this aggravator would introduce the language of sectarian prejudice into Scots Law for the first time. It explicitly locates sectarian prejudice in the context of Roman Catholic and Protestant animus, but recognises the intersectional character of modern sectarianism by incorporating demonstrations of hostility, expressed in terms of perceived Irish of British national origins or citizenship. Alone, this aggravator creates no additional criminal offences, nor does it extend the scope of behaviour which is, or is not, criminal.

As this aggravator is intended to be incorporated into the consolidated Hate Crime Bill which the Scottish Government will be developing over the next few years, it focuses on the concept of demonstrating hostility based on the victim’s imagined characteristics. Like the existing law, this aggravator is based principally on the perceptions of the accused, not the characteristics of the victim.

To take one worked example of how the aggravator could operate in practice, consider the facts of the 2009 case of William Walls v Procurator Fiscal Kilmarnock.^[65] Walls was charged with committing a breach of the peace. Walls had been observed shouting a combination of the following at a Kilmarnock v Rangers match at Rugby Park: “the famine is over,” “Fenian bastard” and “f*** the Pope.” Under the existing law, this breach of the peace was treated as aggravated by both religious and racial prejudice. Under the proposed sectarianism aggravator, it could be classified as being aggravated by sectarian prejudice, as it combines elements of both condition (a) – anti-Catholic – and condition (b) – anti-Irish – hostility. It could also apply to the facts and circumstances of the alleged attack against Canon Tom White in Glasgow on 07 July 2018.^[66]

We recommend that the following definition of sectarianism should be incorporated into a consolidated Hate Crime Bill, alongside the existing aggravators based on religious and racial hatred:

Aggravation by sectarian prejudice

(1) This subsection applies where it is—

(a) libelled in an indictment, or specified in a complaint, that an offence is aggravated by sectarian prejudice, and

(b) proved that the offence is so aggravated.

(2) For the purposes of this section, an offence is aggravated by sectarian prejudice if either Condition A or Condition B are met, or if Condition A and Condition B are both met.

(3) Condition A is that —

(a) at the time of committing the offence or immediately before or after doing so, the offender demonstrates hostility towards the victim (if any) of the offence based on the victim’s membership (or presumed membership) of a Roman Catholic or Protestant denominational group, or of a social or cultural group with a perceived Roman Catholic or Protestant denominational affiliation; or

(b) the offence is motivated (wholly or partly) by hostility towards members of a Roman Catholic or Protestant denominational group, or of a social or cultural group with a perceived Roman Catholic or Protestant denominational affiliation, based on their membership of that group.

(4) Condition B is that –

(a) at the time of committing the offence or immediately before or after doing so, the offender demonstrates hostility towards the victim (if any) of the offence based on the victim’s membership (or presumed membership) of a group based on their Irish or British nationality (including citizenship) or ethnic or national origins; or

(b) the offence is motivated (wholly or partly) by hostility towards members of a group based on their Irish or British nationality (including citizenship) or ethnic or national origins.

(5) For the purpose of this section it is immaterial whether or not the offender’s hostility is also based (to any extent) on any other factor.

(6) The court must—

(a) state on conviction that the offence was aggravated by sectarian prejudice,

(b) record the conviction in a way that shows that the offence was so aggravated, and

(c) take the aggravation into account in determining the appropriate sentence.

(7) For the purposes of this section, evidence from a single source is sufficient to prove that an offence is aggravated by sectarian prejudice.

(8) In subsections (3)(a) and (4)(a)—

“membership” in relation to a group includes association with members of that group; and “presumed” means presumed by the offender.

(9) In this section, “Roman Catholic or Protestant denomination group” means a group of persons defined by reference to their—

(a) Roman Catholic or Protestant denominational religious belief or lack of religious belief;

(b) membership of or adherence to a Roman Catholic or Protestant denominational church or religious organisation;

(c) support for the culture and traditions of a Roman Catholic or Protestant denominational church or religious organisation; or

(d) participation in activities associated with such a culture or such traditions.

Stirring up hatred offences

Lord Bracadale recommends that – alongside aggravators which can be attached to underlying criminal charges – Scots law should be reformed so there is a substantive incitement offence which applies in respect of each of the protected characteristics, where it can be shown that:

(i) The accused has behaved in a “threatening or abusive” manner, and either

(ii) intends to stir up hatred against one of the protected characteristics identified, or

(iii) hatred would be likely to be stirred up in those circumstances.

If a sectarian prejudice aggravator was, as we recommend, incorporated into a consolidated hate crime Bill, the logic of codification and consolidation – married with Lord Bracadale’s strong recommendation that there should be no internal hierarchy among protected characteristics – would weigh in favour of introducing a new offence of stirring up sectarian hatred alongside the proposed offences of stirring up hatred on grounds including race, gender and sexuality. This could be done straightforwardly by adapting the language of Conditions A and B in the draft aggravator.

To do so would not extend the criminal offence Lord Bracadale has recommended the Scottish Parliament should introduce. If the distinctive concept of stirring up sectarian hatred was not introduced, the stirring up of hatred based on British or Irish nationality, national origins and citizenship or Christian denominational affiliation would be caught by Lord Bracadale’s protected characteristics of race and religion.

While we are convinced of the case for introducing a sectarian prejudice aggravator, introducing a new substantive criminal offence of stirring up hatred must be undertaken with extreme care, with particular regard to free expression and the need for appropriately high legal thresholds to justify criminal sanctions. In this respect, we welcome and support Lord Bracadale’s recommendation that any new offences concerned with the stirring up of hatred must incorporate explicit recognition of the right to free expression under the European Convention on Human Rights and differentiate between behaviour which genuinely incites hatred from robust, critical, and perhaps challenging and difficult forms of expression concerning any of the protected characteristics. We also welcome his recommendation that any stirring up offence should be subject to a defence that it is reasonable in all the circumstances. These safeguards are essential if legislative overreach is to be avoided.

To establish the new stirring up offence, Lord Bracadale recommends that prosecutors need only demonstrate that either (a) the accused intended to incite hatred, or that (b) hatred was likely, in the circumstances, to be stirred up by the threatening or abusive behaviour.

We are not yet convinced that this approach represents an adequately high threshold for the application of the criminal law, which will apply to a number of areas of social life often characterised by strong emotions, contested ideas, and difficult conversations. It might be argued, for example, that any stirring up offence – whether applying to sectarian hatred or to homophobia or racial hatred – should be a crime of intention only.

The idea of recklessly stirring up hatred may cast the net of the criminal law too widely. As drafted, the incitement offence could also be committed even if there was no evidence that the threatening or abusive behaviour was likely, in the circumstances, to stir up hatred against the protected group. This approach may also be questionable. It could be argued that it would be more appropriate, in addition to having to prove the accused intended to stir up hatred, for prosecutors to also establish that the behaviour was actually likely, in all the circumstances of the case, to stir up hatred.

The legal detail of any new incitement to hatred offence must be carefully scrutinised and subject to a broad and searching consultation by the Scottish Government, including scrutiny by the Scottish Parliament and wider civic society. While Lord Bracadale rejected both approaches, we believe the merits of these elements of his hate crime report proposals should be carefully re-examined in public consultation, insofar as they might apply to any new offence of stirring up of sectarian hatred, or to incitements to antisemitism, transphobia or Islamophobia or any other protected characteristic.