One Scotland: consultation on current hate crime legislation

Introduction

What type of Scotland do you want to live in?

Hate crime and prejudice threaten community cohesion and have a corrosive impact on Scotland's communities as well as broader society. It is never acceptable and we are committed to tackling it.

A cohesive society is one with a common vision and a sense of belonging for all communities; a society in which the diversity of people's backgrounds, beliefs and circumstances are appreciated and valued, and where similar life opportunities are available to all.

It is through this lens that we are considering the recommendations from Lord Bracadale’s ‘Independent Review of Hate Crime Legislation in Scotland’^[1] in order to inform the modernisation and reform of hate crime legislation in Scotland.

What is hate crime?

Hate crime can be verbal or physical and has hugely damaging effects on the victims, their families and communities, and we all must play our part to challenge it.

In the summary report^[2] accompanying his full report, Lord Bracadale defined hate crime as:

Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice.

Some examples of behaviour that could be taken to court as a hate crime

• Abusive shouting by a person who is annoyed that their neighbour creates a noise when putting their bins out early in the morning. In the heat of the moment the offender makes comments about their neighbour’s sexuality and says he hopes ‘people like you die of Aids’
• Tipping a disabled person out of their wheelchair in the street.
• A murder committed because of someone’s skin colour.
• Vandalism/graffiti on a mosque which says ‘terrorists go home’.

Current hate crime legislation 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 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. These provisions are known as statutory aggravations. The court is currently required to record the statutory aggravation and take it into account when determining an appropriate sentence.

This ensures that levels of hate crime are recorded and it sends a signal that society does not accept this form of conduct. It also reassures victims and their families that the fact an offence was motivated by prejudice has been formally acknowledged and taken into account in sentencing.

In Scotland, the law currently recognises hate crimes as motivated by prejudice for statutory aggravations based on:

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

Prejudice or hostility also lies at the heart of some other offences which are recognised as hate crimes. These are sometimes referred to as standalone hate crime offences and they criminalise behaviour specifically because it is motivated by racial prejudice. Currently, these standalone offences include:

• racially aggravated harassment: section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995,
• stirring up of racial hatred: sections 18 to 22 of the Public Order Act 1986

In the summary report^[3] Lord Bracadale detailed the relevant laws used in the context of hate crime.

Why have hate crime laws?

Lord Bracadale explained in his summary^[4] report that:

Legislation helps recognise the particular impact and harm caused by hate crime

Harm to the victim

• Harm can cause mental distress such as depression, anger, anxiety, trauma
• Harm has a social impact as victims or groups change their behaviour to avoid further victimisation
• May move home or job, avoid public spaces and become socially isolated

Harm to the group the victim belongs to

• Hate crimes remind members that they are potential targets
• Members can be fearful of those with the same identity as the perpetrator

Harm to wider society

• Undermines society’s moral values
• Less tolerant society
• Hatred not recognised or challenged because it becomes the ‘norm’
• May increase social unrest

Lord Bracadale’s explained that:

Hate crime laws make it clear that such behaviour is not acceptable. It sends a message to victims, offenders and wider society that hate crime behaviour is unacceptable and will not be tolerated.

Background on this consultation

In September 2016, a review by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion^[5] was published which included a number of recommendations for the Scottish Government and its partners. These recommendations included:

• the Scottish Government should consider whether the existing criminal law provides sufficient protections for those who may be at risk of hate crime,
• the Scottish Government should lead discussion on the development of clearer terminology and definitions around hate crime, prejudice and community cohesion

This led to the appointment of Lord Bracadale to conduct an Independent Review of Hate Crime Legislation in Scotland. The remit for Lord Bracadale’s review was to consider whether existing hate crime law represents the most effective approach for the justice system to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice.

Lord Bracadale was asked by the Scottish Ministers to consider:

• the current law and consider how well it deals with hate crime behaviour,
• Whether new statutory aggravations should be created for example in relation to age and gender,
• whether the religious statutory aggravation is fit for purpose or should be expanded,
• whether we should make hate crime laws simpler by bringing them all together in one place,
• any issues or gaps in the framework for hate crime laws and to make sure that hate crime laws are compatible with laws that protect human rights and equality

Lord Bracadale published his ‘Independent Review of Hate Crime Legislation’^[6] on 31 May 2018. In responding to publication of the report, we accepted his recommendation^[7] to consolidate all Scottish hate crime legislation into one new hate crime statute and committed to consult on the detail of what will be included in the new hate crime bill.

We recognise that on its own, legislation cannot build the inclusive and equal society that we aspire to. This consultation therefore includes questions in relation to the broader topics commented upon by Lord Bracadale such as victim support and restorative justice.

In parallel to Lord Bracadale’s work, the Working Group on Defining Sectarianism in Scots Law has been developing its report ‘Final Report of the Working Group on Defining Sectarianism in Scots Law’^[8], published in November 2018.

This group was established following a recommendation made by the Scottish Parliament’s Justice Committee. During their Stage 1^[9] considerations of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill, the Committee heard evidence from a number of sources which suggested that the lack of a legal definition of the term ‘sectarianism’ was a hindrance to police and prosecutors in pursuing cases of abusive sectarian behaviour.

The Working Group considered whether this could be achieved; the technical obstacles to achieving it; and what a legal definition could look like. The Group has recommended the development of a statutory aggravation for sectarian hate crime.

This consultation provides you with an opportunity to share your views and inform what is included in the new hate crime legislation.

A summary of Lord Bracadale’s recommendations is attached at Annex A.