One Scotland: consultation on current hate crime legislation

Part One – Consolidating and Modernising Hate Crime Legislation

This chapter looks at the recommendations made by Lord Bracadale on the underpinning principles of hate crime legislation and how our legislation might best be modernised to provide a clear and consistent basis for prosecuting hate crime behaviour.

As already announced by the Scottish Government following publication of Lord Bracadale’s report, we agree that all relevant hate crime provisions including the statutory aggravations should be contained in one place. Therefore we intend to consolidate all Scottish hate crime legislation into a single statute to provide clarity, transparency and consistency.

The discussion that follows in this consultation explores issues relating to how one set of consolidated hate crime legislation might be modernised and reformed.

Section 1: Rationale

Lord Bracadale’s report^[10] explained that:

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… 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.

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.

Lord Bracadale’s Recommendation 1

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

Lord Bracadale’s Recommendation 20

All Scottish hate crime legislation should be consolidated.

For further reading, the relevant material discussing these issues in Lord Bracadale’s report is at paragraphs 3.2 to 3.4^[11] and paragraphs 9.1 to 9.13^[12] of his report.

Subject to discussion later on in this consultation relating to a small number of standalone offences, the Scottish Government agrees that maintaining statutory aggravations as the core method for dealing with hate crime is appropriate. We think that this approach is effective and that it allows for clear records and statistics to be kept in respect of hate crime. We therefore propose to accept this recommendation.

Question 1:

Do you think the statutory aggravation model should continue to be the core method of prosecuting hate crimes in Scotland?
(Please tell us why in the comments box.)

Section 2: Modernisation and Language

Thresholds

As has been explained above, the existing core method of prosecuting hate crimes in Scotland is via the attachment of a statutory aggravation when a person has committed an offence. A statutory aggravation ‘attaches’ to an offence in certain circumstances based on the conduct or motivation of the offender. In order for an aggravation to attach, there needs to be an underlying piece of criminal conduct i.e. a baseline offence committed. The circumstances that require to be met are sometimes referred as the ‘threshold’, or test for proving the aggravation.

At present, the various statutory aggravations in relation to different protected characteristics share a common framework as to when the aggravation will apply, and a similar ‘threshold’ for proving an aggravation applies in each case.

Lord Bracadale’s report^[13] explained that:

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.

Lord Bracadale considered^[14] whether the current thresholds were appropriate and concluded that they should remain the same, but with updated language:

The consultation responses indicated a need for simpler, 'user-friendly' language in the legislation. …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.

The Scottish Government agrees with Lord Bracadale that the two existing thresholds (or tests) for the statutory aggravations are effective and should be retained but that the language should be updated.

We want to ensure that the language of the tests is easier to understand and therefore propose, as recommended by Lord Bracadale, that the wording should be changed from ‘evincing malice and ill-will’ to ‘demonstrating hostility’.

However, the intent of this change of wording is not to change the scope of the thresholds or tests themselves. While we agree with Lord Bracadale that updating the language as suggested does not mean that there will be any change in how the test operate, this is a specific area where we have sought views in a consultation question below.

Lord Bracadale’s 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.

For further information, Lord Bracadale’s reasons for this recommendation can be found at paragraphs 3.5 to 3.13^[15] of his report.

Question 2:

Do you think that the language of the thresholds for the statutory aggravations would be easier to understand if it was changed from ‘evincing malice and ill will’ to ‘demonstrating hostility’?
(Please tell us why in the comments box.)

Question 3:

Do you think changing the language of the thresholds for the statutory aggravations from ‘evincing malice and ill will’ to ‘demonstrating hostility’ would change how the thresholds are applied?
(Please tell us why in the comments box.)

Intersex and transgender

Section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 (‘the 2009 Act’) created a statutory aggravation in respect of the protected characteristic of sexual orientation and the protected characteristic of transgender identity. Section 2(8) of that Act defined ‘transgender identity’ as being a reference to, among other things, intersexuality. However, in the time since the 2009 Act was enacted the Scottish Government now understands that there are concerns with a person’s intersex status being presented as an aspect of transgender identity, rather than as a separate identity characteristic.

Lord Bracadale’s report^[16] explained that:

…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…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.

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.

Lord Bracadale’s report^[17] described the responses to his consultation questions on the use of language in this area:

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. 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.

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.

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.

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.

Lord Bracadale identified that there is therefore a difference between ‘transgender’ and ’intersex’ and that these are two separate identity characteristics, as opposed to intersex status being a sub-category of transgender identity. Lord Bracadale recommends that this should be reflected in hate crime legislation in respect of the protected characteristics to which hate crime legislation applies. We therefore propose to establish a separate category of ‘intersex’ to ensure legislation reflects current understanding and best practice.

We are aware of the importance of language and that a range of terms can be used to describe variations of sex characteristics, including ‘intersex variations’ and ‘differences of sex development’ (sometimes called DSD). In addition, some people born with variations in sex characteristics prefer not to use any of the collective terms to describe themselves or their variation, but instead may only talk specifically about their variation. Consultation questions below seek views on terminology in this area.

We are also aware, as regards the language used to describe transgender identity, that terms such as ‘transvestism’ and ‘transsexualism’ are widely viewed as outdated. The definition of ‘transgender identity’ in the 2009 Act currently uses these terms. Consultation questions below seek views on the terminology in this area.

As well as seeking views through this consultation exercise to update the language on transgender identity and intersex, we also propose to draw on the findings from our forthcoming consultation on improving the experiences of people with variations of sex characteristics (intersex) in Scotland.

Lord Bracadale’s 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).

For further information, Lord Bracadale’s reasons for this recommendation can be found at paragraphs 3.28 to 3.36^[18] of his report.

Question 4:

Do you think that variations of sex characteristics (intersex) should be a separate category from transgender identity in Scottish hate crime legislation?
(Please tell us why in the comments box.)

Question 5:

Do you think that the terms used in Scottish hate crime legislation in relation to transgender identity and intersex should be updated?
(Please tell us why in the comments box.)

Question 6:

If you think that the terms used in Scottish hate crime legislation in relation to transgender identity and intersex should be updated, what language would you propose?