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

Chapter 3: Current hate crime legislation in Scotland

As explained in chapter 1, hate crime is behaviour which is motivated by, or shows, hatred, malice, ill-will or prejudice towards people because they form part of a specific group, such as people of a particular race or sexual orientation.

When a court finds a person guilty of an offence, it can take a number of factors into account in deciding how to sentence them. These are called ‘aggravations’ where they make the offence more serious (for example, the fact that the accused had previously threatened the victim) or ‘mitigation’ where they make it less serious (for example, if the offender was provoked by the victim). The existence of an aggravating or mitigating factor has no impact on whether the person is guilty of the underlying offence; just how they are punished for it. Under common law, it has always been possible for courts to take prejudice into account as an aggravating factor.

However, Parliament passed legislation which goes further and states that certain factors must be treated as aggravations. Where the factors apply, the court must record this and take the aggravation into account when sentencing. These are known as statutory aggravations. Scottish criminal law currently includes statutory aggravations based on the following forms of prejudice:

• race: section 96 of the Crime and Disorder Act 1998
• religion: section 74 of the Criminal Justice (Scotland) Act 2003
• disability: section 1 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009
• sexual orientation and transgender identity: section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009.

(There are also some statutory aggravations which relate to other factors, such as domestic violence, but they are not relevant here.)

So, for example, a person might attack someone outside a nightclub. If it is proved in court that the accused carried out the attack and intended to injure the victim, then the accused will be found guilty of assault. That offence is ‘general’, in the sense that it could be committed against any victim. If it is shown that the accused attacked the victim because it was a gay nightclub and the accused had a particular dislike for lesbians, then the court must find that the assault was aggravated by prejudice related to sexual orientation. The accused’s criminal record would specifically show that he had committed a hate crime, and the court would be required to take that factor into account when sentencing.

In addition to the statutory aggravations, there are also a number of specific hate crime offences. We have referred to these as ‘standalone offences’. These are different from the general offences, in that they specifically target behaviour motivated by hatred, malice, ill-will or prejudice towards people because of the group they belong to. Parliament has created these standalone offences to tackle particular forms of hate or prejudice-related behaviour.

At present, these offences are:

• racially aggravated harassment and conduct: section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995;
• offensive behaviour in relation to a regulated football match which is likely or would be likely to incite public disorder: section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012;
• threatening communications: section 6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012;
• offences under sections 18, 19 and 23 of the Public Order Act 1986 which prohibit the use of threatening, abusive or insulting words, behaviour or written material which will stir up racial hatred. For example, there have been successful prosecutions under these provisions in relation to the publication of material relating to Holocaust denial.