Independent review of hate crime legislation in Scotland: final report

Chapter 4 - Additional characteristics

4.1. This chapter considers whether new categories of hate crime should be created in relation to groups or identity characteristics which are not expressly covered in the current suite of hate crime laws. Part one of the chapter sets out the general approach that I have taken to this question, including the way I identified potential new groups, key issues that arose from the consultation and the principles which I have applied. Parts two and three set out my specific analysis and conclusions in relation to the two areas where I am recommending that new categories of hate crime be created: gender and age. Part four sets out my conclusions in relation to those groups where I think no change is necessary: for some groups, this is because I have concluded that the existing legislation already applies; for others, it is because I have concluded that it would be inappropriate to treat the conduct in question as 'hate crime'.

Part One: General Approach

4.2. In chapter 2 of this report, I have set out why I consider it important that the criminal law should be capable of dealing with hate crime in a way which is distinct from offending which does not have an element of hostility related to identity. There are three broad reasons for this:

• recognition of the additional harm which hate crime offending causes to the victim, others who share the protected characteristic and wider society;
• the important symbolic message which the law can send;
• the practical benefits which arise from having a clear set of rules and procedures within the criminal justice system to deal with hate crime.

4.3. I have found it important to keep these ideas in mind when considering whether any new form of hate crime legislation is appropriate to cover offending relating to a group or identity characteristic which is not already covered by existing laws. I set out my analysis in relation to the different characteristics in the separate parts of this chapter. However, in broad terms, I have looked at whether there is evidence that hostility in relation to the characteristic is manifested through offending behaviour, whether the characteristic and form of hostility are such that society (through Parliament) would wish to make specific provision, and what the practical consequence of such a provision would be.

4.4. I was asked by the Scottish Ministers to consider whether there should be new statutory aggravations created in hate crime legislation. The terms of reference specifically mentioned the personal characteristics of age and gender. Various other characteristics were suggested during the initial information gathering phase of the review and through my questionnaire. I also identified a number of groups or identity characteristics which are covered by hate crime legislation in other jurisdictions, as outlined in chapter 5 of the Academic Report.

4.5. In the consultation document, I therefore invited views on whether legislation was needed to deal with offences involving malice and ill-will (or hostility) based on a number of characteristics. These were age, gender, immigration status, socio-economic status and membership of the travelling community. The consultation question also allowed respondents to indicate any other groups or identity characteristics which they considered should be covered and why.

4.6. The consultation responses generally focused on the likely impact of having legislation in relation to each individual characteristic, and I discuss these responses further in the relevant part of the chapter below. However, there was also a clear theme in some responses that there should be no new hate crime legislation because all victims of crime should have equal protection under the law and that it was inappropriate to give some groups greater protection than others. A number of responses considered that other routes would be more successful in changing attitudes in society and encouraging respect between people.

4.7. I recognise the underlying sentiment expressed in these responses. I do not think that hate crime legislation is about giving some individuals greater or lesser 'protection' than others in comparable situations, simply because of an identity characteristic. If a new offence were to be created which would mean that a particular form of behaviour is lawful when committed against one person and unlawful when committed against another, that would require very careful scrutiny. In my view, such a situation could only be justified if there was something about the latter set of circumstances which is sufficiently serious to warrant criminal sanction.

4.8. However, I think it is important to emphasise here that there is already a suite of offences in Scots law which may be relevant where a person commits abusive, threatening or violent behaviour against another, regardless of the motivation for that behaviour. I have mentioned the main relevant offences in annex 3, which sets out a summary of the current law. Some of these are common law offences (such as breach of the peace or assault) which have been developed by the courts over a long period; others are more recent statutory offences which have been created by Parliament to prohibit particular conduct (for example, threatening or abusive behaviour contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 ( CJLSA)). As explained in chapter 3, any statutory aggravations apply in conjunction with those existing offences to recognise the hate crime element. They do not make any behaviour criminal if it was not already criminal under the existing law. They simply mean that, where the offending behaviour is motivated by, or demonstrates, hostility, it is 'labelled' as hate crime and the aggravation will be taken into account when the court determines the appropriate sentence.

Part Two: Gender

4.9. This part considers whether offending which involves hostility or malice and ill-will related to gender should be covered by new hate crime legislation. This issue was considered by the working group on hate crime in 2004, and by the Scottish Parliament when considering the Offences (Aggravation by Prejudice) Bill in 2008. On each occasion, it was concluded that hate crime legislation was not the best route to tackle gender-based offending at that time, but that this should be kept under review. I have therefore considered the evidence and arguments which have emerged in the intervening period. I have noted two significant changes. The first is the increased prevalence of online abuse related to gender. The second is a significant cultural shift in the sense that women are not now prepared to tolerate sexual harassment that might have been put up with in the past.

4.10. It is important to understand that, in the context of this chapter, the practical impact of gender-based offending falls almost exclusively on women. This is reflected in the discussion and examples set out below.

4.11. I am aware that existing discrimination legislation refers to discrimination based on 'sex', but that reporting obligations on the differences in the pay of male and female employees refer to the 'gender pay gap'. I have used the term 'gender' rather than 'sex' throughout this part, because that is the term used by most (though not all) organisations and consultation respondents.

4.12. The term 'misogyny' is used a lot in the context of the debate about offending based on gender. This is a term which has changed in usage over time. In its second edition (1989), the Shorter Oxford English Dictionary defined misogyny as "hatred of women". This was updated in the third edition (2002) to "hatred or dislike of, or prejudice against women." Many women's organisations incorporate a sense of imbalance of power when articulating what is meant by misogyny. For example, Engender define it as "systems or actions that deliberately subordinate women, and reflect the actor's understanding that women are not their equals." Some people treat the terms 'misogyny' and 'sexism' as synonymous, while others would argue that misogyny is often more targeted or negative and used to assert male dominance over women. It was apparent to me in the course of this review that different people use the term misogyny to mean slightly different things, and I suspect that its meaning may continue to evolve over time. I have used this language in the remainder of this part to reflect what I have heard, but where it is used in debate and discussion I would urge caution in considering exactly what is meant in the particular context.

Reponses to the Consultation Paper

4.13. Although the consultation responses did not demonstrate any clear consensus on the general principle of extending hate crime legislation, there was strong support among both individual and organisational respondents for some kind of provision relating to gender or misogyny.

4.14. The broad reasons given in support of such a provision are a recognition that women are routinely subjected to verbal and physical harassment as a result of their gender, whether in the workplace, education settings, in public places or online. In recent months, the revelations about sexual intimidation by some men in positions of power (film producers, politicians etc) have led to high profile campaigns to encourage women to recognise and challenge incidents of sexual harassment. The #metoo hashtag has been used by women and men on social media to highlight examples of sexual assault and harassment in an attempt to demonstrate its magnitude.

4.15. Respondents expressed concern about the level of online abuse, including a sense that it is particularly directed against women who are prepared to enter into public debate. The Law Society referred to abuse against Caroline Criado-Perez (where messages were re-tweeted threatening to sexually assault her after she backed the Jane Austen banknote campaign) and Stella Creasy MP (who campaigned for women from Northern Ireland to be able to access abortions through the English NHS and received a death threat telling her 'hopefully she will die like Jo Cox').

4.16. There is a strong sense that online abuse can be used as a mechanism to express and incite prejudice and hatred on a number of grounds, and that this requires some renewed focus to change behaviour. Online abuse is discussed more fully in chapter 6. Given the extent to which people now interact and conduct their business online, the disruption of an individual's ability to function online as a result of abuse has a real social and economic impact. The issue is certainly not confined to prejudice on grounds of gender, but respondents identified that it manifests itself particularly in relation to women.

4.17. Many respondents noted that misogynistic behaviour is normalised and reluctantly accepted. As a result, sexist bullying and sexual harassment are very likely to be under-reported because women who are subject to them do not see them as significant enough to be taken seriously by the authorities.

4.18. Respondents expressed a concern that gender-hostility crimes affect women collectively, in addition to the impact they have on the individual woman targeted in a particular instance. They can result in women feeling that they have to change their behaviour or act in a particular way. Respondents argued that the acceptance of attitudes that lead to low-level expressions of misogyny against women forms part of a continuum leading to more serious incidents of violence against women and girls.

Other developments

4.19. I have also taken into account a number of further developments that have occurred since the publication of my consultation paper.

4.20. The Fawcett Society published a comprehensive and authoritative Sex Discrimination Law Review in January 2018 ^[17] . That Review included discussion of effective means to tackle violence against women and girls. It considered the practical steps that have been taken by some police forces in England to record misogyny as a hate crime and noted this was thought to raise awareness of the seriousness of these incidents and encourage women to report them. These exercises did not change the law, but the intention was to enable the police to gather better intelligence, to disrupt activities and perpetrators, improve risk management and support the women affected. The long-term aim is to nudge people towards a culture shift and to reframe misogynist behaviour as socially undesirable. The Sex Discrimination Law Review recommended that this approach should be adopted more widely and that the law should be changed to require misogyny to be considered as a hate crime within the legal framework. I shall explore this in more detail later in the chapter.

4.21. In March 2018, Amnesty International published '#ToxicTwitter' ^[18] , which set out qualitative and quantitative research it had carried out over 16 months about women's experiences on social media platforms including the scale, nature and impact of violence and abuse directed towards women on Twitter. The research focused on the UK and USA and included detailed case studies in relation to Scottish politicians including Nicola Sturgeon, Ruth Davidson and Kezia Dugdale. In her interview with Amnesty International, Nicola Sturgeon noted the likely impact of this abuse on others:

What makes me angry when I read abuse about me is that I worry that it puts the next generation of young women off politics. So, I feel a responsibility to challenge it, not so much on my own behalf, but on behalf of young women out there who are looking at what people say about me and thinking, "I don't want to ever be in that position".

4.22. I noted the provisions in Chapter V of the Istanbul Convention ^[19] which set out forms of gender-based violence which are required to be criminalised under that Convention. The United Kingdom has signed but not yet ratified the Convention. As a result of a private member's Bill brought forward by Dr Eilidh Whiteford MP, the UK Government is required to lay an annual report before the Westminster Parliament which sets out the administrative and legislative measures being taken that would allow the requirements of the Convention to be met. The first such report was laid in November 2017 ^[20] . In relation to Scotland, the report set out a wide range of measures under Equally Safe, which is the strategy and delivery plan developed by the Scottish Government, COSLA and partners to prevent and eradicate all forms of violence against women and girls. It also noted the range of offences which exist in Scots law to tackle crimes of violence against women and girls.

4.23. I followed with interest the evidence given to the Westminster Women and Equalities Select Committee in its inquiry into sexual harassment of women and girls in public places, and the Westminster Hall debate on misogyny as a hate crime which took place on 7 March 2018. Insofar as these considered the law, they tended to be focused on the law of England and Wales rather than Scotland. However, I found the practical examples given useful in considering how Scots law could or should apply in equivalent circumstances.

Other jurisdictions

4.24. Chapter 5 of the Academic Report lists the characteristics that are 'protected' in hate crime legislation in the jurisdictions which were studied. Of those characteristics that are not currently protected in Scots law, the two that are most commonly protected in other jurisdictions are age and sex/gender.

4.25. Specific provisions about offending based on prejudice/hatred related to sex or gender are found in Canada; South Africa (draft Bill) and the following states of the USA: District of Columbia; Iowa, Maine, Vermont, West Virginia; Louisiana; Maryland.

4.26. In addition, the sentencing aggravation provisions in New Zealand do not list sex or gender expressly, but cover any other group with an 'enduring common characteristic', and the report notes a case where the judge stated that the offender's 'hostility to women' was an aggravating factor in sentencing ^[21] .

4.27. None of the provisions noted in the Academic Report relate specifically to misogyny rather than to gender/sex.

Need for action

4.28. I am persuaded that there are patterns of offending which relate particularly to the victim's gender and which should be addressed through legislation which might be seen as falling under the hate crime umbrella.

4.29. However, I agree with respondents such as Engender who highlight that this is a complicated area: there is a wide range of views about how gender hostility or misogyny is to be identified and dealt with. It was interesting, for example, that some consultation respondents argued that a hate crime provision should be drafted in terms of 'misogyny' rather than 'gender' to ensure that it did not unintentionally lead to all violence against women being considered a hate crime. By contrast, other respondents argued that all violence against women is rooted in misogyny and no distinctions should be drawn. These two groups of respondents therefore appeared to have very different views about what would be the practical consequence of defining offending behaviour by reference to misogyny. As I have noted above, this is a topic where the language used can unintentionally mask what is meant, as similar language is used by different people to mean different things.

4.30. I have therefore considered carefully how the criminal law currently addresses types of offending which particularly affect women, where there might be gaps based on the expectations expressed in the consultation responses, political debates and wider literature, and how those gaps should best be dealt with.

4.31. The Istanbul Convention defines gender-based violence as "violence which is directed against a woman because she is a woman or that affects women disproportionately". Over recent years, the Scottish Parliament has passed a large amount of criminal legislation which can be used to tackle such violence:

• Prohibition of Female Genital Mutilation (Scotland) Act 2005;
• Sexual Offences (Scotland) Act 2009, which sets out a modern suite of sexual offences including rape, sexual assault, voyeurism and indecent sexual communications;
• Forced Marriages etc (Protection and Jurisdiction) (Scotland) Act 2011;
• Abusive Behaviour and Sexual Harm (Scotland) Act 2016, section 2 of which deals with the so-called 'revenge porn' offence of disclosing or threatening to disclose an intimate photograph or film;
• Domestic Abuse (Scotland) Act 2018, which creates a new offence of abusive behaviour towards a partner or ex-partner.

4.32. This suite of offences appears to work effectively. They are kept under review in terms of the Scottish Government's Equally Safe strategy, and have been amended and updated as necessary. For example, the offence of voyeurism in section 9 of the Sexual Offences (Scotland) Act 2009 was specifically amended in 2010 to deal with the phenomenon of 'upskirting'.

4.33. The arguments generally made in favour of hate crime legislation would appear to be less relevant in the context of this type of focused offence. The nature of the conduct is clear from the offence itself and so an aggravation is not necessary to provide clarity in the offender's record or inform any subsequent criminal justice intervention. The offences implicitly involve the concept of gender, are already treated very seriously by society so the penalties imposed reflect this. It might therefore be concluded that there is no need to send an additional 'message' through hate crime legislation that the conduct is unacceptable.

4.34. Some behaviours which were highlighted in consultation responses are undoubtedly sexist or misogynistic, but involve a relatively limited degree of harm which means that a specific criminal sanction would be inappropriate (and probably also ineffective). This might include the use of sexist language which does not in fact cause fear or alarm, or most workplace discrimination. I fully recognise and agree that these are behaviours which need to be tackled in order to ensure true gender equality. However, there is a range of responses (both legal and non-legal) which may be more appropriate to deal with such behaviours, as described in chapter 2 (underlying principles). Criminalising low-level misogynistic behaviour is not a proportionate response.

4.35. By contrast, the evidence demonstrates that there is a very significant problem of abuse (both online and offline), assault and harassment which is directed at women for a reason related to their gender, and which could be dealt with more effectively by the criminal law than it is at present. Such behaviour could generally be prosecuted already under existing offences, such as section 38 (threatening or abusive behaviour) or 39 (stalking) of the Criminal Justice and Licensing (Scotland) Act 2010, or section 127 of the Communications Act (misuse of a public electronic communications network). However, the scale of the existing behaviour has led me to conclude that an additional response is necessary. By categorising this behaviour as hate crime, I consider that we would achieve certain important results:

• It would make it more culturally acceptable to object to the behaviour – victims would have more confidence that it will be taken seriously by the criminal justice system (whether the police, prosecutors or the courts).
• It would recognise the additional harm caused to the individuals involved and others who identify with them.
• It would have a symbolic value – giving security to community and 'send a message'.
• It would allow for record keeping, the collection of data, and a targeted response to offenders.

Discussion

Lessons learned from police practice in England

4.36. A number of consultation respondents and the Fawcett Society Sex Discrimination Law Review referred to the exercises being conducted by certain police forces in England to flag misogynistic or gender-hostility incidents as hate crimes. I have considered the information available in relation to these exercises. To date, four forces have adopted new recording processes. Nottinghamshire and North Yorkshire forces focus specifically on misogyny; Northamptonshire and Avon and Somerset record events based on gender. In practice, the nature of the incidents recorded under both approaches are the same. They have generally been concerned with public order offences, harassment and stalking.

4.37. These projects have involved no change in the criminal law. Police officers have flagged incidents as involving either misogyny or gender hostility, but prosecutors and the courts continue to deal with each case reported to them as they would have done previously. The projects are therefore different from the statutory aggravation approach being advocated by a number of respondents to my consultation. However, they may be used to obtain an insight into what the consequences of creating a new statutory aggravation might be.

4.38. No formal evaluation has yet been completed in relation to the projects ^[22] . The data from the Nottinghamshire pilot shows that there have been approximately 170 incidents reported to the police over 18 months, of which slightly under half were identified as crimes. There have been very few arrests or charges, and this is thought likely to be because most incidents involve strangers and the police therefore find it difficult to identify specific offenders. Notwithstanding that, the satisfaction rate amongst complainers is apparently relatively high. There are anecdotal reports that complainers feel that the behaviour in question is now taken more seriously by the police and it is possible to do something about it rather than simply having to accept it.

Aggravation building on existing baseline offences

4.39. Most of the consultation responses which advocated the inclusion of a new provision related to misogyny or gender hostility argued that this should be through the creation of a new statutory aggravation based on the existing model used for race, religion, disability, sexual orientation and transgender identity.

4.40. I recognise the arguments that it may be difficult to identify what amounts to hostility based on gender, and accept that there will be a difference of opinion on this. Some will argue that any offending which deliberately subordinates women or seeks to exert power over them implies some kind of hostility whereas others disagree. As we have seen in other areas of hate crime, there will be cases where individuals perceive behaviour to have been motivated by or demonstrated gender hostility but it is not possible to prosecute with an aggravation because there is insufficient evidence to support that.

4.41. I considered whether a statutory aggravation which applied where an offence had taken place 'by reason of' the gender of the victim would be more appropriate. The concept of a 'by reason of' aggravation is set out in detail at paragraph 3.14 to 3.27 (existing statutory aggravations). Such an approach might catch conduct which is motivated by stereotypical attitudes towards women, such as a belief that women should not hold certain positions of power. However, for the reasons set out in the previous chapter, I have concluded that this approach takes the focus too far away from what is generally understood by society to be hate crime. I suspect that it may also be difficult to find appropriate evidence to support a hypothesis that a particular offence occurred because of the victim's gender in many cases. On balance, I think that an approach which is consistent with the other existing hostility aggravations is more appropriate and will be more easily understood by practitioners and the public. It would have a significant advantage in cases where hostility is based on more than one protected characteristic – for example, an assault on a hijab-wearing Muslim woman – because the sheriff or jury would be asked to apply the same test when deciding whether the offence involved hostility on both religious and gender grounds.

4.42. I consider that the identification of hostility based on gender can be dealt with through the careful consideration of the evidence available in each individual case, the development of training and awareness materials, and learning from the experience of others. I am aware that Nottinghamshire police developed a comprehensive package of training materials with the involvement of local stakeholders, and their experience suggests that the very act of putting together the policy, training those who will apply it, and raising awareness with the public can have a positive effect in tackling behaviour and expectations, regardless of the number of successful prosecutions. I would propose that it be left to the prosecutor's discretion whether it is appropriate to add an aggravation to any offence at the point that it is charged, including a sexual offence.

4.43. I have carefully considered the arguments whether an aggravation should apply to all forms of gender hostility, or whether it should be 'one-way' and only cover hostility or malice and ill-will towards women. Although I agree that the essence of the conduct which we are seeking to cover is usually against women, it is not inconceivable that there could be hostility against a man (or non-binary person) based on their gender. I have some concern that an approach which focused only on hostility towards women would risk stereotyping (all) men as perpetrators and (all) women as victims, which I do not consider to be an accurate or helpful message. A human rights-based approach suggests that having a consistent approach which is capable of applying in equivalent cases, regardless of the sex of the victim, is better. Some consultation responses argue that it is nonsensical to have a provision based on gender/sex because that would then cover everyone in the population and make any offence a potential hate crime. It is important to be clear here that it is not just a question of the identity of the victim: there must also be evidence of hostility based on gender. Having a provision which is capable of applying to everyone and not just to women should help to reinforce that point.

4.44. Some stakeholders have indicated concerns that there could be vexatious claims, but I do not agree with this; similar concerns were expressed about whether heterosexual people might raise unfounded complaints under the sexual orientation provisions introduced in 2009, but there has been no evidence that this has occurred. There would always need to be an underlying baseline offence for a prosecution with a gender aggravation to proceed. If a complaint is genuinely vexatious and there is no element of gender-based hostility, then this will not happen.

Standalone offence – misogynistic harassment

4.45. The alternative approach, proposed by Engender (supported by Scottish Women's Aid and Rape Crisis Scotland), is that the problem would be better tackled through a new standalone offence to tackle misogynistic harassment and abuse. In this context, they use the term 'harassment' to cover a wide range of gendered constraints on women's freedom. Engender argued that there is insufficient data at present to say precisely how the offence should operate, but that this should be developed through a participatory process of relevant organisations, similar to that used to develop the concept of coercive control in the recent Domestic Abuse (Scotland) Act 2018. Such a process would take a number of years.

4.46. Engender expressed concern about the capacity of police and prosecutors to recognise and respond to gender-based hate crime, and therefore considered it would be better to take time to create something specific which identifies the particular behaviour in question rather than attempting to apply some kind of statutory aggravation which would not be well understood. Engender did not want there to be any distinction in how the system categorises crimes such as rape or domestic abuse (which are by their nature often inflected with misogyny) are treated and other general offences with a misogynistic element.

4.47. I am grateful for the thorough and thoughtful way in which these proposals were advanced, but am not convinced that they are the best way to tackle the problem of criminal misogynistic harassment.

4.48. In general terms, I think the clearest and most effective way to mark out hate crime is a scheme involving baseline offences and statutory aggravations which reflect identity hostility. That is the underlying philosophy which I have applied throughout the scheme which I am recommending. I would depart from that approach if I felt that it was necessary in order to achieve effective recognition of gender-based hate crime. However, based on the evidence and arguments which I have heard, I do not think there is any real gap in relation to patterns of conduct against women which ought to be criminal but are not. Any new standalone offence would therefore have a considerable cross-over with other existing offences, which risks causing confusion and undermining the aim of collecting reliable data. I understand the concerns which have been voiced about the way that a statutory aggravation might work but, for the reasons set out at paragraph 4.42, I consider that such concerns can be managed through appropriate implementation measures. I do not think the concerns warrant taking a materially different approach to gender when compared to any other protected characteristic.

4.49. I also have some doubts about whether a collaborative, participatory approach could result in meaningful change within a realistic time frame. I consider that there is currently some momentum and political will to take renewed action in relation to offending involving gender hostility, and there is a risk that would be lost.

Conclusion

4.50. I have considered the alternative options, and am recommending a new statutory aggravation based on gender hostility, following the pattern used in the existing statutory aggravations for race, religion, disability, sexual orientation and transgender identity. Where an offence is committed, and it is proved that the offence was motivated by hostility based on gender, or the offender demonstrates hostility towards the victim based on gender during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by gender hostility. The court would be required to state that fact on conviction and take it into account when sentencing.

Recommendation 9

There should be a new statutory aggravation based on gender hostility.

Where an offence is committed, and it is proved that the offence was motivated by hostility based on gender, or the offender demonstrates hostility towards the victim based on gender during, or immediately before or after, the commission of the offence, it will be recorded as aggravated by gender hostility. The court would be required to state that fact on conviction and take it into account when sentencing.

Part Three: Age

Introduction

4.51. In this part of the chapter, I examine whether age should be included as a protected characteristic in the suite of hate crimes. This raises issues both in relation to old-age and youth.

The issues

The elderly

4.52. There is clearly considerable support for some form of recognition that offences against the elderly do constitute a type of offence which the criminal law should mark in a particular way. This emerged from my meetings with Age Scotland and a meeting which I attended of the Scottish Older People's Assembly ( SOPA), as well as from responses to the consultation paper. The difficulty which emerges from all these sources is that, although some offences committed against the elderly are motivated by, or demonstrate, hostility, the majority are committed because of the frailty and vulnerability of the elderly victims.

4.53. The UK-wide charity Action on Elder Abuse has campaigned for a new offence of 'elder abuse' since June 2016. In February 2017, it conducted a poll of 3,183 people across the UK to assess attitudes to making elder abuse a hate crime. Almost 95% of respondents considered that the abuse of older people should be an aggravated offence similar to hate crimes based on race, religion or disability. The survey also showed that 95% of respondents agreed or strongly agreed that older people are specifically targeted for abuse due to their perceived physical frailty or mental vulnerability.

Responses to Consultation Paper: the elderly

4.54. In their response to the consultation paper Action on Elder Abuse noted that in relation to crimes such as theft, fraud or assault (and many more), older people were often specifically targeted due to their actual or perceived vulnerability. This might be based on physical frailty, mental capacity, memory difficulties, loneliness and isolation, or dependency on others for basic care needs. While in some cases older people may experience malice or ill-will on the basis of their age, the vast majority of crimes against older people were driven by the perpetrator's perception of the victim's vulnerability due to their age.

4.55. Action on Elder Abuse indicated that their preference would be for elder abuse to be a standalone offence. They contended that this would send a stronger message to perpetrators about the seriousness of such crimes and that the concept of a separate offence would be an easier concept for the public to grasp. They went on, however, to state that as an alternative they believed that the current list of statutory aggravations should be extended to include old age. Recognising that it might not be obvious that crime driven by the perpetrator's perception of the victim's vulnerability due to their age was a hate crime, they suggested that consideration should be given to an alternative name for the offence. They suggested possible titles: 'targeted crime', 'motivated crime', or 'prejudicial crime' with 'age' or 'old age' being included as a specific aggravating factor.

4.56. They went on to submit that while crimes against older people which are committed due to the victim's perceived vulnerability comprise a much bigger problem than crimes motivated by hatred or prejudice due to the person's age, they were nevertheless aware that the latter type of crime can also be an issue for many older people. This might be due to perceptions that older people receive more state support (including financial support) than younger people, generational hostility or disrespect towards older people. They often received calls to their Helpline regarding verbal abuse, harassment or general anti-social behaviour from younger people, with many older people telling the charity that they believe they are being targeted because of their age.

4.57. A number of other organisations noted that many crimes committed against the elderly were committed because of their perceived vulnerability and that that should be the basis for an aggravation. Police Scotland observed:

If one adopts the working definition's reference to 'selection of the victim on the basis of a particular feature', then crimes that target elderly people can be considered a form of ill-will or malice towards elderly people.

COPFS noted that:

Many stakeholder groups make compelling arguments in favour of creating legislation to deal with crimes that specifically target older people, such as bogus workmen, breach of financial trust, neglect in care homes or any behaviour that dehumanises or shows complete disregard for the health and wellbeing of the elderly – essentially a legal recognition of 'elder abuse'.

A number of individual respondents supported an extension in respect of old age.

4.58. Other respondents opposed adding old age as a protected characteristic. Some, including City of Edinburgh Council, the Faculty of Advocates, the Law Society of Scotland and the Glasgow Bar Association, pointed out that the existing law was robust enough to deal with offences committed because of the perceived vulnerability of the elderly. Sentencers could take the vulnerability into account in the sentencing process. Others, such as CRER, suggested that it might be better to create a vulnerability related aggravation separate from the offences motivated by malice and ill-will.

Children and young people

4.59. The Equalities and Human Rights committee of the Scottish Parliament ( EHRiC) and the Equalities and Human Rights committee of the Scottish Youth Parliament ( EQU) submitted a joint response to the consultation paper. In July 2017 EHRiC published a report of an inquiry into human rights of children and young people in Scotland, entitled It's Not Cool to be Cruel: Prejudice-based bullying and harassment of children and young people in schools ^[23] . The report, which was endorsed by EQU, identified a major issue of concern as being the unrecognised and unrecorded level of hate crime which seemed to be occurring in the school environment in Scotland. The report highlighted numerous incidents of racism, sexism, disability prejudice, religious and ethnic prejudice, homophobic bullying, hate speech, and physical and sexual harassment in schools. These appeared equally widespread in both the physical and the digital school environment. The committee expressed concern that several of the cases which had been reported to the police were not being recognised as a hate crime and were not being recorded. The report recommended that there should be better training for those working in schools to deal with bullying and encourage reporting cases to the police. There should be clarity for all involved in the education system in relation to hate crimes and sexual offences.

4.60. The consultation paper asked whether any change in the criminal law was required to ensure that there was clarity about when bullying behaviour-based prejudice became a hate crime. A range of views was expressed. Some respondents pointed out that 'bullying' is commonly used to refer to a very wide range of behaviours: from physical violence and damage to property at one end of the scale, to exclusion from social activities at the other. Some believed that bullying behaviour-based prejudice was always wrong and should be seen and treated as a hate crime. Some respondents expressed concern that any legislative response should prevent the unnecessary criminalisation of young people. Dealing with hate crime by children required a multi-agency response. The focus should be on diversionary and behavioural change programmes in order to avoid putting children and young people through the criminal justice system.

4.61. In their response, Together (Scottish Alliance for Children's Rights) stated that they had not been made aware of offences involving malice or ill-will based solely on the victim's youth. All issues regarding hate crime reported to them by members had related to children who possessed another characteristic – such as characteristics of race, religion, sexuality, disability or transgender identity. They added that this was not to suggest that no crimes were committed against children due to age-based prejudice, but simply that no such offences had been reported to them.

4.62. Young people who took part in a workshop involving Young Scot, Youthlink Scotland and the Scottish Youth Parliament expressed a feeling that young people were treated differently because of their young age, whether it was that they were not taken seriously, paid less well or treated with suspicion. They felt stereotyped by their young age and pre-judged for negative behaviour expected of them as young people. They give as an example a situation where young people met to socialise as a group and an assumption was made that they would cause trouble.

Other jurisdictions

4.63. The Academic Report noted that a number of other jurisdictions include age as a protected characteristic. These include New South Wales, Canada, New Zealand, District of Columbia, Florida, Iowa, Louisiana and Vermont. Of these, only Florida specifically refers to 'advanced age'.

Conclusions

4.64. As noted, I found considerable support for some form of recognition that offences against the elderly do constitute a type of offence which the criminal law should mark in a particular way. There is, however, also a recognition that while some offences committed against the elderly reflect hostility or malice and ill-will, and could therefore fit the current definition of hate crime in the Scottish legislation, offences committed on the basis of perceived vulnerability do not meet the thresholds based on hostility. In chapter 3 I examined the case for the introduction of a third threshold as a result of 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 came to the view, however, that this approach would take the focus too far away from what is generally understood by society to be hate crime. I also considered that it might be difficult to find appropriate evidence that there was an intention to select the victim because of vulnerability due to old age.

4.65. As I noted in relation to gender, in general terms, I think the clearest and most effective way to mark out hate crime is a scheme involving baseline offences and statutory aggravations which reflect identity hostility. That is the underlying philosophy which I have applied throughout the scheme which I am recommending. I would depart from that approach if I felt that it was necessary in order to achieve effective recognition of age-based hate crime. However, based on the evidence and arguments which I have heard, I do not think there is any real gap in relation to patterns of conduct against the elderly which ought to be criminal but are not. Rather, the desire is to mark the criminal behaviour in a particular way. Just as in relation to gender, any new standalone offence would therefore have a considerable cross-over with other existing offences, which risks causing confusion and undermining the aim of collecting reliable data.

4.66. I consider that there is sufficient evidence of hostility-based offences against the elderly, particularly in the light of the information provided by Action for Elder Abuse, to include age as a protected characteristic based on the current model of hostility.

4.67. The main issue that emerged in relation to youth is bullying. That is a matter for very real concern. Having considered the report prepared by EHRiC and the responses to the consultation paper on this issue, I agree with the proposition that bullying covers a range of behaviour and can amount to hate crime. I do not, however, consider that any change in the law is required. It seems to me that the problem of bullying raises issues of policy and implementation of policy which are outwith the remit of my review. I have no doubt that it is an issue which the Scottish Government takes extremely seriously.

4.68. The responses did not identify offences being committed against young people because they are young people. The issues regarding hate crime were in relation to children who came within one of the current protected characteristics. That said, while there is little evidence that there is a problem of hostility against youth in and of itself, it is conceivable that such behaviour could occur.

4.69. While I would expect, therefore, that most hostility-based offences based on age would be committed against elderly persons, I consider that it is appropriate to adopt an approach where a protected characteristic of age generally is introduced. Whether a particular offence is motivated by hostility in relation to age, or in the course of an offence hostility to age is demonstrated, would be a matter for consideration on a case-by-case basis.

4.70. I recognise, however, that this approach is likely to capture a relatively small proportion of the offences committed against elderly persons. I am conscious of the strength of feeling supporting the introduction of a statutory aggravation which would capture the bulk of the offences committed against the elderly on the basis of perceived vulnerability. I also note that a proportion of offences committed against disabled persons are based, not on hostility, but on perceived vulnerability. For these reasons, although noting that it would not fall within the hate crime scheme which I envisage, I invite the Scottish Government to consider the option of introducing a wider aggravation that would cover exploitation and vulnerability generally. This would have the advantage of including opportunistic crimes committed against the elderly and disabled persons.

Recommendation 10

There should be a new statutory aggravation based on age hostility.

Where an offence is committed, and it is proved that the offence was motivated by hostility based on age, or the offender demonstrates hostility towards the victim based on age during, or immediately before or after, the commission of the offence, it will be recorded as aggravated by age hostility. The court would be required to state that fact on conviction and take it into account when sentencing.

Recommendation 11

The Scottish Government should consider the introduction, outwith the hate crime scheme, of a general aggravation covering exploitation and vulnerability.

Part Four: Other Groups/Characteristics

4.71. The final part of this chapter sets out the conclusions I have reached in relation to certain groups where I do not think any change to the law is appropriate.

Immigration status

4.72. At present, there is no central collection of data in relation to the immigration status of victims of crime. It is therefore not possible to reach firm conclusions about patterns of offending against those who are refugees, asylum seekers or migrant workers. However, I consider it is likely to be the case that some offending against those who are not British nationals is motivated by hostility relating to their immigration status or involves the demonstration of such hostility. Refugees, asylum seekers and former asylum seekers whose applications have been rejected are often in a particularly vulnerable situation.

4.73. Consultation respondents who commented about immigration status generally agreed that offending involving hostility relating to immigration status should be treated as a hate crime. Some thought that there should be a new and specific provision to deal with this group, while others thought that it would already be covered by the existing racial aggravation provisions.

4.74. I have concluded that offending behaviour which is motivated by hostility relating to immigration status or involves the demonstration of such hostility should be a hate crime. However, I do not think any change in the law is needed to achieve this: such offending should already be treated as racially aggravated under the existing law. The current race aggravation is concerned with malice and ill-will towards a racial group, and racial group is defined by reference to "race, colour, nationality (including citizenship) or ethnic or national origins."

4.75. The House of Lords was asked to consider the equivalent test in the English racially-aggravated offending provisions in the case of R v Rogers ^[24] . Baroness Hale endorsed arguments that a flexible, non-technical approach should be taken to the definition. Taking account of both the language of the definition and the policy intent behind racially-aggravated provisions, she noted: "Whether the group is defined exclusively by reference to what its members are not or inclusively by reference to what they are, the criterion by which the group is defined – nationality or colour – is the same."

4.76. Although the House of Lords judgment relates to an English law provision, I consider it would be persuasive in relation to the interpretation of the current Scots law race aggravation. A person's immigration status is inevitably related to their nationality or national origins, and so hostility based on immigration status amounts to hostility towards a racial group.

Membership of the Gypsy/Traveller community

4.77. The consultation process highlighted evidence of significant discrimination against the Gypsy/Traveller community, often fuelled by negative stereotypes portrayed in the media. Much of the conduct which was described amounts to discrimination which can and should be tackled under the civil law (for example, the refusal by a GP practice to register a new patient; barring from pubs etc.). However, there was also anecdotal evidence of significant criminal conduct against members of the Gypsy/Traveller community.

4.78. During the consultation period, the Traveller Movement published The Last Acceptable Form of Racism? ^[25] , a report documenting the pervasive discrimination and prejudice experienced by Gypsy, Roma and Traveller communities across the UK. This included examples of abuse, physical attacks on individuals and property and online abuse which indicated hostility towards the community.

4.79. Romany gypsies have long been recognised as an ethnic racial group ^[26] , and other more recent court decisions have treated Irish travellers and Scottish Gypsy/Travellers as ethnic groups too ^[27] . While these decisions have been made in relation to the civil law definition of 'race' in the Race Relations Act (the pre-cursor to the Equality Act 2010), I can see no reason why the same analysis would not apply to the criminal legislation. I note also that Gypsy/Traveller was included as a sub-category of 'white' ethnicity in the 2011 census. I am therefore satisfied that such offending behaviour can and should be treated as racially aggravated under the existing race aggravation.

Gaelic speakers

4.80. Some consultation responses considered the extent of discrimination and prejudice against Gaelic speakers. These responses recognised that attitudes towards Gaelic speakers had improved in Scotland, not least as a result of the Gaelic Language (Scotland) Act 2005 and the work of Bòrd na Gàidhlig. However, they also noted that there were fairly common examples in social media and in mainstream print media in which hostility to the language and its speakers is expressed, and that prejudice towards the language and its speakers remains. It was suggested that mockery and criticism of the Gaelic language were not taken as seriously as equivalent statements towards other protected groups would be. The specific examples which were highlighted generally involved debate and disagreement about public spending decisions, but could be expressed in intemperate terms. The evidence put forward highlights some deeply unpleasant behaviour but would not generally appear to reach the threshold of criminal behaviour. In order for a statutory aggravation to attach there requires to be underlying criminal conduct.

4.81. I consider that there is a fairly strong argument that Gaelic speaking Gaels belong to an 'ethnic group' within the meaning of the current race aggravation. That means that, in a case in which hostility towards Gaelic speakers did amount to a criminal offence, COPFS could consider prosecuting the offence as a hate crime with the statutory race aggravation.

4.82. The meaning of the term 'ethnic group' in the Race Relations Act 1976 was considered by the House of Lords in Mandla v Dowel Lee. ^[28] Lord Fraser of Tullybelton stated that an ethnic group must have (a) a long shared history and (b) a cultural tradition of its own, and that it would commonly also have one or more of the following: (c) a common geographical origin; (d) a common language; (e) a common literature; (f) a common religion; (g) be a minority or oppressed or dominant group within a larger community.

4.83. I recognise that there will be some Gaelic speakers who may not consider themselves (or be considered by others) to be members of a Gaelic 'ethnic group' but who use the language in aspects of their daily lives. This might include those who learned the language at school or in adulthood, rather than as their mother tongue. However, as I have noted earlier in this report at recommendation 5, the concept of hostility should not be limited to the cases where the victim does in fact have the relevant protected characteristic. It should also cover cases where the hostility occurs because the victim is presumed to have the characteristic or has an association with those who do. I consider that would very likely be the case in relation to such Gaelic speakers.

4.84. On balance, therefore, I do not think any change in the law is required to ensure that COPFS and the courts could respond appropriately if cases were to arise of criminal offences motivated by or demonstrating hostility towards Gaelic speakers.

Socioeconomic status

4.85. In the consultation document, I asked whether there was a justification for hate crime categories to include socioeconomic status. An Amnesty International UK briefing paper had recommended that such an extension be made, though it had not set out substantive arguments in favour.

4.86. The responses on this point were limited and mixed. Some respondents noted that there was an increasing vilification of people experiencing poverty, and referred to examples of verbal abuse, harassment and physical assaults, particularly against homeless people. The contrary argument was that socioeconomic status is a very difficult concept to define and not an inherent personal characteristic: an individual's socioeconomic status is likely to change over time.

4.87. I am not persuaded that a person's socioeconomic position can be equated with any kind of identity characteristic: it is a matter of fact determined by a number of factors (employment, poverty, security of housing etc.) which will change over time. These factors may well render an individual vulnerable to particular offending patterns, but I think it would stretch the concept of 'hate crime' too far from what is readily understood by society to treat offending based on hostility to these factors as hate crime.

4.88. It seems likely that much offending which affects individuals who are economically disadvantaged is really related to the exploitation of vulnerability rather than hostility. If the Scottish Government takes forward my recommendation 11 to develop a statutory aggravation which applies where the offender exploits vulnerability, that may apply to such offending.

4.89. I also note that other means to tackle discrimination or disadvantage based on socioeconomic status are likely to arise through the implementation of section 1 of the Equality Act 2010, which came into force in Scotland on 1 April 2018. That section imposes a duty on certain public authorities to pay due regard to narrowing inequalities of outcome, caused by socioeconomic disadvantage, when making strategic decisions. The duty is to be known in practice as the 'Fairer Scotland' duty.

4.90. I have therefore concluded that it would not be appropriate to recommend a new statutory aggravation to deal with hostility related to socioeconomic status.

Other groups

4.91. Paragraph 8.44 of the consultation analysis report records a number of further groups which were suggested by consultation respondents to be covered by hate crime legislation.

4.92. Some of these groups are clearly covered by existing legislation so no change is required. These include disabled people, people with non-binary gender identity and Christians.

4.93. The remaining groups are, in my opinion, not appropriate to be covered within a scheme of hate crime legislation. The characteristic which has been highlighted by respondents is often a lifestyle choice, rather than something which forms an inherent part of the individual's identity. For example, reference was made to those who choose not to drink alcohol and to members of alternative sub-cultures (such as goths, emos, punks). I do accept that there have been instances of very serious offending against individuals based on this kind of transient characteristic (notably the murder of Sophie Lancaster in England in 2007 ^[29] , targeted because of her goth appearance). However, this was a very unusual case, and I am of the view that the Scottish courts would be able to pass an appropriate sentence in such a case as a matter of common law.

4.94. Some consultation respondents specifically highlighted groups or characteristics which they argued should not be covered under any hate crime legislation. This was on the basis that the characteristics in question were not desirable to single out, and that Parliament should not be signalling (on society's behalf) that such characteristics are worthy of respect. These arguments were made in relation to paedophiles, drug users and alcoholics.

4.95. I agree that extending hate crime to these characteristics would stretch the concept too far from what is readily understood by society and risk undermining confidence in the scheme. I also consider that the arguments about hate crime causing harm to the wider group which shares the characteristic with the victim or to wider society are much less compelling in the context of characteristics which do not form an inherent part of the individual's identity.

Recommendation 12

I do not consider it necessary to create a statutory aggravation to cover hostility towards any other specific new groups or characteristics.