One Scotland: consultation on current hate crime legislation

Part Two – New Statutory Aggravations

This part of the consultation considers the recommendations made by Lord Bracadale and by the Working Group on Defining Sectarianism in Scots Law on whether there should be additional statutory aggravations added to the suite of hate crime legislation to cover new groups and characteristics. As noted above, the existing statutory aggravations apply in respect of the identity characteristics of: race, religion, disability, sexual orientation and transgender identity.

The new groups and characteristics considered include the two characteristics proposed by Lord Bracadale: gender and age. It is also proposed that a consistent approach is taken to protecting those who associate with a person with a protected characteristic (see section 7 of this Consultation).

Lord Bracadale’s report explained^[19] the approach that he took to considering whether additional statutory aggravations should be created as follows:

…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.

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.

Section 3: Gender

Lord Bracadale^[20] considered whether offending relating to hostility (or malice and ill-will) based on 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.

It is important to understand that… the practical impact of gender-based offending falls almost exclusively on women.

For ease of consistency of references with Lord Bracadale’s report, this consultation paper takes the same approach to the use of the term ‘gender as opposed to ‘sex’ as is taken in the report.^[21]

Lord Bracadale noted that in the context of the debate on gender based hate crime, the term ‘misogyny’ is commonly used. This is relevant as to whether any new provision is framed in terms of ‘gender’ or is framed in terms of ‘misogyny’. Lord Bracadale concludes that a new statutory aggravation should be based in terms of gender rather than misogyny (please see further below for discussion on this point). Lord Bracadale also considered what is meant by the term ‘misogyny’^[22]:

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.

In his report, Lord Bracadale^[23] summarises the responses received in relation to gender.

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.

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.

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

As extracted above, and set out more fully in paragraphs 4.9 to 4.50 of his report, Lord Bracadale considers that there are various reasons why recognition of gender based hostility as a hate crime is necessary. This includes the increasing prevalence of online gender hostility (see Part 3 Section 9 for further discussion about online hate crime) and because of the risk of normalisation of hostility based on gender and the damaging effect this can have on society. Lord Bracadale^[24] sets out what he thinks could be achieved by gender hostility being considered a hate crime:

‘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.’

After concluding that gender based hostility should be categorised as a hate crime, Lord Bracadale considered what form that should take, first considering whether or not there should be a statutory aggravation based on gender hostility and then considering whether or not a standalone offence is warranted.

Aggravation building on existing baseline offences

Lord Bracadale considered whether or not an aggravation based on gender hostility, in the same model as existing statutory aggravations based on other identity characteristics, should be introduced^[25]:

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.

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.

… 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.

Lord Bracadale recommends a statutory aggravation based on gender hostility rather than specifically misogyny. Throughout the discussion on gender, Lord Bracadale notes that there is no consistent understanding of what is encompassed by the term ‘misogyny’^[26] and that this can ‘unintentionally mask what is meant, as similar language is used by different people to mean different things’.^[27] He also notes that as part of the preparation of his report, an academic report was prepared which undertook comparative research of the hate crime laws in place in other countries. While several countries had in place legislation concerning offences based on gender prejudice, none of these were in terms of misogyny and were instead in terms of ‘gender’ or ‘sex’.^[28] Lord Bracadale’s conclusions on whether the aggravation should be based on gender or on misogyny are set out in paragraph 4.43^[29] of his report:

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.

In regards to a new statutory aggravation based on gender, Lord Bracadale^[30] concluded that:

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.

Standalone offence – misogynistic harassment

Lord Bracadale^[31] also considered whether or not there should be a new standalone offence to tackle misogynistic harassment and abuse:

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 could take a number of years.

In regards to a standalone offence, Lord Bracadale^[32] concluded that:

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.

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.

Lord Bracadale’s 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 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.

For further information, Lord Bracadale’s reasons for this recommendation can be found at paragraphs 4.9 to 4.50^[33] of his report.

Gender-based offending is a complex issue and there are different views on the action needed to tackle this. Since the publication of Lord Bracadale’ s report, there have been a number of developments in this area which have further emphasised the need for action to be taken, whilst recognising the complexity of this issue:

• on 9 July 2018, the ‘Misogyny as a Hate Crime Evaluation Report’ was published. The report details the findings of an evaluation commissioned by the Office of the Nottinghamshire Police and Crime Commissioner and the Nottingham Women’s Centre to assess the impact of the ‘Misogyny Hate Crime’ policy, introduced by Nottinghamshire Police in April 2016’. The report findings reiterated that ‘there is a high level of complexity in tackling misogyny, and that a significant part of the challenge is due to the ‘normalisation’ of these incidents’,
• on 5 September 2018, UK Government Ministers announced that they will be asking the UK Law Commission to undertake a review of English and Welsh hate crime legislation. The terms of reference of this review were published on 18 October 2018^[34], and include consideration as to how additional protected characteristics, in particular sex and gender, should be considered by new or existing hate crime law in England and Wales

We believe that there is a clear need for action to be taken to tackle gender based prejudice and misogyny and have identified four main options for progressing this work. These options are set out below.

Option A: Implement Lord Bracadale’s recommendation to establish a statutory aggravation based on gender hostility.

Lord Bracadale stated that ‘there are patterns of offending which relate particularly to the victim’s gender and should be addressed through [hate crime] legislation^[35]’.

Although this option focuses on gender based hostility, Lord Bracadale stated ‘that the practical impact of gender-based offending falls almost exclusively on women.^[36]’

This option would establish a new statutory aggravation based on gender hostility. This would mean that 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, 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. This option follows the current approach taken in the existing statutory aggravations for race, religion, disability, sexual orientation and transgender identity.

Lord Bracadale felt that this approach would be easiest to understand by both practitioners and the public as it will remain consistent with other hostility based aggravations. For further information, Lord Bracadale’s discussion of why he made this recommendation can be found above and at paragraphs 4.9-4.50^[37] of his report.

This approach would provide consistency with section 2 in terms of using aggravations as the core method of tackling hate crime (as set out on page 8). By way of example, sections 38 and 39 of the Criminal Justice and Licensing (Scotland) Act 2010 create the offences of threatening and abusive behaviour and stalking respectively. These can cover a range of conduct, and the creation of an aggravation based on gender would enable such conduct to be recorded and dealt with as aggravated by gender hostility.

Lord Bracadale mentions that one advantage of statutory aggravations compared to standalone offences is the evidentiary burden.^[38] Existing statutory aggravations can be proved by a single source of evidence at trial whereas standalone offences require two sources of evidence (known as corroboration). Applying this here, it may be easier to prove a statutory aggravation based on gender hostility compared to a standalone offence of misogynistic harassment.

Option B: Develop a standalone offence relating to misogynistic harassment.

Organisations such as Engender, Rape Crisis Scotland, Scottish Women’s Aid and Zero Tolerance have called for the development of a standalone offence for misogyny to tackle the unique features of violence and harassment against women. These organisations take the view that adding an aggravation for gender hostility will not be helpful in tackling misogynistic harassment and/or abuse. They believe that the development of a specific offence to deal with this would recognise that the reality of violence against women is a complex issue and requires a considered approach.

The Scottish Government’s Equally Safe strategy^[39] states that violence against women and girls is a gendered issue and that it occurs in a societal context where gender stereotypes and inequality continues to persist. Women and girls therefore experience gender based violence because they are women and girls.

A number of women’s organisations have stated that in order to tackle misogynistic harassment and abuse, an approach that focuses specifically on the experience of women needs to be taken.

At this stage it is not clear what specific conduct a potential standalone offence for misogyny might cover, therefore if consultees consider that a standalone offence is necessary we would welcome views on the types of behaviour that could be captured by an offence of this nature.

To inform the development of a potential standalone offence, we could draw on our experience of the approach taken to develop the Domestic Abuse (Scotland) Act 2018. The approach to developing domestic abuse legislation was to work closely with stakeholders with a role in tackling violence against women and girls, although the legislation itself is gender neutral. A potential first step could be to consider the types of conduct experienced by women which could be described as misogynistic behaviour.

This would include considering the impact of such conduct on those who experience it and whether such conduct is or is not captured within existing criminal offences.

As noted by Lord Bracadale, development of a standalone offence in this way is likely to take a significant amount of time. This approach would likely therefore be a longer term piece of work out with the development of this hate crime legislation.

Option C: Build on Equally Safe to tackle misogyny (a non-legislative approach)

The Equally Safe Strategy^[40], the Scottish Government and COSLA’s joint strategy for preventing and eradicating violence against women and girls, recognises that violence against women and girls can have both an immediate and long-lasting impact on the individuals and families directly involved. It impacts on the wider health, wellbeing and safety of our communities breeding a culture where this type of harm is tolerated – sometimes even condoned – and as a result is allowed to continue.

The Scottish Government is clear that this is unacceptable for modern day Scotland and does not reflect the country of equality we aspire to become. Equally Safe sets out a shared understanding of the causes, risk factors and scale of gender based violence and highlights the need to prioritise prevention in order to challenge the notion that violence and abuse is inevitable or acceptable. It recognises that this is a systemic issue that requires change in practice and, fundamentally, a change in culture.

On this basis, legislation is not always the sole or indeed the correct vehicle to drive this change forward. This option would focus on the use of education and wider activity to drive societal change, focusing on the implementation of Equally Safe alongside more gendered based policy and practice to end violence against women.

This would build on current work to deliver Equally Safe, including a suite of interventions that focus on primary prevention and aim to educate children and young people about gender based violence, ‘consent’ and healthy relationships. Current and relevant interventions include Rape Crisis’ Sexual Violence Prevention Programme and the piloting of a ‘Whole School’ approach to tackling gender based violence.

This option could be taken forward in its own right, or in tandem with one or both of the legislative options set out above.

Option D: Take forward all of the above Options.

This would include both Options A (establish a statutory aggravation based on gender hostility) and B (standalone offence relating to misogynistic harassment), as well as Option C (building on Equally Safe).

This option would involve taking forward proposals to include a statutory aggravation for gender in the hate crime bill as well as exploring the development of a standalone offence for misogyny. This would mean that we would develop a gender aggravation to be included within the new hate crime bill alongside work on a standalone misogyny offence which would be a longer term piece of work. In the short term this would send a clear message to society that the type of behaviour set out in Option A is unacceptable and is being taken more seriously by the justice system, however would also recognise the complexity associated with tackling misogynistic harassment or abuse.

Question 7:

Do you agree with Option A to develop a statutory aggravation for gender hostility?
(Please provide details in the comments box below.)

Question 8:

Do you agree with Option B to develop a standalone offence for misogynistic harassment?
(If you agree, please tell us why and provide examples of the types of behaviour that could be captured by this offence.)

Question 9:

Do you agree with Option C of building on Equally Safe to tackle misogyny (this would be a non‑legislative approach)?
(If you agree please tell us why.)

Question 10:

Do you agree with Option D of taking forward all of the identified options? (This would include development of a statutory aggravation based on gender

hostility (Option A); development of a standalone offence relating to misogynistic harassment (Option B); and work to build on Equally Safe (Option C)?
(If you agree, please tell us why.)
(Please provide examples of the types of behaviour that could be captured by the standalone offence.)

Section 4: Age

In some cases where a crime is committed against an older person, it may be that the victim is not targeted because of the offender’s hostility against older people but rather because the offender perceives the victim as being more vulnerable than other people in society. The reason for the offence in those circumstances is exploitation of a perceived vulnerability – for instance if the victim is physically frail. Lord Bracadale draws a distinction between crimes motivated by the exploitation of a perceived vulnerability and crimes committed because of hostility based on the victim’s perceived age i.e. hostility against a person because they are old, or because of their age.

This section of the consultation focuses on hostility based on age. Section 11 of this consultation considers the separate issue of crimes motivated by exploitation of vulnerability.

Lord Bracadale considered whether age should be included as a protected characteristic in the suite of hate crimes. He noted stakeholders reported that while it may be that many crimes against the elderly are motivated by a desire to exploit a perceived vulnerability, some crimes are motivated by hostility based on the perceived age of the victim.

Lord Bracadale^[41] found that:

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…The difficulty which emerges… 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.

…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.

…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.

A statutory aggravation on ‘age’ hostility would cover people of any age. It does not refer to a particular age group such as elderly people or children and young people. Lord Bracadale considered the application of this to children and young people. He noted in his report^[42] that:

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.

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.

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.

In summary, Lord Bracadale found that, although there might only be a relatively small proportion of crimes relating to hostility against a person because of their age, introducing a new statutory aggravation based on age hostility would send a clear message to society that these offences would be treated seriously and would not be tolerated.

His view was that where crimes motivated by hostility based on age do occur, it is important that these crimes should be treated in the same way as other hate crimes.

This proposal focuses on an aggravation concerning hostility based on age, rather than a proposal for additional protection of a vulnerable person. Please see Part Four which considers Lord Bracadale’s recommendation on exploitation and vulnerability.

Lord Bracadale’s 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 would 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.

For further information, Lord Bracadale’s reasons for this recommendation can be found at paragraphs 4.51 and 4.70^[43] of his report.

Question 11:

Do you think that a new statutory aggravation on age hostility should be added to Scottish hate crime legislation?

(Please provide details in the comments box.)

Section 5: Sectarianism

This section considers the issue of sectarianism. Specifically, whether sectarianism should be included within new hate crime legislation and, if so, how sectarianism would be defined within that legislation.

In his review of hate crime legislation, Lord Bracadale noted that the issue of sectarianism goes beyond hate crime and considered the issue in the context of the recent repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (the 2012 Act) and the creation of the Working Group on Defining Sectarianism in Scots Law (the Working Group) which is discussed below.

Lord Bracadale noted that there was no consensus among those consulted during his review on what is meant by sectarianism, and noted that there were ‘sharp divisions of opinion on whether it is a religious concept, a political and cultural concept or involves a mixture of religion, politics and culture.’ Given the Working Group was specifically tasked with considering the merits of a legal definition of sectarianism, and the Working Group had not reported at the time he delivered his review, Lord Bracadale stated that the Working Group was ‘best suited to take [this] forward’.

Sectarianism is often described as an intersectional issue – meaning that expressions of sectarianism can combine prejudice toward different characteristics, some of which are already protected in law, such as religion and race, and some which are not, such as the more difficult to define concept of culture. Lord Bracadale concluded that the absence of a statutory aggravation based on sectarianism would not leave a gap in the law because both the race and religion statutory aggravations can be attached to any specific offence once proven.

Lord Bracadale explained in his report^[44]:

First, it is clear that the concept of sectarianism extends beyond hate crime. The references to 'exclusion' and 'discrimination' in one of the definitions emphasise that sectarianism is not restricted to crime at all. It is a broader societal issue. In addition to criminal offences, it may feature in non-legislative contexts and in circumstances governed by the civil law. Thus, many aspects of sectarianism are beyond the remit of this review.

Secondly, there is a range of strongly held views as to what is meant by the term. There are sharp divisions of opinion as to whether it is a religious concept, a political and cultural concept or involves a mixture of religion, politics and culture.

Thirdly, the Justice Committee, by referring to 'future parliaments and governments' clearly contemplated a developing long-term debate in relation to laws to tackle sectarianism.

Fourthly, the working group has been established to work on a definition of sectarianism and they are best suited to take that forward.

It may be that as a result of the labours of the working group and future discussion and debate a specific bespoke means of dealing with offences of a sectarian nature may emerge. In the meantime, I am satisfied that criminal conduct in the context of a football match, which gave rise to prosecutions under section 1 [of the 2012 Act] when it was in force, can be prosecuted under the existing law. In relation to an offence characterised by religious prejudice a statutory aggravation may be applied.

In relation to an offence with a political aspect, while…….I have concluded that hate crime should not extend to political identity, where the offence involves glorifying a proscribed organisation, a common law aggravation may be applied. The same approach can be adopted in relation to offences of a sectarian nature outwith the context of football. The majority of respondents to the consultation paper considered that it was appropriate to deal with sectarian singing, chanting etc. in the same way wherever it occurred.

In its report at Stage 1, the Scottish Parliament’s Justice Committee noted that scrutiny of the Repeal Bill (now the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Act 2018) had sparked a new debate on sectarian behaviour. The Committee considered that it was important that the Scottish Government gave consideration to introducing a definition of sectarianism in Scots Law, which, whether or not the 2012 Act was repealed, would help any future parliaments and governments in taking forward laws to tackle sectarianism.

Lord Bracadale’s Recommendation 19

No statutory replacement for section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is required. I do not consider it necessary to create any new offence or statutory aggravation to tackle hostility towards a sectarian identity (insofar as that is different from hostility towards a religious or racial group) at this stage. The conclusions of the working group which has been appointed to consider whether and how sectarianism can be defined in law will provide Scottish Ministers and Parliament with the basis to debate how best to deal with offences of a sectarian nature in due course. That debate might include consideration of whether any such offences should be classed as a form of hate crime or treated as something distinct.

For more information on Lord Bracadale’s recommendation please see Chapter 8^[45] of his report.

We agree with Lord Bracadale that the will of the Scottish Parliament should be respected in relation to the repeal of section 1 of the 2012 Act (covering offensive or threatening behaviour at football matches which was likely to incite public disorder) and that the focus of our considerations on this issue should be on the conclusions and proposals made by the Working Group which was established by the Scottish Government to provide a basis for considering whether or not sectarianism should be defined in Scots Law.

The Working Group has now reported to Scottish Ministers who are committed to using the group’s report as the basis for further consultation. This section takes forward that commitment and we have included questions on defining sectarianism in Scots Law below as part of this broader consultation on hate crime legislation.

Background to the working group

During their consideration of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill (the Repeal Bill), the Justice Committee of the Scottish Parliament heard from a range of sources that there was a need to establish a legal definition of the term ‘sectarianism’ to aid application of the law by police and prosecutors.

The Justice Committee Stage 1 report on the Repeal Bill, published on 18 January 2018 recommended that:

The Committee considers it important that the Scottish Government gives consideration to introducing a definition of sectarianism in Scots Law, which – whether or not the 2012 Act^[46] is repealed – would help any future parliaments and governments in taking forward laws to tackle sectarianism.

The Working Group was established to provide evidence on the benefits and drawbacks of establishing a legal definition of sectarianism, and Scottish Ministers further committed to consulting on the findings of the Working Group to allow considerations of this issue to be informed by a wide range of views.

The working group’s remit was:

To consider and weigh up the pros and cons of establishing a legal definition of ‘sectarianism’ in Scots Law. Report the findings of these considerations to Scottish Ministers making clear recommendations on whether such a definition should be introduced and, if so, propose the text of such a definition.

The ‘Final Report of the Working Group on Defining Sectarianism in Scots Law’^[47] was published at the same time as this consultation document. The Working Group proposed that:

Definition: Sectarianism should be defined in law and that the definition should reflect the common understanding of sectarianism in modern Scotland. The Group’s view is that sectarianism as it is commonly understood in Scotland is rooted in religious antipathy based on perceived Christian denominational affiliation, and hostility expressed in terms of perceived British or Irish national origins and citizenship. In other words, for the purpose of naming sectarianism in Scots Law, sectarianism should be defined as hostility based on perceived (a) Roman Catholic or Protestant denominational affiliation, (b) British or Irish citizenship, nationality or national origins or (c) a combination of (a) and (b).

The Working Group noted that sectarianism becomes a reality when antagonism, hostility, abuse or violence is directed at people because they are perceived to belong to the other group, or when perceived identity with a group is used to give permission to or justify violent and/or discriminatory behaviour which would otherwise be condemned.

Fair naming: The principle of ‘fair naming’ or ‘fair labelling’ (that is, naming something for what it is) should apply so that criminal acts of prejudice can be named more accurately whether that be anti-Catholicism; anti-Protestantism; sectarianism or any other descriptor. The Working Group noted that sectarianism is an issue which does not fall easily into a single categorisation, but has evolved over time to be present within the religious, racial, cultural and political spheres.

The original link to religion is often completely obscured as the language of sectarianism is applied in cultural areas where the links to religion are no longer obvious. However, the context for this work was seeking to explore the options for defining sectarianism in law, and not simply to define it in a general sense.

Political views: In line with Lord Bracadale’s findings, political views should not be included in any legal definition of sectarianism.

Breadth of the definition: Without a more robust evidence base, any legal definition of sectarianism should be limited to sectarianism rooted in religious hostilities and rivalries within Christianity at present.

Levels of sectarianism that exist outside of Christian communities in Scotland were not clear but that the views of all faiths should be sought through this consultation to allow evidence of non-Christian sectarianism to be identified and better understood.

Statutory aggravation: Lord Bracadale recommended the introduction of two new statutory aggravations for hate crime based on the protected characteristics of age and gender, and the Working Group believes that a new statutory aggravation of ‘sectarian prejudice’ should be incorporated into future consolidated hate crime legislation. This would introduce the language of sectarianism into Scots Law and be symbolically important, allowing sectarian crimes to be fairly named as such. The Working Group concluded that legal recognition of sectarianism could assist those struggling to tackle the issue out with the legal sphere and add a strong driver to support their work.

The Working Group concludes that a statutory aggravation of sectarian prejudice/ hostility should be introduced. Throughout the report the Working Group mentions the complex, intersectional nature of sectarianism. They set out a draft definition of what ‘sectarian prejudice’ would mean at pages 30 and 31 of their report.

The Working Group also concludes that there is no need for a standalone offence of sectarian prejudice. Lord Bracadale also looked at stirring up hatred offences (discussed below), which are a category of standalone hate crime offences. The Working Group did not support a stirring up of hatred offence in connection with sectarianism.

The full rationale for the draft legal definition outlined by the Working Group can be found on pages 31-32^[48] of their report.

The Scottish Government believes that further exploration of the findings and proposals made by the Working Group are required. Specifically, the Scottish Government recognises that the argument for fair naming is an important one as understanding the different forms of hate crime in Scotland more accurately is essential for the development of future government policy. The Scottish Government already recognises that anti-Catholicism; anti-Protestantism; anti-Irish racism; and anti-British racism all exist to varying degrees. However, the intersectional nature of sectarianism, as described by the Working Group, raises the question of whether there is value in being able to specifically identify and name sectarianism as something which differs from these categories.

The Scottish Government also believes that the idea of a statutory aggravation for sectarianism is worth exploring further as this may be an effective way to ensure that sectarian behaviour which crosses the criminal threshold is seen to be punished without the need to create a new standalone offence. As with all statutory aggravations, a sectarian aggravation could only be added if an initial charge for criminal behaviour was proven. On conviction, the fact that the offence was motivated by, or demonstrated, sectarian prejudice would be taken into account in passing sentence. However, the Scottish Government also acknowledges that if such an aggravation was to be taken forward, the scope of this would need to be carefully considered.

The following questions have therefore been designed to explore the findings of the Working Group:

Question 12:

Do you think there is a need for sectarianism to be specifically addressed and criminalised in hate crime legislation.
(Please give your reasons for your response.)

Question 13:

If your response to question 12 was yes, do you think a statutory aggravation relating to sectarianism should be created and added to Scottish hate crime legislation?
(Please give your reasons for your response.)

Question 14:

If your response to question 12 was yes, do you think a standalone offence relating to sectarianism should be created and added to Scottish hate crime legislation?
(Please give your reason for this.)

Question 15:

If your response to question 12 was yes, do you agree with the Working Group that sectarianism should be defined in Scots Law in terms of hostility based on perceived Roman Catholic or Protestant denominational affiliation of the victim and/or perceived British or Irish citizenship, nationality or national origins of the victim?
(Please give your reason for this.)

Question 16:

If you disagree with the Working Group's proposed definition of sectarianism, what do you believe should be included in a legal definition of sectarianism?
(Please give your reason for this.)

Question 17:

The Scottish Government recognises that legislation on its own will not end sectarianism. What else do you feel could be done to address sectarianism?

If you have answered the questions in this section, you may also wish to refer to the following section (6) on Other Groups or Characteristics and questions 18 to 20.

Section 6: Other Groups or Characteristics

Sections 3 and 4 outlined Lord Bracadale’s recommendations on the creation of statutory aggravations based on the characteristics of gender and age. Section 5 then considered recommendations made by both Lord Bracadale and the Working Group on Defining Sectarianism in Scots Law in regards to whether sectarianism should be included within hate crime law. Lord Bracadale concluded that, other than gender and age, it is not necessary to create any further statutory aggravations within hate crime law.

This section considers political/religious/racial cross-over; other new groups and characteristics; and whether it is necessary to extend the religious aggravation provision to capture religious or other beliefs held by an individual rather than a group. Each of these aspects will be considered in turn.

Political/religious/racial cross-over

As part of his review, Lord Bracadale considered whether a statutory aggravation should apply where an offence is motivated by malice and ill-will (or hostility) towards a political entity which the victim is perceived to be associated with by virtue of their racial or religious group. His report found that^[49]:

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.

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.

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.

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.

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.

Lord Bracadale^[50] concluded:

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.

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.

Lord Bracadale recommended that it was not necessary to create a statutory aggravation to cover hostility towards a political entity. We propose to accept his recommendation.

For further information, Lord Bracadale’s reasons for these recommendations can be found at paragraphs 3.40 to 3.49^[51] of his report:

Question 18:

Do you think that a new statutory aggravation on hostility towards a political entity should be added to Scottish hate crime legislation?
(Please provide details in the comments box.)

Other specific new groups or characteristics

Lord Bracadale considered whether it would be necessary to create statutory aggravations to cover hostility towards any other specific new groups or characteristics (other than gender or age, which are discussed above).

He considered immigration status and concluded^[52]:

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.’

Lord Bracadale considered membership of the Gypsy/Traveller community and concluded^[53]:

Romany gypsies have long been recognised as an ethnic racial group, and other more recent court decisions have treated Irish travellers and Scottish Gypsy/Travellers as ethnic groups too. 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.

Lord Bracadale considered Gaelic speakers and concluded^[54]:

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.

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.

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

Accordingly, Lord Bracadale did not consider it necessary for there to be new statutory aggravations in connection with hostility toward immigrants/ immigration status, the Gypsy/ Traveller community or Gaelic speakers. That is because the existing statutory aggravation in connection with hostility based on race is defined widely enough in the existing legislation to capture these other areas in so far as they are examples of nationality (including citizenship and ethnicity).

Lord Bracadale also considered socioeconomic status, and concluded^[55]:

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.

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.

Lord Bracadale set out his conclusion in relation to other groups^[56]:

…a number of further groups were suggested by consultation respondents to be covered by 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, 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.

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.

Lord Bracadale recommended that it was not necessary to create a statutory aggravation to cover hostility towards any specific new groups or characteristics, (other than gender or age). We propose to accept his recommendation.

Lord Bracadale’s Recommendation 12

I do not consider it necessary to create a statutory aggravation to cover hostility towards any other (meaning other than gender or age) specific new groups or characteristics.

For further information, Lord Bracadale’s reasons for this recommendation can be found at paragraphs 4.71 to 4.95^[57] of his report.

Question 19:

Do you think that a new statutory aggravation should be added to Scottish hate crime legislation to cover hostility towards any other new groups or characteristics (with the exception of gender and age)?
(Please provide details in the comments box.)

Religiously aggravated offending: consideration of extending the religious aggravation provision to capture beliefs held by an individual

The remit of Lord Bracadale’ s review included considering whether the existing religious statutory aggravation (section 74 of the Criminal Justice (Scotland) Act 2003) should be adjusted to reflect further aspects of religiously motivated offending.

Lord Bracadale’s report explained the background^[58]:

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.

Lord Bracadale concluded^[59]:

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.

Lord Bracadale also considered whether the provision should extend to those targeted for being a humanist or an atheist^[60]:

… 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.

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 CrossParty Working Group on Religious Hatred which reported in 2002. 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.

Lord Bracadale recommended that it was not necessary to create a statutory aggravation to extend the religious aggravation provision to capture religious or other beliefs held by an individual rather than a group. We propose to accept his recommendation.

Lord Bracadale’s 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.

For further information, Lord Bracadale’s reasons for this recommendation can be found at paragraphs 3.50-3.56^[61] of his report.

Question 20:

Do you think that the religious statutory aggravation in Scottish hate crime legislation should be extended to include religious or other beliefs held by an individual?
(Please provide details in the comments box.)

Section 7: Association with Members of a Protected Group

At the moment, the existing statutory aggravations in relation to the protected characteristics of race, religion, disability, sexual orientation and transgender identity each apply where the offence is motivated by, or demonstrates, hostility based on one of those grounds even where the victim does not have the identity characteristic in question. For instance, someone is assaulted because of the perpetrator’s prejudice against Muslims but the victim is not Muslim. In such cases, a statutory aggravation would apply even though the perpetrator was mistaken as to the fact that the victim had the identity. This is because the statutory aggravations apply where the perpetrator presumes that the victim has the identity characteristic.

Lord Bracadale recommends that it continues to be the case that the statutory aggravations (including any new statutory aggravations) continue to apply where an offence is motivated by, or demonstrates, hostility in relation to people who are presumed to have the identity characteristic. The Scottish Government agrees with this approach.

Currently the race and religion statutory aggravations also apply in relation to persons who have an association with someone with the protected characteristic.

This is because section 96 of the Crime and Disorder Act 1998 (race statutory aggravation) defines membership of a racial group as including association with members of the group. Likewise, section 74 of the Criminal Justice (Scotland) Act 2003 (religion statutory aggravation) defines membership of a religious group as including association with members of the group. This is different to the perpetrator being mistaken as to the victim being a member of a particular racial group or religious group. Rather, the application of the aggravations in relation to people who have an association applies where, for example, a white person is assaulted because they socialise with a person of a different race.

While the race and religion aggravations apply in relation to people associating with members of a racial or religious group, this is not the same in relation to the statutory aggravations applying in relation to disability, sexual orientation and transgender identity. Lord Bracadale recommends that the association principle should apply in relation to all of the statutory aggravations.

Lord Bracadale considered association and presumed membership. His report^[62] explained that:

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.

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.

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.

The Scottish Government recognises the merits of modernising legislation to ensure that all of the hate crime statutory aggravations apply in relation to people who are presumed to have the characteristic or who have an association with the protected characteristic.

For example, if a person is targeted because the perpetrator presumed they were gay (i.e. this is an example of the aggravation applying where there is a presumption that a person has a protected characteristic), or a parent is targeted because they are with their disabled child (i.e. this is an example of the aggravation applying where there is an association with the protected characteristic).

We propose to accept Lord Bracadale’s recommendation.

Lord Bracadale’s 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 that particular identity.

For further reading, the relevant material discussing these issues in Lord Bracadale’s report is at paragraphs 3.37 to3.39^[63] of his report.

Question 21:

Do you think that the statutory aggravations in Scottish hate crime legislation should apply where people are presumed to have one or more protected characteristic(s)?
(Examples of protected characteristics are religion, sexual orientation, age, gender, race, disability, transgender identity and intersex).
(Please provide details in the comments box.)

Question 22:

Do you think that the statutory aggravations in Scottish hate crime legislation should apply where people have an association with that particular identity (relating to religion, sexual orientation, age, gender, race, disability, transgender identity and intersex)?
(Please tell us why?)