Independent review of hate crime legislation in Scotland: final report

Annex 3

Current Law

The current Scottish hate crime legislation comprises a mixture of:

• statutory aggravations in relation to each of the protected characteristics, which can attach to any offence, but do not themselves create any new offences;
• a standalone offence of harassment in respect of race; and
• offences of stirring up racial hatred.

A: Statutory aggravations

The statutory aggravations, which can apply to any baseline offence, cover each of the currently protected characteristics of race, religion, disability, sexual orientation and transgender identity. The full text of each statutory aggravation is given here:

Crime and Disorder Act 1998
Section 96: Offences racially aggravated.

(1) The provisions of this section shall apply where it is—
(a) libelled in an indictment; or
(b) specified in a complaint,
and, in either case, proved that an offence has been racially aggravated.

(2) An offence is racially aggravated for the purposes of this section if—
(a) at the time of committing the offence, or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim's membership (or presumed membership) of a racial group; or
(b) the offence is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group,
and evidence from a single source shall be sufficient evidence to establish, for the purposes of this subsection, that an offence is racially aggravated.

(3) In subsection (2)(a) above—
"membership", in relation to a racial group, includes association with members of that group;
"presumed" means presumed by the offender.

(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) above whether or not the offender's malice and ill-will is also based, to any extent, on—
(a) the fact or presumption that any person or group of persons belongs to any religious group; or
(b) any other factor not mentioned in that paragraph.

(5) The court must—
(a) state on conviction that the offence was racially aggravated,
(b) record the conviction in a way that shows that the offence was so aggravated,
(c) take the aggravation into account in determining the appropriate sentence, and
(d) state—
(i) where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or
(ii) otherwise, the reasons for there being no such difference.

(6) In this section "racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.

Criminal Justice (Scotland) Act 2003
Section 74: Offences aggravated by religious prejudice

(1) This section applies where it is—
(a) libelled in an indictment; or
(b) specified in a complaint,
and, in either case, proved that an offence has been aggravated by religious prejudice.

(2) For the purposes of this section, an offence is aggravated by religious prejudice if—
(a) at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim's membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation; or
(b) the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.

(2A) It is immaterial whether or not the offender's malice and ill-will is also based (to any extent) on any other factor.

(4A) The court must—
(a) state on conviction that the offence was aggravated by religious prejudice,
(b) record the conviction in a way that shows that the offence was so aggravated,
(c) take the aggravation into account in determining the appropriate sentence, and
(d) state—
(i) where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or
(ii) otherwise, the reasons for there being no such difference.

(5) For the purposes of this section, evidence from a single source is sufficient to prove that an offence is aggravated by religious prejudice.

(6) In subsection (2)(a)—
"membership" in relation to a group includes association with members of that group; and
"presumed" means presumed by the offender.

(7) In this section, "religious group" means a group of persons defined by reference to their—
(a) religious belief or lack of religious belief;
(b) membership of or adherence to a church or religious organisation;
(c) support for the culture and traditions of a church or religious organisation; or
(d) participation in activities associated with such a culture or such traditions.

Offences (Aggravation by Prejudice) (Scotland) Act 2009
Section 1: Prejudice relating to disability

(1) This subsection applies where it is—
(a) libelled in an indictment, or specified in a complaint, that an offence is aggravated by prejudice relating to disability, and
(b) proved that the offence is so aggravated.

(2) An offence is aggravated by prejudice relating to disability if—
(a) at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to a disability (or presumed disability) of the victim, or
(b) the offence is motivated (wholly or partly) by malice and ill-will towards persons who have a disability or a particular disability.

(3) It is immaterial whether or not the offender's malice and ill-will is also based (to any extent) on any other factor.

(4) Evidence from a single source is sufficient to prove that an offence is aggravated by prejudice relating to disability.

(5) Where subsection (1) applies, the court must—
(a) state on conviction that the offence is aggravated by prejudice relating to disability,
(b) record the conviction in a way that shows that the offence is so aggravated,
(c) take the aggravation into account in determining the appropriate sentence, and
(d) state—
(i) where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or
(ii) otherwise, the reasons for there being no such difference.

(6) In subsection (2)(a), "presumed" means presumed by the offender.

(7) In this section, reference to disability is reference to physical or mental impairment of any kind.

(8) For the purpose of subsection (7) (but without prejudice to its generality), a medical condition which has (or may have) a substantial or long-term effect, or is of a progressive nature, is to be regarded as amounting to an impairment.

Section 2: Prejudice relating to sexual orientation or transgender identity

(1) This subsection applies where it is—
(a) libelled in an indictment, or specified in a complaint, that an offence is aggravated by prejudice relating to sexual orientation or transgender identity, and
(b) proved that the offence is so aggravated.

(2) An offence is aggravated by prejudice relating to sexual orientation or transgender identity if—
(a) at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to—
(i) the sexual orientation (or presumed sexual orientation) of the victim, or
(ii) the transgender identity (or presumed transgender identity) of the victim, or
(b) the offence is motivated (wholly or partly) by malice and ill-will towards persons who have—
(i) a particular sexual orientation, or
(ii) a transgender identity or a particular transgender identity.

(3) It is immaterial whether or not the offender's malice and ill-will is also based (to any extent) on any other factor.

(4) Evidence from a single source is sufficient to prove that an offence is aggravated by prejudice relating to sexual orientation or transgender identity.

(5) Where subsection (1) applies, the court must—
(a) state on conviction that the offence is aggravated by prejudice relating to sexual orientation or transgender identity,
(b) record the conviction in a way that shows that the offence is so aggravated,
(c) take the aggravation into account in determining the appropriate sentence, and
(d) state—
(i) where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or
(ii) otherwise, the reasons for there being no such difference.

(6) In subsection (2)(a), " presumed" means presumed by the offender.

(7) In this section, reference to sexual orientation is reference to sexual orientation towards persons of the same sex or of the opposite sex or towards both.

(8) In this section, reference to transgender identity is reference to—
(a) transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004 (c.7), changed gender, or
(b) any other gender identity that is not standard male or female gender identity.

Offences which commonly attract statutory aggravations

Although the statutory aggravations can attach to any offence, some offences are more commonly charged in conjunction with statutory aggravations than others. The following table sets out the detail of a number of such offences. This is intended to provide context and illustration.

Offence	Conduct	Offender's state of mind	Outcome of the prohibited conduct	Sentence
Common law breach of the peace	Conduct severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. Conduct must be genuinely alarming and disturbing, in its context, to any reasonable person. Smith v Donnelly 2002 JC 65		If no evidence of actual alarm, conduct had to be flagrant – i.e. severe enough to cause alarm to any reasonable person and to threaten serious disturbance to the community. Montgomery v Harvie 2015 JC 223	Common law offence – sentence subject to limitations of sentencing court.
Common law issuing threats [Largely superseded by section 38 offence, but common law offence was used in Smart v Donnelly [2012] HCJAC 113]	Written or oral threats of violence	Offence committed even if person had no intention of carrying threats into effect		Common law offence – sentence subject to limitations of sentencing court.
Threatening or abusive behaviour Section 38 Criminal Justice and Licensing (Scotland) Act 2010	Behaves in a threatening or abusive manner [Note: defence if behaviour was, in all the circumstances, reasonable.]	Intention to cause fear or alarm OR reckless as to whether the behaviour would cause fear or alarm	Behaviour would be likely to cause a reasonable person to suffer fear or alarm Note: objective test – no requirement to show whether the complainer suffered fear or alarm: Patterson v Harvie 2015 JC 118 – Lord Justice General Gill	Indictment: max 5 years imprisonment or fine or both Summary conviction: max 12 months imprisonment or fine up to statutory maximum (currently £10,000) or both.
Stalking Section 39 Criminal Justice and Licensing (Scotland) Act 2010	Engages in a course of conduct ( i.e. conduct on at least two occasions). Specific forms of conduct described, including following a person or acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm. [Note: defences for conduct authorised by rule of law; prevention and detection of crime; or conduct that was otherwise reasonable in the particular circumstances.]	Intention to cause B fear or alarm OR A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear or alarm.	B does in fact suffer fear or alarm	Indictment: max 5 years imprisonment or fine or both Summary conviction: max 12 months imprisonment or fine up to statutory maximum or both.
Improper use of a public electronic communications network Section 127(1) Communications Act 2003	Sends a message or other matter by public electronic communications network that is grossly offensive or of an indecent, obscene or menacing character OR causes such a message or matter to be sent.			Summary only: Max imprisonment 6 months or fine up to level 5 (£5,000) or both.
Improper use of a public electronic communications network Section 127(2) Communications Act 2003	Sends a message by public electronic communications network that he knows to be false, OR causes such a message or matter to be sent, OR persistently makes use of a public electronic communications network	For the purpose of causing annoyance, inconvenience or needless anxiety to another		Summary only: Max imprisonment 6 months or fine up to level 5 (£5,000) or both.
Communicating indecently etc. Section 7 Sexual Offences (S) Act 2009 [Note: separate offences re communicating indecently with younger and older children – sections 24 and 34]	Sends a written sexual communication or directs a verbal sexual communication at B WITHOUT B consenting to the communication or A having a reasonable belief that B consents [Note: a communication is sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual: s. 60(2).]	Acts intentionally and for the purpose of (a) obtaining sexual gratification; OR (b) humiliating, distressing or alarming B	[Note: irrelevant whether or not B was in fact humiliated, distressed or alarmed by the thing done by A: s. 49(2).]	Indictment: max imprisonment 10 years or fine or both. Summary complaint: max 12 months imprisonment or fine up to statutory maximum or both.

B: Standalone offence
Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995: racially-aggravated harassment and conduct

(1) A person is guilty of an offence under this section if he—
(a) pursues a racially-aggravated course of conduct which amounts to harassment of a person and—
(i) is intended to amount to harassment of that person; or
(ii) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person; or
(b) acts in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress.

(2) For the purposes of this section a course of conduct or an action is racially aggravated if—
(a) immediately before, during or immediately after carrying out the course of conduct or action the offender evinces towards the person affected malice and ill-will based on that person's membership (or presumed membership) of a racial group; or
(b) the course of conduct or action is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

(3) In subsection (2)(a) above—
"membership", in relation to a racial group, includes association with members of that group;
"presumed" means presumed by the offender.

(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) above whether or not the offender's malice and ill-will is also based, to any extent, on—
(a) the fact or presumption that any person or group of persons belongs to any religious group; or
(b) any other factor not mentioned in that paragraph.

(5) A person who is guilty of an offence under this section shall—
(a) on summary conviction, be liable to a fine not exceeding the statutory maximum, or imprisonment for a period not exceeding [twelve] months, or both such fine and such imprisonment; and
(b) on conviction on indictment, be liable to a fine or to imprisonment for a period not exceeding seven years, or both such fine and such imprisonment.

(6) In this section—
"conduct" includes speech;
"harassment" of a person includes causing the person alarm or distress;
"racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins,
and a course of conduct must involve conduct on at least two occasions.

C: Stirring up hatred offences

Part 3 of the Public Order Act 1986 makes it an offence to stir up racial hatred in five situations:

• using threatening, abusive or insulting words or behaviour or displaying written material which is threatening, abusive or insulting (section 18);
• publishing or distributing written material which is threatening, abusive or insulting (section 19);
• presenting or directing the public performance of a play involving the use of threatening, abusive or insulting words or behaviour (section 20);
• distributing, showing or playing a recording of visual images or sounds which are threatening, abusive or insulting (section 21); and
• providing a programme service, or producing or directing a programme, where the programme involves threatening, abusive or insulting visual images or sounds, or using the offending words or behaviour therein (section 22).

"Racial hatred" means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins. In each case, the person commits the offence if he or she intends to stir up racial hatred by doing the specified act or if, having regard to all the circumstances, racial hatred is likely to be stirred up thereby.

The maximum sentence on summary conviction is 12 months imprisonment or a fine up to the statutory maximum or both. The maximum sentence if convicted on indictment is 7 years imprisonment or a fine or both.