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

Chapter 1: What do we mean by hate crime legislation and why does it exist?

This chapter is in two parts: Part 1 explores what is meant by the term “hate crime” in Scotland; Part 2 examines the justification for having hate crime legislation.

Part 1: What is meant by hate crime

“Hate crime” is a well-used term in Scotland and elsewhere, but what does it mean? It can mean different things to different people and for different purposes. In this paper we want to know what it means for the purpose of prosecuting persons who have committed what is described as a hate crime.

In the full consultation paper we have used the following as a working definition, which comes from Hate Crime: Impact, Causes and Reponses, by the academics Neil Chakraborti and Jon Garland:

“…the creation of offences, or sentencing provisions, ‘which adhere to the principle that crimes motivated by hatred or prejudice towards particular features of the victim’s identity should be treated differently from ‘ordinary’ crimes’ although legislation may define hate crimes by reference to concepts other than motivation, such as the demonstration of hostility based on a particular feature of the victim’s identity, or the selection of the victim on the basis of a particular feature.”

There are two important aspects to this definition. First, not every crime committed by a person who hated the victim can be called a hate crime. Assaulting someone just because you hate them as a person does not make it a hate crime. What makes it a hate crime is if you committed the crime due to your hate or prejudice against the victim because of their race, religion, disability, sexual orientation or transgender identity. These groups are described as “protected characteristics”.

Secondly, in terms of the working definition, a hate crime does not even need to be motivated by hate. It is enough to amount to a hate crime if the person shows prejudice or hostility towards the victim because of the victim’s membership of a group. That will very often be shown by making, for example, a racist remark while committing an offence such as breach of the peace or assault.

It is important to understand this because sometimes neither the victim nor the perpetrator recognises the incident to be based on, or driven by, hate. Sheriffs have told us that many hate crimes are committed by relatively ordinary people in the course of other incidents, rather than people who set out to act in a deliberately bigoted way.

The existing law will be examined in more detail in chapter 3. You may also wish to read the whole of this paper before answering this question.

Question:
Do you consider that the working definition, discussed in this chapter, adequately covers what should be regarded as hate crime by the law of Scotland? Please give reasons for your answer.

A victim oriented approach

The recommendations in the Macpherson report into the murder of Stephen Lawrence led to a change in the approach adopted by police forces across the United Kingdom in relation to the investigation and recording of hate crime. The report reflected concern that the police and wider criminal justice system made decisions about what had happened, and why, without listening effectively to victims’ and families’ fears that this was a hate crime. Sir William Macpherson therefore recommended that any incident which is perceived as racist by the victim or any other person should be recorded as a racist incident. He also recommended that the term “racist incident” should be used for all incidents reported as such by the public, whether or not the police initially considered them to be crimes, and that all should be reported, recorded and investigated with equal commitment.

This recommendation led Police Scotland to record “hate crime” and “hate incidents”. Hate crime is recorded as “Any offence which is perceived by the victim or any other person as being motivated by malice or ill-will towards a social group” (see Police Scotland: “Hate Crime Standard Operating Procedure”). The intention is that recording in this way will require investigators to take seriously the possibility that a crime might be hate-motivated and ensure they secure and preserve any relevant evidence which may show that. If the allegation does not amount to a crime, the police will record it as a “hate incident”. This is described as being “any incident that is not a criminal offence, but something which is perceived by the victim or any other person to be motivated by hate or prejudice”. Members of the public are encouraged to report any such incidents as well as hate crimes.

This approach can, however, give rise to a certain tension. There are some circumstances where the police initially record a crime as a hate crime because the victim or another person perceived it as such, but there turns out to be insufficient evidence to proceed with prosecuting it as a hate crime. Prosecutors have told us that this can result in dissatisfaction for victims. Similarly, the recording of hate incidents can give rise to misunderstandings as to what amounts to hate crime.

The upholding of the post-Macpherson approach is seen by many as essential because it was designed to ensure that perceived ‘hate-fuelled’ behaviour is properly investigated. However, it appears that the attempt to record information about the two categories may also contribute to the lack of understanding about the definition of hate crime which was detected by the Independent Advisory Group.

Question:
How can we prevent tensions and misunderstandings arising over differences in what is perceived by victims, and others, to be hate crime, and what can be proved as hate crime? Please give reasons for your answer.

Part 2: Justification for hate crime law

The Academic Report identifies two reasons why hate crime should be punished more severely than non-hate crime. First, hate crimes are more likely to cause harm both to the direct victim and to members of the group to which the victim belongs than non-hate crimes. Secondly, it is important to send a message, both to victims and to wider society, that bias and inequality of treatment will not be tolerated. Such a message may also be viewed as positively encouraging community cohesion, where people have a common vision and sense of belonging, regardless of any differences between them. Many other countries share the view that legislating against hate crime is justified for similar reasons.

The responses to the Questionnaire broadly reflected these reasons. We asked about the impact that the experience of hate crime had on people. The effects included: emotional effects; mental health impact; social and practical impacts. The emotional effects included: feeling scared and fearful, hurt or upset; feeling powerless and helpless; feeling intimidated; feeling panicked; being shocked or horrified; feeling ashamed or guilty; experiencing anger and annoyance; being offended/disgusted; feeling vulnerable, frustrated, resentful, unsettled and uncomfortable. The mental health impacts included stress, depression and anxiety. The social and practical impacts included: social isolation; feeling disengaged from society; losing trust; having to move house to a different area; moving job; altering behaviour.

On the other hand, critics of hate crime legislation argue that it amounts to punishment of opinions and leads to particular groups being singled out for special treatment under the law. Some claim that it represents an extreme form of “political correctness”.

Question:
Should we have specific hate crime legislation? Please give reasons for your answer.