Hate crime legislation independent review: consultation (non-technical guide)

Introduction

The independent review of hate crime legislation was announced on 26 January 2017 by Annabelle Ewing, Minister for Community Safety and Legal Affairs. The review is conducted by Lord Bracadale, a retired judge of the Court of Session.

The review follows the work of the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion, chaired by Dr Duncan Morrow, which reported in September 2016. The Independent Advisory Group looked at a wide range of factors that could combat hate crime and prejudice. It concluded that the language used around hate crime was unclear and recommended that Scottish Government should explore this further.
It also recommended that further consideration should be given to the scope of existing hate crime legislation and whether it should be extended. Hate crime laws have been created in a number of different pieces of legislation over the last 50 years, and this may be part of the reason why they are not now well understood.

There have been other recent developments which are also relevant to the decision to hold the review. These include a murder case with a religious motivation which did not fall within the current law on hate crime and concerns expressed in the Scottish Parliament and elsewhere about how the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is working in practice.

The remit for this review is:

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

In particular, Lord Bracadale will 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 laws should be adjusted, including whether the 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 a new legislative framework, ensuring this interacts effectively with other legislation guaranteeing human rights and equality

How the review is being carried out

Lord Bracadale has set out the process which he intends to follow on his website:
http://www.hatecrimelegislationreview.scot.

At the outset of the review process, Lord Bracadale took a number of steps to obtain initial information and evidence about what people consider to be hate crime and how well the current criminal justice system deals with this.

He 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, experience and impact of hate crime. The review received 180 responses to the questionnaire. These have been analysed by Dr Rachel McPherson of Glasgow University, and the analysis report is available on the review website.

Lord Bracadale and his team held a series of fact-finding meetings with police officers, prosecutors from the Crown Office and Procurator Fiscal Service ( COPFS) and sheriffs. They also met or have had discussions with a wider range of interested parties in the community. A list of the organisations is set out at Annex B.

Lord Bracadale asked Professors James Chalmers and Fiona Leverick of Glasgow University to prepare an academic report analysing the current law in Scotland and considering the relevant law in other countries. The report is available on the review website.

The review has also considered a large range of reports and existing material which has been published on the subject of hate crime, including the annual statistics about hate crime prosecutions published by COPFS and the Scottish Government.

Lord Bracadale is now seeking views through an extensive consultation exercise. The intention is to explore what type of conduct the criminal law should identify as hate crime and whether the current set of offences adequately covers such conduct. Lord Bracadale has produced three versions of the consultation paper:

• a full version, aimed mainly at a technical, legal audience;
• this non-technical guide, which is intended for the general reader with no specialist legal knowledge;
• an ‘easyread’ guide using simple language and pictures.

The questions in the consultation paper are deliberately open and we have not set out provisional proposals at this stage. We would welcome input from anyone with an interest in hate crime legislation. We recognise that this is a wide topic and that many people will have a specific interest in one or more elements of this. You are welcome to provide answers to any or all questions.

Some of the topics which are discussed in the full consultation document are not specifically covered in this version because we think their technical, legal nature means that they may be of more limited interest to a wide audience. We set out below a list of these topics and where the discussion in the full document may be found.

• A proposal to consolidate hate crime in one piece of legislation [ chapter 4]
• the International Holocaust Remembrance Alliance approach to defining antisemitism [ chapter 4]
• Sentencing and recording [ chapter 4]
• Freedom of expression and stirring up of hatred [ chapter 6]
• Alternative means to regulate social media platforms [ chapter 6]
• The relevance of public disorder to the offence in section 1 of the Offensive Behaviour at Football and Threatening Communication (Scotland) Act 2012 [ chapter 7]
• The application of other offences to the behaviour covered by section 1 of the 2012 Act [ chapter 7]

In addition, if you wish to raise any relevant points that are not the focus of questions within either paper please contact Lord Bracadale’s team at secretariat@hatecrimelegislationreview.scot.

The consultation exercise will run from 31 August to 23 November 2017. During that period, Lord Bracadale and members of his team will be attending a number of events in order to raise awareness of the consultation paper, answer questions and encourage well-informed responses to shape the review’s final recommendations. A list of the events, which are open to the public, 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.

Non-technical guide

This non-technical guide, which is being issued along with the full consultation paper, is intended for the general reader with no specialist legal knowledge. Annex A contains a glossary of legal terms.