Independent review of hate crime legislation in Scotland: final report

Chapter 3 - Current Statutory Aggravations

Introduction

3.1. In this chapter I examine how effectively the current statutory aggravations operate. I consider the current thresholds and whether they can be improved. I explore whether a third threshold should be added, which would capture offending based on perceived vulnerability. I examine a number of specific issues in relation to statutory aggravations and I look at the statutory requirements in relation to sentencing where a statutory aggravation is admitted or proved.

The statutory aggravation model

3.2. At the core of the current scheme of hate crime legislation is the model that allows any existing offence to be aggravated by prejudice in respect of one or more of the protected characteristics of race, religion, disability, sexual orientation and transgender identity. This model was first introduced in relation to race in 1998. Later, it was extended to cover first, religion, and subsequently the remaining protected characteristics. The legislation is set out in annex 3. It is important to understand that this approach does not involve the creation of new offences; rather, it involves an existing offence, such as an assault, being motivated by, or demonstrating, hostility in respect of one or more protected characteristics.

3.3. Where a person is convicted of an offence with a statutory aggravation in respect of a protected characteristic a number of consequences follow. First, the aggravation will be recorded and taken into account in sentencing. Secondly, the maintenance of records allows statistics to be kept and trends identified and monitored. Thirdly, and importantly, the aggravation will appear on the criminal record of the individual. This means that, if the person commits a further offence, the earlier aggravated conviction may be taken into account. I shall look in more detail at the requirements in relation to sentencing later in this chapter.

3.4. Over the years since their introduction, these provisions have been extensively used. Having express provisions requires the police (and wider criminal justice system) to be aware of the need to take potential identity hostility into account when investigating crime. Records have been maintained and annual statistics have been published. From the totality of the information available to the review I am satisfied that this approach has worked reasonably well and I recommend that the scheme of statutory aggravations should be retained and developed to form the basis of a clear and comprehensible scheme of hate crime legislation.

Recommendation 1

Statutory aggravations should continue to be the core method of prosecuting hate crimes in Scotland.

Current thresholds

3.5. Currently, there are two thresholds for proving the aggravation of prejudice:

• if at the time of committing the offence, or immediately before or after doing so, the offender evinces malice and ill-will towards the victim based on the protected characteristic; or
• if the offence is motivated (wholly or partly) by malice and ill-will towards members of a group defined by reference to the protected characteristic.

Thresholds: Responses to consultation paper

3.6. The consultation paper included a question as to whether the current thresholds were appropriate; 64% of organisations thought that thresholds were appropriate compared with 43% of individuals. Those who endorse the current thresholds considered that they provided clear and objective tests; it was appropriate to have the two thresholds; they allowed for flexibility. The thresholds provided an appropriate balance between protecting individuals and protecting free speech. Those who thought that the thresholds were too low were often concerned that 'simply' demonstrating hostility should not be marked out as hate crime. They considered that there might be an impact on free speech and the expression of individual views; hostility or prejudice (as perceived by a third party) should not be sufficient to constitute hate crime and a threshold of hatred would be more appropriate. Those who thought that the thresholds were too high considered that there could be difficulties in providing evidence to meet the required thresholds and the evidential timeframe of 'immediately before or after the offence' was too restrictive. Others considered that the threshold excluded particular types of crime, including crimes in which members of particular groups, for example older or disabled people, were targeted because of their vulnerability rather than because of any hostility towards the group in general. Others considered that it was important in determining whether an offence should be classed as a hate crime to understand the context of incidents and not focus solely on the use of specific offensive words or terms.

Current thresholds: conclusions

3.7. I accept the view expressed by the majority of organisations that the current thresholds are appropriate. I do not accept the criticism that the thresholds are too low. Requiring a threshold of motivation in every case would exclude many cases which should appropriately be marked as hate crimes.

3.8. The threshold of evincing malice and ill-will, or demonstrating hostility, may well catch words uttered 'in the heat of the moment'. But that should be no excuse. This threshold does not require the court or jury to make a judgment about the accused's character generally; what is significant is the fact of what has been said (or otherwise evinced) and the potential impact that has on the victim and the wider group who share the relevant protected characteristic. It is worth remembering here that this is not just a question of a person demonstrating hostility or using bad language towards another. The underlying conduct must amount to an offence (for example, threatening or abusive behaviour, contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010). The significance of the demonstration of hostility is that it highlights the context of that offending behaviour. The impact of a particular remark or action has to be taken into account: it upsets people in a direct way and targets the core identity of the individual or group. It is vital to send a message that this will not be tolerated or shrugged off as 'mere banter'. To do that risks undermining the principles of equality and respect.

3.9. The motivation test is also important, though much less commonly used in practice. However, because a case motivated by hostility may be particularly serious it is desirable to retain this specific test. For example, the first convictions for racially-aggravated murder in Scotland related to the murder of Kriss Donald in 2004. Kriss Donald was a white 15 year old boy who was abducted and murdered. Five men of Pakistani origin were convicted of racially aggravated murder. The evidence demonstrated that this was a deliberate and intentional attack on the victim only because he was white. In this instance the jury was satisfied that the crime was motivated by malice and ill-will against white persons.

Language

3.10. The consultation responses indicated a need for simpler, 'user-friendly' language in the legislation. When the first aggravation, in relation to race, was introduced in 1998 the phrase 'evincing malice and ill-will' was used in the Scottish provision and the phrase 'demonstrating hostility' was used in the equivalent provision for England and Wales. During the passage of the 1998 Bill, the Lord Advocate explained that the two phrases were intended to have the same effect, but on balance the phrase 'evincing malice and ill-will' was chosen because it had a historical place in Scottish criminal law and it was familiar to the Scottish courts ^[11] . The review has found strong evidence about the confusion which surrounds the concept of hate crime and the level of behaviour that constitutes a hate crime in the eyes of the law. That confusion makes it less likely that people will report or challenge their experience. I conclude that these considerations make it important for the legislation to be as clear as possible for those who may be affected by it, whether as victims or potential offenders. I take the view that to a layperson a phrase such as 'demonstrating hostility' is more easily understood than 'evincing malice and ill-will'. I stress that in recommending this change in the language I am not suggesting that there should be any change in the meaning or the legal definition of the thresholds.

Corroboration

3.11. As a general rule, no person may be convicted of a criminal offence in Scotland in the absence of corroborated evidence. This means that there must be at least two sources of evidence in respect of each essential element of the crime ^[12] . However, under the statutory aggravation provisions, it is sufficient to have evidence from a single source to establish the aggravation of prejudice. In other words, no corroboration is required.

3.12. It has always been the case that the courts could consider aggravating factors as a matter of common law where those factors are proved by just one source of evidence. This is because the factor goes to the consequences of conviction rather than whether the offence itself has been committed. This principle has been carried forward and applied to the statutory aggravations.

3.13. I am satisfied that it is appropriate that a statutory aggravation should be capable of being proved by a single source of evidence. I received no evidence that the rule causes any difficulty in practice.

Recommendation 2

The two thresholds for the statutory aggravations are effective and should be retained but with updated language. They should apply where:

• at the time of committing the offence, or immediately before or after doing so, the offender demonstrates hostility towards the victim based on the protected characteristic; or
• the offence is motivated (wholly or partly) by hostility based on the protected characteristic.

It should remain the case that evidence from a single source is sufficient evidence to establish the aggravation.

Possible third threshold: 'By reason of'

3.14. As noted previously, some respondents pointed out that the current thresholds would not apply to offences in which victims were targeted because of their vulnerability but where there was no express hostility involved. Some have advocated the introduction of a third threshold in which an offence is committed 'by reason of' the victim's membership of the group with the protected characteristic. This involves selecting a victim because of the group to which the victim belongs. It is based on identity rather than hostility. I recognise that the adoption of this threshold would allow the inclusion, as hate crime, of offences committed because of the perceived vulnerability of the individual arising from a protected characteristic. I consider this to be a serious issue and one which requires to be carefully examined. I do so under reference to the Academic Report and the recent report of work done by researchers in the University of Sussex: Hate Crime and the Legal Process: Options for Law Reform ^[13] .

3.15. Chapter 4 of the Academic Report identified two models of hate crime legislation. First, the animus model, in which a hate crime is committed where the offender is motivated by, or demonstrates, prejudice against a protected group. Secondly, the discriminatory selection model, in which a hate crime is committed where the victim has been selected because of their membership of a protected group. Most jurisdictions, including Scotland (as well as England and Wales), have legislated on the basis of the animus model. The current thresholds in the Scottish provisions reflect this.

3.16. In chapter 5, the Academic Report examines the alternative approach of defining protected groups around the notion of vulnerability. The advocates of this approach argue that what is important is not whether a group has historically suffered discrimination or oppression, but whether the group is vulnerable to violence because of their perceived difference.

3.17. Recently, a team of researchers at the University of Sussex, led by Professor Mark A. Walters, conducted research in relation to hate crime and the legal process in England and Wales. While the consultation period of the review was in progress, they issued their final report. The aim of the study was to assess the application of criminal laws in sentencing provisions for hate crime in England and Wales. The issue of perceived vulnerability arose in the context of the report's examination of the basis on which offences relating to disability are dealt with. The authors were particularly concerned with the small number of reported incidents which resulted in a sentence uplift in practice.

3.18. The report identified a type of discriminatory selection model used in certain states in the USA known as a 'group selection' model. Under this model, the offender must have 'selected' their victim from a particular protected group. Specific evidence of verbalised prejudice, bias, or hostility was not required. Instead, it was considered that, by virtue of specifically targeting a victim because of the victim's identity characteristics, the offender has evinced prejudice or bias towards that individual.

3.19. The report recognises that group selection models can be both broader and narrower than laws which incorporate an animus model. They are broader because they may capture cases where no outward manifestation of prejudice or bias is demonstrated by the offender. But they are narrower than 'demonstration of hostility' provisions because the prosecution needs to prove the reason underlying the behaviour, namely, that the offence was committed because of the victim's identity.

3.20. The report argues that the key to understanding the reasons for protecting certain groups from targeted victimisation in this way is to understand why certain groups are protected under hate crime law in the first place. Certain identity characteristics have been identified by the legislature as requiring special protection in the criminal law. Certain characteristics are protected in recognition that members of identity groups have been historically victimised and oppressed. The report identifies individual and community harm which may result from crime committed against such groups and the need to protect these groups from targeted abuse. The "decision to select a member of a protected group as his victim makes the perpetrator more blameworthy: he knowingly or recklessly joins other wrongdoers in a demonstration of bias and discrimination that ultimately harms our society" ^[14] .

3.21. Thus, the report concludes, the perceived vulnerability cannot be disentangled from the judgements that offenders make about the worthiness of their victim's value as human beings. Victims are 'selected' because their 'difference' means that they are deemed to be somehow of less value, and their worth as equal members of society is therefore diminished. The perceived vulnerability is based on a prejudice that the offender holds towards the victim. Hence, evidence showing that an offender purposively selects a perceivably vulnerable victim by reason of their protected characteristics is evidence of identity-based prejudice.

Problems with the perceived vulnerability approach

3.22. The principal difficulty with defining hate crime around vulnerability is that the message conveyed by labelling the crime as hate crime becomes diluted and the category of hate crime 'loses it special symbolic power'. Although there may be instances where a decision to target an individual because of their perceived vulnerability involves the offender making a value judgement about the individual's 'worthiness' based on their characteristic, as suggested in the Sussex report, I am not convinced that this will always be the case.

3.23. Vulnerability will usually arise from issues associated with a characteristic rather than from the identity characteristic itself. For example, some older people may be frail and have memory difficulties; others do not. An offender who deliberately targets a person they know to be vulnerable may well be doing so because of what they know of the specific individual rather than their views or value judgments about the wider group.

3.24. It is also difficult to apply this approach to cases where the characteristic is not the reason for the victim being targeted, but instead is associated with the reason the crime succeeds. For example, a bogus workman might target a number of people on a street and be successful in defrauding some of the neighbours but not others. This may be because the particular individuals are more easily deceived, and this could be considered to be related to their age or disability. However, it is not clear to me that this type of crime is what society would wish to mark out specifically as a hate crime.

3.25. These examples illustrate why I think a approach which considers why an offender selects victims risks mischaracterising exploitation as a hate crime.

3.26. There is also the danger that this approach could have practical difficulties and raise false expectations. It would be difficult for prosecutors to prove an intention to select a victim on grounds of an identity characteristic and the number of cases caught might be significantly less than hoped for.

3.27. This is controversial issue and I suspect that many people will have differing views. While I was initially attracted by the approach, for the reasons outlined above I ultimately decided not to recommend it. I have, however, set out the argument so that Ministers may judge it for themselves. I shall revisit this issue in the context of whether age should be added as an additional protected characteristic and I propose an alternative approach which could be used to recognise and tackle the phenomenon of targeting people who are, or are perceived to be, vulnerable without treating this as a form of hate crime.

Recommendation 3

Offending behaviour which involves the exploitation of perceived vulnerabilities should not be treated as a hate crime. (But see recommendation 11.)

Statutory aggravation: transgender identity and intersex

3.28. In the course of the fact-finding stage of the review, concern was raised by some interested parties as to whether the language used in the reference to 'transgender identity' in section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 was now out of date. Since 2009, understanding of gender identity has developed and it is likely to continue to do so in the future. Section 2 provides for the aggravation of an offence by prejudice relating to sexual orientation or transgender identity. Section 2(8) defines transgender identity as:

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.

3.29. The Explanatory Notes in respect of section 2(8) say:

… the definition gives four specific examples: transvestism (often referred to as 'cross-dressing'); transsexualism; intersexuality; and where a person has changed gender in terms of the Gender Recognition Act 2004. However, the definition also extends expressly to cover other persons under the generality of broad reference to non-standard gender identity. For example, those who are androgynous, of non-binary gender or otherwise exhibit a characteristic, behaviour or appearance which does not conform with conventional understandings of gender identity.

3.30. In the light of these concerns the consultation paper asked: Do you have any views about the appropriate way to refer to transgender identity and/or intersex in the law?

3.31. Two issues emerged. The first is that in section 2(8), as currently framed, 'intersex' is included as part of the definition of 'transgender'. While recognising that the 2009 Act remains progressive in that it covers intersex status and a wide definition of transgender people, including non-binary people, Equality Network contended that the language used in the Act does not reflect current understanding or best practice. In particular, intersex should be seen as a as a separate characteristic rather than as a sub-category of transgender identity.

3.32. Equality Network explained that they and the Scottish Trans Alliance ( STA) use the term 'transgender' and its shortened form 'trans' interchangeably, as an umbrella term for people who find their gender identity or gender expression differs from the gender they were assigned at birth. This includes, among other identities, non-binary people, trans women, trans men and cross-dressing people.

3.33. They use the term 'intersex' as an umbrella term for people who are born with variations of sex characteristics, which do not always fit society's perception of male or female bodies. Intersex is not the same as gender identity or sexual orientation.

3.34. A second issue was focused in the response of Stonewall Scotland who also recommended that the definition of 'transgender identity' be updated in line with current best practice. They explained that the terms 'transvestism' and 'transsexualism' are now widely viewed as outdated, and, indeed, some people find these terms offensive. These proposals were also supported by other respondents including Central Scotland Regional Equality Council and the Humanist Society Scotland.

3.35. The Scottish Government has recently completed a consultation on gender recognition, which could potentially lead to a modification of the Gender Recognition Act.

3.36. I consider that it would be desirable for the language of any future provision to reflect up-to-date terminology and usage and, as far as possible, relate directly to the issue rather than using labels which may again become outdated.

Recommendation 4

The drafting of any replacement for section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 should include 'intersex' as a separate category rather than a sub-category of transgender identity.

Consideration should be given to removing outdated terms such as 'transvestism' and 'transsexualism' from any definition of transgender identity (without restricting the scope of the definition).

Association with members of a protected group

3.37. Section 96 of the Crime and Disorder Act 1998 provides that an offence is racially aggravated if the offender evinces malice and ill-will based on the victim's membership (or presumed membership) of a racial group or the offence is motivated by malice and ill-will towards members of a racial group based on membership of that group. Section 74 of the Criminal Justice (Scotland) Act 2003 makes a similar provision in respect of membership (or presumed membership) of a religious group or of a social or cultural group with a perceived religious affiliation. In each case, 'presumed' means presumed by the offender and 'membership' includes association with members of the group. Thus, a person who does not actually have the protected characteristic could come within these provisions if (a) the perpetrator presumed that the person had the protected characteristic even if they did not; or (b) the victim had an association with members of the group.

3.38. When the aggravations in respect of the remaining protected characteristics of disability, sexual orientation and transgender identity were introduced in the Offences (Aggravation by Prejudice) (Scotland) Act 2009, the reference to "presumed by the offender" was retained, but the concept of association was not expressly included. Research into the 2009 Bill materials has not yielded any explanation as to why this approach was adopted.

3.39. It would seem appropriate for legislation to apply in cases where hostility is demonstrated because of a protected characteristic, even if the person to whom the hostility is expressed does not actually have the characteristic. In their submission to the Justice Committee considering the 2009 Bill, Action on Hearing Loss Scotland (the Royal National Institute for Deaf People) referred to examples of deaf families being the victims of crimes, and gave anecdotal evidence that such crimes also affected hearing members of the family. Such a provision would also catch offending behaviour against individuals who act as advocates or champions for groups with one of the protected characteristics.

Recommendation 5

The statutory aggravations should also apply where hostility based on a protected characteristic is demonstrated in relation to persons who are presumed to have the characteristic or who have an association with the protected characteristic.

Political/religious/racial cross-over

3.40. This section addresses an issue arising in relation to aggravations based on membership of a racial or religious group. It features in cases in which an offence is motivated by malice and ill-will towards a political entity ( e.g. foreign country, overseas movement) with which the victim is perceived to be associated by virtue of their racial or religious group.

3.41. The consultation paper cited examples of Jewish people being targeted because of a perceived association with the state of Israel, and Muslims being targeted because of a perceived association with Isis. Question 7 asked:

"Should an aggravation apply where an offence is motivated by malice and ill-will towards a political entity which the victim is perceived to be associated with by virtue of their racial or religious group?"

3.42. Those respondents who supported the introduction of an aggravation of this type argued that victims in such cases may be subject to attack because of the perpetrator's perception of the victim's membership of a religious or racial group, and such cases should therefore come within the law. They considered that it would be difficult to distinguish such attacks from other attacks motivated by malice and ill-will towards a racial or religious group per se.

3.43. A number of powerful arguments were advanced by those opposed to an aggravation of this type. There was a concern that the introduction of an aggravation based on malice and ill-will towards political entities would represent a move away from the principle of protected characteristics reflecting intrinsic personal characteristics. A new aggravation in this area would be difficult to legislate for and potentially contentious, and would therefore introduce complexity and uncertainty into the law. In addition, a new aggravation would be open to interpretation and abuse for political ends, and open to change over time, depending on the political climate.

3.44. A further argument was based on freedom of speech. Freedom to hold differing political views, and to debate those views, was fundamental to a democratic society and should be protected. This included freedom to subject political entities and foreign states to legitimate criticism. A new aggravation of this type could, therefore, have unintended consequences regarding the curtailment of freedom of expression and freedom of political debate.

Discussion

3.45. The right to engage in legitimate political protest is fundamental in a democratic society. There is a tension between, on the one hand, freedom of expression, which protects legitimate political protest, and, on the other hand, conduct which is racially aggravated. In the abstract, it can be difficult to distinguish political protest or criticism from racially/religiously aggravated conduct. In chapter 5 I examine the significance, in the context of stirring up of hatred offences, of article 10 of the European Convention on Human Rights ( ECHR). What emerges is that context and content of the conduct in any particular case is critical. Freedom of expression carries with it duties and responsibilities. There is an obligation to avoid, as far as possible, expressions of opinion or belief that are gratuitously offensive to others and thus an infringement of their rights (for example freedom of religion), and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.

3.46. It may be helpful to explore this issue through examples based on cases which have come before the court. In one case, members of the Scottish Palestine Solidarity Campaign shouted slogans during a concert at which the Jerusalem string quartet was performing. These included "they are Israeli army musicians"; "genocide in Gaza"; "end genocide in Gaza"; "boycott Israel". The accused were members of a political organisation which campaigns against Israeli occupation of the Palestinian Territories and advocates boycott. The content of their remarks was political in nature, including a call for a boycott. The evidence did not permit the inference that their comments were made because they presumed the musicians to be Israeli or Jewish.

3.47. Another case took place in student halls of residence in which both the accused and the complainer lived. The complainer was Jewish. Above his bed he had pinned an Israeli flag given to him by his brother, who was in the Israeli Defence Force. After a night out, the accused, who was very drunk, placed his hands inside his trousers onto his genitals and then rubbed his hand onto the Israeli flag and make comments of an offensive nature to a fellow student, saying, "Israel is a terrorist state, the flag is a terrorist symbol and you are a terrorist". This conduct went far beyond uttering expressions of protest about the actions of the Israeli state, and descended into actions that may easily be considered gratuitously offensive. That cannot be said to contribute in any way to a debate of public interest. In addition, he directed the phrase "you are a terrorist" directly at the complainer. There were no connections between the complainer and the actions of the State of Israel, and thus the hostility was manifestly directed towards him because of his perceived nationality or religion.

3.48. I accept the arguments advanced by those respondents who contended that hate crime legislation should not extend to political entities as protected characteristics. I consider that such an approach would extend the concept of hate crime too far and dilute its impact. The freedom of speech to engage in political protest is vitally important. For these reasons I do not recommend extending the range of protected characteristics to include political entities.

3.49. I consider that in most cases the conduct and the context in which it is engaged will indicate whether the circumstances are such that an offence is committed at all, and, if an offence is committed, such that an aggravation in respect of race or religion should properly be attached. The examples noted above illustrate this point.

Recommendation 6

I do not consider it necessary to create a statutory aggravation to cover hostility towards a political entity.

Religiously aggravated offending: belief held by individual rather than the group and non-religious beliefs

3.50. The remit of the review included consideration as to whether the existing religious statutory aggravation should be adjusted to reflect further aspects of religiously motivated offending. The background to this aspect of the remit was the murder of Asad Shah by Tanveer Ahmed in 2016. At the time that he pled guilty to the murder, Tanveer Ahmed issued a statement explaining that he had committed the murder because he felt Mr Shah had disrespected the Prophet Muhammad and had claimed to be a prophet himself. However, this did not indicate malice and ill-will against the deceased based on his membership (or presumed membership) of a religious group. There was no suggestion that any religious group (including the Ahmadi sect to which Mr Shah belonged) considered Mr Shah to be a prophet. Rather, it could be interpreted in terms of the perpetrator's attitude of malice and ill-will to the individual religious beliefs of the victim and the way in which the victim had expressed those beliefs. Accordingly, the Crown took the view that the case did not fall within section 74 of the 2003 Act.

3.51. In the light of that, the consultation paper posed the question: should an aggravation apply where an offence is motivated by malice and ill-will towards religious or other beliefs that are held by an individual rather than a wider group? Of the organisations which responded, 68% supported the proposition while 30% of individuals did so. Those supporting the extension of this aggravation felt it was important that the law protected people from being targeted because of their beliefs, regardless of how widely held those beliefs were. It was argued that religion, or other belief, forms part of an individual's personal identity, and the law should apply if a person is attacked because of who they are, or who they are perceived to be; the motivation of the perpetrator was the same, regardless of whether the beliefs were held by an individual or a group. Some respondents argued that the attack on Mr Shah had been clearly religiously motivated and it was therefore no different from other religiously motivated hate crimes. They also thought it was difficult to explain to the public why this case had not been classed as a hate crime.

3.52. Those who did not think there should be an aggravation based on malice and ill-will towards religious or other beliefs held by an individual rather than a group offered a range of reasons for their views, including the following:

• Hate crime legislation was specifically intended to demonstrate society's intolerance of prejudice and hatred towards identifiable groups with protected characteristics. Cases involving individually held beliefs fell outwith this remit.
• It would be too difficult to define individual religious and other beliefs for the purposes of the law.
• A new or revised aggravation was not required. It would make no material difference to how cases were prosecuted; existing judicial discretion allowed relevant factors to be taken into account in sentencing. This had been the approach of the judge in the case of Tanveer Ahmed.

3.53. The consultation paper also noted that in an article entitled The Lord Advocate's Lacuna ^[15] , Dr Phil Glover of Aberdeen University argued that section 74 was drafted too narrowly and on the assumption that individual religious practitioners inevitably form part of a wider religious, social or cultural group. Dr Glover noted that religious expression was an individual act of expression. The freedom of thought, conscience or religion enshrined in article 9(1) ECHR may be exercised "either alone or in community with others". Accordingly, Dr Glover argued, section 74 should also be capable of applying in relation to offences motivated by intolerance of the expression of an individual's beliefs as well as malice and ill-will based on membership of a religious group.

3.54. I have carefully considered the arguments advanced on each side of this debate. In my view, a consistent approach across the protected characteristics is highly desirable. This allows for a clear understanding of what is meant by hate crime. At its core is the concept of a shared protected characteristic. It would require strong arguments to depart from that principle. I am not persuaded that these are made out here. The Tanveer Ahmed case was a highly unusual one. I note that, in the event, it is clear from her sentencing statement that the judge in that case was able to take the particular religious motivation into account using the common law. Accordingly, I am not persuaded that there is any gap that requires to be filled by departing from the core approach of recognising hate crime in relation to a group with a protected characteristic. Accordingly, I do not propose to make a recommendation in respect of this particular issue.

3.55. In their response to the issue raised by the Tanveer Ahmed case, the Humanist Society Scotland argued that the law should recognise the manifestations of an individual's belief rather than membership of a set group. Where it could be shown that the manifestation of an individual's belief was an aggravating factor in the offence the court should be able to take that into account. This should extend to a person being targeted for being a humanist or an atheist. For the reasons explained above, I have rejected the contention that the religious belief of the individual should found a hate crime. In my view, the same would apply to the non-religious beliefs of an individual.

3.56. The Humanist Society Scotland also pointed out that section 74 of the Criminal Justice (Scotland) Act 2003 was restricted to offences aggravated by religious prejudice. By contrast, the civil law provisions of the Equality Act 2010 recognised 'belief' as comprising 'any religious or philosophical belief'. It was of concern to the Society that the criminal law did not extend protection to non-theistic beliefs such as humanism or atheism. I note that the background to the introduction of section 74 was the Report of the Cross-Party Working Group on Religious Hatred which reported in 2002. ^[16] The work of the group arose out of concerns about religious intolerance in Scotland. While in principle I consider that hostility towards members of a group based on non-theistic beliefs could give rise to hate crime, there was no evidence before the review to suggest that such an extension was required. This may be because individuals with non-theistic beliefs are less likely to form a group and consider themselves to be associated with one another through those beliefs. I am not satisfied that there is a gap in the law which requires to be addressed. In these circumstances I do not propose to make any recommendation along these lines.

Recommendation 7

I do not consider it necessary to extend the religious aggravation provision to capture religious or other beliefs held by an individual rather than a group.

Sentencing and recording

3.57. At the outset of this chapter I referred briefly to the statutory requirements in relation to sentencing cases where a statutory aggravation is admitted or proved. I now examine these in more detail. In each of the aggravation provisions there is a requirement on the sentencing court to:

• take the aggravation into account in determining the appropriate sentence;
• state on conviction that the offence was aggravated in relation to the particular characteristic;
• record the conviction in a way that shows that the offence was so aggravated; and
• to state, 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, otherwise, the reasons for there being no such difference.

3.58. As I mentioned in chapter 1 (process and methodology), I produced three versions of the consultation paper. In the full consultation paper (which was aimed mainly at the technical or legal audience), I asked two specific questions on the issues in relation to the process and recording of sentence where a statutory aggravation was admitted or proved.

Consistent recording of the aggravation

3.59. From those who supported the concept of a hate crime there was very strong support in favour of clear and consistent recording of the aggravation. The following reasons were given. The requirement to record enhanced the transparency of the justice system. It showed that hate crime was being taken seriously; it would increase confidence in the justice system; and encourage reporting. It was also important to ensure that records were kept so that the offending appeared on the criminal record of the perpetrator. Good records allowed for monitoring the impact of legislation and the maintenance of statistics. This informed the development of effective policy and practice.

3.60. I strongly agree with these responses. It is fundamental to the scheme that the sentencing judge takes the aggravation into account in determining the appropriate sentence. It is also essential that, first, the sentencer states in court that the aggravation has been taken into account, in order that all may be aware of this; and, secondly, there is consistent compliance with the requirement to record the conviction in a way that shows that the offence is aggravated so that that will appear on the schedule of previous convictions and can be taken into account in any future case. I consider these requirements to be crucial to the effective operation of the statutory aggravation approach. In addition, good recording allows for the maintenance of statistics and monitoring the impact of legislation.

Recording difference in sentence

3.61. The consultation paper also asked whether it was necessary to maintain the rule that the sentencing judge should state the difference between the sentence and what it would have been, but for the aggravation. Only 18 organisations responded to this question, and 28 individuals. The majority of those organisations which responded favoured this rule while about one third of individuals did so. Those in favour of it considered that it promoted understanding of the law and increased transparency of the judicial process. It encouraged consistency in sentencing and allowed for the monitoring of sentencing practices. It sent out a message to victims and society that the crime was being taken seriously. It might have a deterrent function.

3.62. Others, including some legal bodies, argued that sentencing was already a complex process and that disaggregating sentences was not always realistic or helpful and potentially left sentences open to criticism or appeal. This reflected some disquiet about this requirement which had been expressed to the review at an earlier stage by some sheriffs who explained that a sentence is often being adjusted in a number of different directions take account of, for example, a guilty plea or backdating. They argued that, particularly where other such factors are at play or where the aggravation is at a relatively low level, the overall difference in sentence might be small. Determining a sentence was ultimately a matter of judgement and an overly mathematical approach was not consistent with that. It was not therefore clear what is to be gained from spelling out the precise difference in sentence, and the process in doing so might become misunderstood. Separately, some sheriffs indicated that there was an absence of guidance on the appropriate amount by which to increase the sentence.

3.63. I consider that the first three requirements listed in paragraph 3.57, namely, to take the aggravation into account in determining the appropriate sentence, to state on conviction that the offence was aggravated in relation to the particular characteristic, and to record the conviction in a way that shows that the offence was so aggravated, are the vital requirements to promote understanding of the law, transparency of the judicial process and consistency in sentencing. It is these requirements that send a message and permit meaningful records to be kept.

3.64. I recognise that the introduction of the requirement to state the difference in sentence was well-intentioned. However, to be effective such provisions must be practical and workable. I consider that there is force in the arguments advanced by those operating the scheme that the requirement to state the difference in sentence expressly gives rise to difficulty. Sentencing is a matter of judgement and the sentencer requires to take into account a range of considerations in assessing the appropriate sentence in a particular case. Some factors may point in different directions. In some cases the difference in sentence attributable to the aggravation may lead to disappointment and disillusionment on the part of the victim. I conclude that this requirement is over-complicated and does not serve a clear purpose so should be repealed. There may of course be circumstances in which a sentencer chooses to set out this detail, but that should be a decision for them in the individual case rather than a blanket requirement.

3.65. It is also worth noting the role of the Scottish Sentencing Council here. The Scottish Sentencing Council was established in October 2015 as an independent advisory body. Its statutory objectives are to promote consistency in sentencing, assist the development of sentencing policy and to promote greater awareness and understanding of sentencing. It may do this through preparing sentencing guidelines, conducting research and providing information and general advice and guidance about sentencing matters.

3.66. The establishment of the Scottish Sentencing Council reflects a shift in the way that sentencing is dealt with in Scotland. This reinforces my view that the requirement to state expressly what the difference in sentence has been in a particular case is not a matter which is necessary to cover in legislation. In relation to the representations that there was an absence of guidance in relation to the level of sentence in aggravated cases, I consider that they raise an issue that should appropriately be considered by the Scottish Sentencing Council.

Recommendation 8

Where a statutory aggravation is proved, the court should be required to state that fact expressly and it should be included in the record of conviction. The aggravation should be taken into account in determining sentence.

There should no longer be an express requirement to state the extent to which the sentence imposed is different from what would have been imposed in the absence of the aggravation.