Hate crime legislation independent review: consultation (technical version)

Chapter 9: Other specific issues

Under-reporting

From our discussions with representatives of groups in the community who represent or deal with people with the existing protected characteristics it is clear that there is a serious issue of underreporting of incidents of hate crime. We repeatedly heard similar reasons in relation to each of the characteristics. These included:

• lack of awareness of what hate crime is;
• people did not recognise the particular conduct as a crime;
• people accepted that certain types of conduct just happened to 'people like them';
• an expectation that being abused was just part of daily life;
• people did not consider the behaviour perpetrated against them serious enough to report;
• people thought that nothing could be done to prevent low-level harassment on the street;
• a feeling that they do not have a strong enough case to take to the police:
• people questioned whether there would be any benefit in reporting a crime;
• not knowing to whom to speak in order to report the crime;
• a general lack of confidence in the police;
• concern that no action will be taken by the criminal justice authorities;
• a lack of understanding about the criminal justice system;
• concern about the implications if action is taken – e.g. having to go to court and potentially being 'outed' as transgender, leading to sensationalist press reporting;
• people were not prepared to go through the process of reporting when it is something that happens to them frequently;
• sometimes people had an awareness of negative experiences that others have had in the context of criminal proceedings;
• fear of victimisation, retribution or reprisals;
• concerns about deportation in the case of refugees and asylum seekers;
• by reporting hate crime asylum seekers could be portraying their community, or indeed Scotland, in a bad light;
• feelings of isolation and lack of confidence;
• communication barriers.

This level of under-reporting raises a very serious problem. A criminal justice system designed to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice can only make a meaningful impact if the victims of such offences are willing to report the offence to the authorities. We note that the issue of under-reporting of hate crime has been recognised by the Scottish Ministers. On 13 June 2017, Angela Constance, Cabinet Secretary for Communities, Social Security and Equalities, made a statement on the report of the Independent Advisory Group. She noted that under-reporting was raised as an issue time and time again in relation to hate crime and announced the creation of a multi-agency delivery group to be chaired by herself. The issues to be addressed included under-reporting.

Among the list of bullet points above is the concern expressed that giving evidence may lead to sensationalist and unwelcome press coverage. The example cited to us was of a transgender person who had such an experience after reporting a hate crime, being "outed" in a local newspaper. This had discouraged others from reporting hate crime. There is a tension between, on the one hand, the general rule that proceedings in court should be open to the public and be subject to open press reporting and, on the other hand, the need to protect witnesses in certain situations.

The review would welcome views as to whether any legislative steps may be taken to improve the current levels of under-reporting.

Question:

Do you have any views as to how levels of under-reporting might be improved? Please give reasons for your answer.

Do you consider that in certain circumstances press reporting of the identity of the complainer in a hate crime should not be permitted?

If so, in what circumstances should restriction be permissible?

Third party reporting

A related issue which arose in discussions with the interested party groups was the efficacy of the system of third-party reporting which has been put in place by Police Scotland. The Police Scotland website states:

"To ensure all victims/witnesses are able to report Hate Crimes, Police Scotland works in partnership with a wide variety of partners who perform the role of 3rd Party Reporting Centres. Staff within 3rd Party Reporting Centres have been trained to assist a victim or witness in submitting a report to the police and can make such a report on the victim/witnesses behalf."

While most of those to whom we spoke thought that the third party reporting centres were a good idea, many of them identified difficulties in practice. The ambition of Police Scotland for the scheme did not match the capacity of individual centres to deal properly with reports. The number of case workers was limited and the quality of training might be improved. A concern was voiced by the Coalition for Racial Equality and Rights ( CRER) that if low-level incidents were reported and handled badly it was likely that people might be deterred from reporting more serious incidents. According to Stonewall, the reporting rates through third party reporting centres was relatively low. Others observed that it is unclear whether people knew that the centres were there or what their role was. Not all the centres which were listed were in fact operational. It was often the case that staff in the centres were unclear how to deal with victims who attended at third party reporting centres.

Question:

Do you consider that a third party reporting scheme is valuable in encouraging the reporting of hate crime?

If so, how might the current scheme be improved?

Diversion from prosecution and restorative justice

As noted in chapter 7 Sacro offer a nationwide diversion scheme for young people charged under section 1 of the 2012 Act. In addition:

• Sacro also offer a scheme in Glasgow and Lanarkshire which deals with hate crime more generally ^[23] . The scheme ( STOP: SACRO Tackling Offending Prejudices) was initially run as a pilot and focused specifically on sectarianism, but has been widened out and now accepts referrals for all forms of low-level hate crime.
• Sacro have an adult restorative justice programme which can operate as a diversion to prosecution in relation to any offence where the person responsible accepts that they committed the offence and the victim is willing to be involved ^[24] .

The programmes described above apply instead of prosecution before the court. If the person does not engage with the programme effectively, the COPFS can decide to proceed with the prosecution.

Sacro are also consulting on the possibility of applying a similar programme as a form of community order following conviction. This might mean that, instead of imposing a fine or prison sentence on a person who was found guilty of an offence, the sheriff could require the person to undertake some kind of programme to understand the impact of the offence on the victim. It is important to recognise that because of the risk of re-traumatisation such a programme could only apply where the victim was willing to be involved.

Question:

Are diversion and restorative justice useful parts of the criminal justice process in dealing with hate crime? Please give reasons for your answer.

Should such schemes be placed on a statutory footing? Please give reasons for your answer.