Hate crime legislation independent review: consultation (technical version)

Chapter 2: Human rights context

There are a number of international human rights agreements which are relevant to the criminalisation of conduct motivated by group hatred, malice, ill-will or prejudice.

• European Convention for the Protection of Human Rights and Fundamental Freedoms ( ECHR)
• International Covenant on Civil and Political Rights ( ICCPR)
• International Convention on the Elimination of All Forms of Racial Discrimination ( CERD)
• Convention on the Rights of Persons with Disabilities ( CRPD)
• Convention on the Rights of the Child ( CRC)
• Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention)
• Framework Convention for the Protection of National Minorities

Only the European Convention for the Protection of Human Rights and Fundamental Freedoms (' ECHR') is directly enforceable in domestic law by virtue of the Human Rights Act 1998 and the requirements on Scottish Ministers under the Scotland Act 1998. Other instruments are not directly enforceable. Indeed, the Istanbul Convention has been signed but not yet ratified by the United Kingdom. However, both the Scottish Government and wider civil society are committed to exploring how Scotland can go beyond rights already enshrined in domestic law. There is agreement that the principles set out in wider human rights instruments should be used to deliver the shared vision of a Scotland where everyone can live with human dignity. That includes tackling injustice and exclusion in order to improve lives. The need for priority action to 'enhance respect, protection and fulfilment of human rights to achieve justice and safety for all' was identified by work done under Scotland's National Action Plan for Human Rights (2013-17). This includes recognising the importance of raising awareness of hate crime and ensuring that it can be tackled effectively.

At the international and Council of Europe levels, protection from bias-motivated crimes emanates from general anti-discrimination standards found in the International Covenant on Civil and Political Rights (' ICCPR'), the International Convention on the Elimination of All Forms of Racial Discrimination (' CERD') and the ECHR. These instruments prohibit discrimination in conjunction with the enjoyment of other protected rights, including the right to life and security of persons.

In relation to bias-motivated crimes, the European Court of Human Rights has ruled that "[w]hen investigating violent incidents, such as ill treatment, State authorities have the duty to take all reasonable steps to unmask possible discriminatory motives. Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights" ^[1] .

Article 20.2 ICCPR states that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law". Article 4(a) of CERD states that "all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin" shall be considered offences punishable by law.

Article 16(5) of the UN Convention on the Rights of Persons with Disabilities requires State Parties to "put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted".

Article 3(d) of the Istanbul Convention requires State Parties to take the necessary legislative and other measures to prevent all forms of violence covered by the scope of the Convention, including gender-based violence against women ( i.e., violence directed against a woman because she is a woman or that affects women disproportionately).

Article 6.2 of the Framework Convention on the Protection of National Minorities requires State Parties to undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.

Within the ECHR, articles 9 and 10 warrant particular consideration.

Freedom of thought, conscience and religion

Article 9 ECHR protects freedom of thought, conscience and religion:

9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

9.2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The rights in article 9 may be relevant in the context of hate crime for two reasons. First, conduct which is motivated by antipathy towards religious groups might interfere with the rights of persons in those groups to hold and manifest their religion or belief. The state may therefore have a positive obligation to take action to secure such rights – for example by prohibiting the offensive conduct. Second, a question could arise whether the expression of certain views related to religion or belief (for example, the criticism of other people or their actions as being incompatible with religious doctrine) should be permitted.

The right to hold particular beliefs is absolute. However, the right to manifest those beliefs may be qualified in accordance with article 9.2. It should be noted that the courts have drawn a distinction between action which is 'intimately linked' to the religion or belief, which can amount to a manifestation protected by article 9, and action which is merely motivated by a religious or other belief, which is not so protected.

It is possible to interfere with the manifestation of religion or beliefs if the limitation in question:

1. is prescribed by law

2. meets one of the legitimate aims set out in article 9.2

3. is necessary in a democratic society: does it correspond to a pressing social need; is it proportionate to the legitimate aim pursued; are the reasons given by the national authority to justify it relevant and sufficient?

4. is within the state's margin of appreciation.

It is therefore important to recognise that the freedom to practise or observe one's religion or belief does not provide protection for conduct (including speech) which is contrary to the fundamental tenets and values of the Convention.

Freedom of expression

Article 10 protects freedom of expression:

10.1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

10.2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The article may be relevant to hate crime and hate speech, particularly to conduct which stirs up hatred against members of particular groups. In principle, article 10 protects a wide range of expression, including spoken and written words, internet content, acts of protest and artistic performances. It covers the expression of both facts and opinions, and can apply both to the substance of the ideas and information expressed, but also to the tone and manner in which they are expressed. The courts have expressly noted that the right covers expression which shocks, offends and disturbs other people, as well as expression which is favourably received.

In some instances, the court has been prepared to find that expressions are so hateful that they do not fall within the protection of article 10 at all (and therefore can be restricted even in circumstances not falling within article 10.2). It has done this on the basis of article 17, which provides:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Recent cases suggest that the court is unwilling to ascribe article 10 protection to conduct or speech that incites violence against the "general" population based on extremist religious or racial views ( e.g. if you advocate for the violent overthrow of secular government and the instigation of a caliphate, or you promote the re-instatement of Nazi policies in relation to the destruction of the Jewish people, that will not attract article 10 protection). In cases where speech is intended to stir up hatred and violence, an applicant will not be permitted to rely on article 10 in order to destroy the rights and freedoms contained within it: Belkacem v Belgium, 34367/14, 27 June 2017; Garaudy v France, 65631/01, 24 June 2003; Norwood v UK, 23131/03, 16 November 2004.

In less extreme cases, the expression will fall within the scope of article 10. However, the right is still not absolute. In terms of article 10.2, restrictions (including penalties) may be imposed in certain circumstances to achieve listed aims. As with the restrictions on manifestation of religion and belief in article 9.2, a restriction may be imposed if it:

1. is prescribed by law

2. meets one of the legitimate aims set out in article 10.2

3. is necessary in a democratic society: does it correspond to a pressing social need; is it proportionate to the legitimate aim pursued; are the reasons given by the national authority to justify it relevant and sufficient?

4. is within the state's margin of appreciation.

A state may therefore choose to prohibit certain types of expression (including expression amounting to hate crime) where it is necessary to prevent disorder or to protect the rights of others. Whether the interference meets the third and fourth tests above will depend very much on the circumstances. The European Court of Human Rights places particular importance on the discussion of matters in the public interest, and so the state's margin of appreciation in relation to such matters will be narrower than in cases involving less worthy expressions such as obscenity or blasphemy.

The court has found interference with article 10 rights permissible in relation to the publication of a book with extreme comments about Islam ( Soulas v France, 15948/03, 10 July 2008), electoral leaflets exhorting foreigners to be sent home ( Feret v Belgium, 15615/07, 16 July 2009) and the distribution of leaflets outside schools stating that homosexuality is morally destructive and responsible for the spread of HIV/ AIDS ( Vejdeland and others v Sweden, 1813/07, 9 February 2012).