Independent review of hate crime legislation in Scotland: final report

Chapter 2 - Underlying principles

Introduction

2.1. In a civilised society or country people should be able to live together, respecting one another and treating each other fairly, regardless of differences. There should be no place for discrimination, prejudice, bias or bigotry. Although much has been done in Scotland, and elsewhere, to root out the manifestation of these negative elements, such conduct and behaviour persists.

2.2. In this chapter, I consider where hate crime fits in the range of legal and non-legal responses to behaviour that may reflect prejudice or discrimination. This will help to identify what sort of behaviour will, and will not, constitute 'hate crime' in the criminal law. I shall also examine the definition of hate crime and the justification for having hate crime legislation.

A range of responses

2.3. As a society we deal with discrimination and prejudice in a variety of ways. There is a range or spectrum of responses, depending on the nature of the issue. What constitutes a proportionate approach will depend on the circumstances. Some expressions of prejudice or bias will not be subject to legal action at all. People are free to think what they like and to express their views, even if they might be offensive to many people. Thus, for example, expressing the view that all religious people should keep their beliefs to themselves would not attract any legal response.

2.4. At some point, however, regulation of conduct becomes necessary. Some forms of regulation may be complied with on a voluntary basis. In some situations legal enforcement is required and conduct may be subject to the civil or criminal law. The legal response will depend on the nature of the conduct and the context in which it occurs.

Regulatory response

2.5. A regulatory framework sets out the rules which persons must follow if they wish to participate in a particular activity. Regulations can set standards designed to discourage conduct which might be discriminatory or prejudicial. While persons are under no obligation to take part in the activity, if they choose to do so they must abide by the rules. An example of a body which operates a regulatory scheme is the Advertising Standards Authority which regulates content of advertisements. It upheld a complaint about some posters advertising the Channel 4 series 'Big Fat Gypsy Weddings' on the basis that they were irresponsible, offensive and reaffirmed negative stereotypes and prejudice against the Traveller and Gypsy communities ^[8] .

Civil law response

2.6. The civil law is essentially concerned with regulating the relationship between individuals. In the context of prejudice, the civil law has a key role in addressing discrimination, for example, in the employee/employer relationship, in the provision of goods or services or on public transport. The remedy in a civil law dispute will usually be a requirement for one person to pay compensation to another or to take, or to stop taking, a particular course of action. Typical examples of the operation of the civil law in this area would be: a decision not to employ a person because he or she is a Muslim, which would be religious discrimination prohibited by the Equality Act 2010; or failing to provide disabled facilities on public transport.

Criminal law response

2.7. Some conduct is by its nature so morally wrong and harmful that it must be dealt with by the criminal law. Criminalisation involves the state taking action against the individual:

Criminal offences define acts (or omissions) which are so harmful that the wrong is thought to be against the state rather than the individual who has suffered the act; the state prosecutes and, on conviction by a court, the state punishes, by deprivation of liberty, fine or other means. ^[9]

2.8. Criminalisation as a form of regulation is a particularly serious step. It communicates condemnation and moral disapproval to convicted persons on the basis of their wrongdoing. It may lead to penalty and potential loss of liberty. A conviction will go on to the criminal record of the individual.

2.9. Hate crime legislation has developed as the means by which the criminal law addresses prejudicial conduct. In one case, a man who was annoyed at the noise his gay neighbour made putting out the bins in the early morning engaged in abusive shouting, in the course of which he made comments about the neighbour's sexual orientation including hoping that "people like you die of AIDS". This would amount to a breach of the peace aggravated by prejudice in relation to sexual orientation in terms of section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009. Another example would involve tipping a disabled person out of their wheelchair in the street which would amount to an assault aggravated in relation to disability in terms of section 1 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009.

Hate crime

Definition

2.10. There is no single accepted definition of the term 'hate crime'. Different definitions may be produced for different purposes. In the consultation paper I used the following working definition:

Offences "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" ^[10] .

'Prejudice' is expressed in terms of hostility, or, currently in Scotland, malice and ill-will. The definition is qualified in the sense that it is not necessary to prove motivation: it is sufficient if, in committing a crime the perpetrator demonstrates hostility based on a particular feature of the victim's identity.

2.11. The concept of 'particular features of the victim's identity' is expressed in terms of 'protected characteristics'. A protected characteristic is a characteristic shared by a group. Currently, in Scotland the criminal law recognises the following protected characteristics: race, religion, disability, sexual orientation and transgender identity.

2.12. The current Scottish hate crime legislation is described in annex 3. It comprises a mixture of: (a) aggravations in relation to each of the protected characteristics which can attach to any offence; (b) a standalone offence of harassment in respect of race; and (c) offences of stirring up racial hatred.

2.13. Although the definition was subject to criticism from a number of respondents, it was supported by others and I consider that it accurately describes hate crime. In the course of the report I shall address some of the concerns raised, including the clarity of the language in the legislation, extension of the protected characteristics and the targeting of victims because of their vulnerability.

Is hate crime legislation justified?

2.14. Some respondents to the consultation paper expressed the view there was no justification for having hate crime legislation at all. They raised concerns about the creation of different classes of victims and crimes, and the perceived granting of privilege to some groups in society over others. Respondents thought that there was a danger of the perpetuation of a state of 'victimhood' among some groups. Arguments were made that the law should offer the same protection to all individuals regardless of protected characteristics. Some respondents disputed the claim that hate crimes had any greater impact on the victims than other sorts of crimes. Others argued that the law should not be used by a government to send out messages or make political statements.

2.15. While recognising that the views held by those who oppose hate crime legislation are strongly felt, I am not persuaded by their arguments. From all the material considered by the review, including the Academic Report and the report of the analysis of the responses to the consultation paper, I consider that there are three clear bases for justifying hate crime legislation: (a) the harm which hate crime causes; (b) the symbolic function which legislation fulfils; and (c) the practical benefits which flow from it.

Harm

2.16. On the basis of all the material available to my review I am satisfied that hate crimes are likely to cause harm which is additional to the harm caused by the underlying offence. This involves harm both to the direct victim and to members of the group to which the victim belongs. Harm to the victim may include physical injury as well as mental distress leading to depression, anger, or anxiety. It may have a social impact such as to change the behaviour of the individual to avoid further victimisation. This may include moving home or job, avoiding public spaces and becoming socially isolated. In relation to the group to which the victim belongs, hate crime can reinforce in the minds of members that they are potential targets and they may become fearful of those with the same identity as the perpetrator. It can also have an impact on wider society: it may undermine moral values; create a less tolerant society and may increase social unrest. If not challenged, behaviour of this kind may become accepted as the norm. I conclude that the nature and extent of the harm caused by hate crime is a particularly strong justification for having hate crime legislation.

Symbolic function

2.17. Hate crime can fulfil a symbolic function in stating society's disapproval of the deliberate targeting of a member or members of a particular protected group. It is important to send a message to victims, offenders and wider society that hate crime behaviour will not be tolerated. While, of course, hate crime legislation on its own cannot change minds, it has the potential to contribute to long-term cultural change and the acceptance of diverse communities.

Practical benefits

2.18. Having specific hate crime legislation requires sentencers to take the aggravation into account in sentencing and the court to record the aggravation. This means that it will feature on the criminal record of the perpetrator and may be taken into account in the event of repeated offending. In addition, the maintenance of records provides statistical information which gives an indication of the scale of the problem and allows the monitoring of trends.

2.19. Having hate crime legislation on its own will not eradicate behaviour driven by prejudice. There needs to be understanding in society of what hate crime is and an effective process for dealing with it. Clearly defined hate crime legislation and well-developed procedures in the criminal justice system to deal with it will increase awareness of hate crime and give victims more confidence that it will be taken seriously by the police, prosecutors and the courts. This should encourage reporting of offences and ensure that victims of hate crime will be supported throughout the process.