Hate crime legislation independent review: consultation (technical version)

Introductory Chapter

Background

On 26 January 2017, Annabelle Ewing, the Minister for Community Safety and Legal Affairs, announced the appointment of an independent review into hate crime legislation in Scotland to be conducted by Lord Bracadale. The review was established following the publication in September 2016 of the report of the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion, chaired by Dr Duncan Morrow, which recommended that the Scottish Government should (a) lead discussion on the development of clearer terminology and definitions around hate crime, prejudice and community cohesion; and (b) consider whether the existing criminal law provides sufficient protections for those who may be at risk of hate crime, for example based on gender, age or membership of other groups such as refugees and asylum seekers. On 9 November 2016 the Report of the Independent Advisory Group was the subject of a debate in the Scottish Parliament.

Separately, opposition parties had indicated an intention to support repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. James Kelly MSP had consulted on a Member's Bill to repeal the Act (his Bill was introduced in June 2017).

Further, a recent case had raised an issue in relation to a crime committed with a religious motivation. On 7 July 2016, at the High Court in Glasgow, Tanveer Ahmed pled guilty to the murder of Asad Shah, a shopkeeper in Glasgow. Although Ahmed admitted that he had committed the murder because he felt Mr Shah had disrespected the Prophet Muhammad and had claimed to be a prophet himself, prosecutors considered that the offence did not fall within the statutory provision of hate crime relating to religious prejudice and could not therefore be subject to a statutory aggravation.

Finally, hate crime legislation had been developed in a piecemeal manner and the question arose as to whether harmonisation and consolidation was needed.

Remit

Against that background, the remit of the Review is in the following terms:

To consider whether existing hate crime law represents the most effective approach for the justice system to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice.

In particular, to consider and provide recommendations on:

• Whether the current mix of statutory aggravations, common law powers and specific hate crime offences is the most appropriate criminal law approach to take.
• Whether the scope of existing hate crime law should be adjusted, including whether the existing religious statutory aggravation should be adjusted to reflect further aspects of religiously motivated offending.
• Whether new categories of hate crime should be created for characteristics such as age and gender (which are not currently covered).
• Whether existing legislation can be simplified, rationalised and harmonised in any way such as through the introduction of a single consolidated hate crime act.
• How any identified gaps, anomalies and inconsistencies can be addressed in any new legislative framework, ensuring this interacts effectively with other legislation guaranteeing human rights and equality.

Reference Group

Lord Bracadale is supported by a secretariat comprising Victoria MacDonald, legal secretary to the review, and Carole Robinson, project manager. Lord Bracadale invited a number of individuals to form a reference group, and their details may be found on the review's website.

The reference group has met on two occasions and members have engaged in extensive email communication in relation to the preparation of this consultation paper. Lord Bracadale is very grateful for their invaluable assistance.

Academic research

Lord Bracadale commissioned Professors James Chalmers and Fiona Leverick, both of the University of Glasgow, to prepare an academic report. Their report, which analyses the current law in Scotland and carries out a comparative exercise with other jurisdictions, is found at Appendix 1.

Website

The Secretariat established a website ( http://www.hatecrimelegislationreview.scot). This forms the hub for communications with all interested parties.

Questionnaire

At the outset of the review process, Lord Bracadale sent out a letter to a large number of interested organisations explaining the purpose of the review and encouraging them and their members to participate in the consultation exercise in due course, and to complete a short questionnaire about their understanding and experience of the impact of hate crime. The review received 180 responses to the questionnaire. The responses were analysed by Dr Rachel McPherson. Her report is found at Appendix 2.

Meetings

Lord Bracadale and the secretariat have already participated in a series of fact-finding meetings. These have included meetings with police officers, representatives of the Crown Office and Procurator Fiscal Service ( COPFS) and sheriffs. Lord Bracadale has also met with a wide range of interested parties in the community. These included representatives of groups with an interest in the currently protected characteristics and a number of potential additional characteristics, as well as those with particular interest in the 2012 Act and its possible repeal. A list of the organisations that Lord Bracadale and his secretariat have met or had discussions with is set out in the annex to this document.

Lord Bracadale is very grateful to all those who have contributed to the preliminary fact-finding work.

Other material

Many of the groups provided helpful material. In addition, Lord Bracadale and the Secretariat have engaged in desktop research into a significant body of material relating to hate crime which is available online. They have liaised with officials in other administrations within the UK to ensure the review takes into account relevant developments.

Statistics

COPFS and the Scottish Government publish annual statistics in relation to hate crime in Scotland. The most up-to-date statistics, relating to the financial year from April 2016 to March 2017, were published on 9 June 2017 and have been taken into account in this consultation paper.

Consultation paper

The consultation exercise will run from 31 August to 23 November 2017.

Purpose of the consultation

The questions set out in the various sections of the consultation paper are deliberately of a relatively open nature and invite the expression of views. Provisional proposals are not advanced at this stage. The responses, which will be analysed by professional analysts, will inform Lord Bracadale's Report to the Scottish Ministers based on the remit of the review.

It is recognised that not all consultees will wish, or feel able, to answer all of the questions. Consultees are encouraged to answer questions where they feel it appropriate to do so. If consultees wish to raise any relevant points that are not the focus of questions within this paper please contact Lord Bracadale's secretariat at secretariat@hatecrimelegislationreview.scot

Structure

Chapter 1 : addresses what is meant by the term "hate crime" in Scotland and the justification for having hate crime legislation.

Chapter 2 : then sets out the wider human rights context.

Chapter 3 : considers the history and development of the current Scots law in relation to hate crime and the salient features of the provisions.

Chapter 4 : explores certain issues in relation to the statutory aggravation provisions.

Chapter 5 : addresses issues arising in relation to racially aggravated harassment and conduct under section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995.

Chapter 6 : examines the provisions relating to stirring up of hatred and offences committed online.

Chapter 7 : examines the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and consequences of its possible repeal.

Chapter 8 : considers the question of whether additional protected characteristics should be added.

Chapter 9 : addresses a number of specific issues, including whether hate crime legislation has a role to play in relation to under-reporting and appropriate sentencing.

Consultees should read the chapters of the consultation paper along with the relevant parts of the Academic Report.

Versions

We have produced three versions of the consultation paper:

• this full version, aimed mainly at a technical, legal audience;
• a non-technical guide, aimed at the general reader with no specialist legal knowledge;
• an "easy read" version using simple language and pictures.

Events

During the period of the consultation, Lord Bracadale, members of the secretariat and members of the Reference Group intend to participate in a number of events run by interested parties, with a view to explaining the purpose of the review and encouraging participation in the consultation process. A list of the events which are open to members of the public to attend is included on the review website.

Once the consultation period closes, the responses will be analysed and Lord Bracadale will consider whether there is a need for any further information before preparing his report. The report will be published in early 2018. It will then be for the Scottish Ministers to decide how to take forward Lord Bracadale's recommendations.