One Scotland: consultation on current hate crime legislation

Part Three – New Stirring Up of Hatred Offences

Section 8: Current Position and Proposed Changes

As mentioned above, in the context of hate crime, there are both statutory aggravations and standalone offences. So far, this consultation has focused on statutory aggravations, but this section considers a category of standalone offences referred to as stirring up hatred offences.

Lord Bracadale noted that statutory offences of stirring up hatred only exist in relation to race. These are contained in sections 18 to 22 of the Public Order Act 1986. These existing offences would capture actions that are threatening, abusive or insulting, with the intention of stirring up racial hatred, or which, having regard to all the circumstances, are likely to stir up racial hatred.

Lord Bracadale’s report^[64] explained that:

Stirring up hatred is conduct which encourages others to hate a particular group. It is dealt with as a standalone offence in our current legislation. This is distinct and different from the concept of a baseline offence directed at a member or members of the group (e.g. harassment or assault) with a statutory aggravation in relation to a protected characteristic. In the case of the latter, the baseline conduct is already criminal; it is the motive or demonstration of hostility that marks it out as a hate crime. The offence is directed against a member, or members, of the group. In the context of stirring up hatred, the intention of the perpetrator is that hatred of the group as a whole is aroused in other persons. Hate is primarily relevant, not as the motive for the crime, but as a possible effect of the perpetrator's conduct. It is not necessary that the perpetrator incites others to commit an offence.

Unlike an aggravated offence, where the underlying conduct is itself criminal, a stirring up of hatred offence may criminalise conduct which would not otherwise be criminal… Criminalising conduct is a serious step, not taken lightly. In deciding whether to recommend extension of stirring up offences a number of considerations have to be taken into account. These include:

• whether stirring up hatred of a group with a protected characteristic is morally wrong;
• the harm caused by stirring up of hatred offences;
• their seriousness;
• whether they fulfil a strong symbolic function;
• whether there is a gap in the law; and
• whether there are practical benefits flowing from them.

The Scottish Government agrees that these are the key issues to consider in assessing the merits of an expansion of stirring up hatred offences.

In considering the merits of having stirring up hatred offences, Lord Bracadale^[65] explained his views on these key issues as follows:

Wrongfulness

There is a general consensus that stirring up racial hatred is morally wrong. I think that there would be broad agreement that stirring up of hatred in relation to any of the protected characteristics is wrongful.

Harm

Stirring up of hatred may lead to violence or public disorder. It may incite people to commit offences such as assault against individuals in the group. …Even where not resulting in offences, the stirring up of hatred can contribute to a social atmosphere in which prejudice and discrimination are accepted as normal. Behaviour which may stir up hatred can cause members of the group to feel vulnerable to attack and excluded from the wider community. There may be an impact on the dignity of the group. …The harm caused by stirring up of hatred offences can be particularly severe and it is an important consideration pointing towards the extension of such offences.

Seriousness

Offences of stirring up of hatred in relation to a protected characteristic are particularly serious. They attack the group generally rather than individual members of the group. The following examples illustrate the serious nature of stirring up offences:

• In March 2018, a letter was circulated online entitled Punish a Muslim in which points were offered for carrying out a variety of acts against Muslim persons on a particular day of action.
• In the one case of stirring up religious hatred prosecuted on indictment under section 6 [of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (‘OBFTCA’)], the accused posted remarks on Twitter stating that he hated Shia and Kurds and called for them to die ‘like the Jews did at the hands of Nazi Germany’.
• In another section 6 OBFTCA case, the accused posted on Facebook showing support for the IRA including a picture of a person with a gun saying ‘Where is the Orange walk?’

Symbolic function

The labelling of the particular behaviour in terms of stirring up of hatred is symbolically important. They are particularly serious offences and the conviction and sentence for stirring up hatred should carry a stigma. Stirring up of hatred offences communicate to those convicted and to those who might be tempted to engage in such conduct that society particularly condemns it. A stirring up of hatred offence will be a highly significant entry on the record of previous convictions of the offender. It also communicates to the groups with protected characteristics, and to society in general, that the law has taken steps to protect those with a protected characteristic from hatred... I consider that the symbolic function is a persuasive argument in favour of having stirring up of hatred offences.

Frequency of prosecutions for stirring up offences

Stirring up of hatred offences directed against the group are likely to be much less common than aggravated offences directed against one or more individual member(s) of the group…The limited number of prosecutions does not, however, necessarily mean that there is under-prosecution of these offences, or that they do not have a useful function… I do not consider that the argument that there might not be many prosecutions is persuasive against having a regime of stirring up hatred offences. Indeed, their relative rarity may only enhance their symbolic value.

Is there a gap in the law?

I recognise that almost every case which could be prosecuted as a stirring up offence could also be prosecuted using a baseline offence and an aggravation: most, for example, could be prosecuted as threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (CJLSA), along with an aggravation.

in each case the nature of the offence, which was directed against the group rather than individual members of it, called out for it to be more appropriately marked by a specific stirring up of hatred offence. I conclude that there is a gap in the law in the absence of stirring up offences in relation to the protected characteristics apart from race.

Practical benefits

The practical benefits are similar to those identified in relation to aggravated offences. The seriousness of the offence of stirring up of hatred is likely to be reflected in increased sentence. The perpetrator will have on his/her criminal record a particularly egregious conviction. Recording of conviction and sentence will allow statistics to be kept and trends to be identified and monitored.

Freedom of expression

Lord Bracadale^[66] also identified that these are concerns arise that any expansion of stirring up hatred offences could adversely affect freedom of speech and freedom of expression.

The potential risk to freedom of expression from the introduction of stirring up hatred offences is well recognised. The (now-repealed) offence of stirring up religious hatred in section 6 OBFTCA includes express exceptions in section 7 to ensure that the freedom to debate and express views relating to religion was protected. Nothing in the section 6 provision of stirring up of religious hatred prohibited or restricted: (a) discussion or criticism of religions or the beliefs or practices of adherents of religions; (b) expressions of antipathy, dislike, ridicule, insult or abuse towards those matters; (c) proselytising (persuading others to share the same view or belief); or (d) urging of adherents of religions to cease practising their religions. When the Westminster Parliament legislated to prohibit stirring up of hatred on religious and sexual orientation grounds in England and Wales, it included similar protection in relation to the discussion of religion. In relation to sexual orientation, it expressly provided that the discussion or criticism of sexual conduct, practices or marriage, or urging people to alter their behaviour was not in itself to be treated as threatening or intending to stir up hatred.

Having considered Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR)Lord Bracadale^[67] concluded that:

A protection of freedom of expression provision, similar to those described above, could be included in legislation. I do not consider that new stirring up of hatred offences would have the effect of stifling legitimate views or seriously hindering robust debate. I conclude that concerns about freedom of expression should not preclude the extending of stirring up hatred offences.

The Scottish Government considers that issues relating to freedom of speech and freedom of expression must be considered carefully.

Article 10 stipulates

10.1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

The European Court of Human Rights has consistently treated freedom of expression as a fundamental human right, emphasising its importance not only directly, but also as a core underpinning of democracy and other human rights.

Protection for freedom of expression is built into the operation of the legal system. All laws made by the Scottish Parliament have to be interpreted in a way that is compatible with the ECHR. If they cannot be interpreted as compatible, they have no effect.

However, even with these protections, the Scottish Government believes there can be merit in clearly and explicitly signally respect for human rights in legislation. There are examples on the statute book of provisions that offer direct protection of ECHR rights. For example, section 16 of the Marriage and Civil Partnership (Scotland) Act 2014^[68] explicitly provides that nothing in the Act affects the ECHR rights to freedom of thought, conscience and religion or to freedom of expression. A similar approach could be adopted for the purposes of any new legislation relating to offences concerning stirring up of hatred.

English and Welsh law contains stirring up hatred offences in relation to religion and sexual orientation (under sections 29A to 29N of the Public Order Act 1986). Sections 29J and 29JA of that Act contain protections for freedom of expression in relation to those offences. Section 6 of the now-repealed Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 created an offence of stirring up religious hatred and section 7 contained protections for freedom of expression in relation to that offence. Lord Bracadale recommended that similar protections for freedom of expression should be included in any new legislation relating to stirring up of hatred.

Protected characteristics to be included

Lord Bracadale’s report also considered whether stirring up hatred offences should be expanded to other protected characteristics^[69]:

The strongest case for extending stirring up cases to other protected characteristics may be made in respect of religion. The repeal of section 6 OBFTCA has left a gap in the law. Stirring up of hatred in relation to religion is an offence in the rest of the United Kingdom.

…I consider that the arguments in favour of extending stirring up of hatred offences to include religion are strong.

…I consider that the argument that there should be parity between all protected characteristics is strong. It is highly undesirable to have a hierarchy of protected characteristics. I do not consider that the fact that there might be fewer convictions in respect of one characteristic rather than another to be particularly significant. I conclude that, if stirring up offences are to be extended to other protected characteristics, they should extend to all, including any new protected characteristics.

The Scottish Government considers there is merit in considering whether stirring up hatred offences should be extended to other protected characteristics and is interested in hearing views on whether there should be an expansion.

Thresholds

Lord Bracadale’s report also considered the different approaches taken to the scope and thresholds (or tests) that apply for an offence to be committed in existing ‘stirring up hatred’ offences in the different UK jurisdictions and considered how they might need to be adjusted^[70]:

The provisions in the Public Order Act 1986 for stirring up racial hatred require conduct or material that must be 'threatening, abusive or insulting'. There must also be either:

(a) an intention to stir up racial hatred; or (b) having regard to all the circumstances it is likely that racial hatred will be stirred up (which I refer to below as 'the likelihood formula').

…I consider that the requirement for threatening behaviour sets the threshold too high. Abusive conduct which was not necessarily threatening could still be intended to stir up hatred in relation to a protected characteristic or could give rise to the likelihood that hatred could be stirred up. The use of the phrase 'threatening or abusive' would be consistent with the approach in section 38 of the [Criminal Justice and Licensing (Scotland) Act 2010]. I recommend that the threshold about the nature of the conduct in a stirring up of hatred offence should use the words 'threatening or abusive'.

As to whether the offences should be restricted to an intention to stir up hatred, or should also include the likelihood formula used in the stirring up of racial hatred offences, I consider that the wider test including both of these would give more flexibility.

...If the stirring up of racial hatred provisions in the Public Order Act 1986 are to be consolidated along with any new provisions it would be desirable that the tests would be consistent in relation to each protected characteristic. I therefore recommend that any new stirring up of hatred offences should include a requirement of an intention to stir up hatred or that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.

The existing offences concerning stirring up racial hatred (contained in sections 18 to 22 the Public Order Act 1986) requires that, for the offence to be committed the conduct or material must be ‘threatening, abusive or insulting’. Lord Bracadale recommended that consistency with other protected characteristics required that the reference to ‘insulting’ should be deleted.

Lord Bracadale noted in his report that the word ‘insulting’ was deleted from the English and Welsh harassment offence under section 5 of the Public Order Act 1986 in 2014 without any material impact. He observed that there did not appear to be any adverse effect on the ability of the Crown Prosecution Service (the English and Welsh equivalent of the COPFS) to prosecute such conduct, as any ‘stirring up hatred’ conduct that had actually been prosecuted involved behaviour that could be characterised as ‘abusive’ as well as ‘insulting’.

Lord Bracadale’s Recommendation 13

Stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics.

Lord Bracadale’s Recommendation 14

Any new stirring up of hatred offences should (a) require conduct which is threatening or abusive; and (b) include a requirement (i) of an intention to stir up hatred, or (ii) that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.

Lord Bracadale’s Recommendation 15

The current provisions in relation to stirring up racial hatred under the Public Order Act 1986 should be revised and consolidated in a new Act containing all hate crime and stirring up of hatred legislation.

Any replacement for the stirring up of racial hatred provisions should (a) require conduct which is threatening or abusive; and (b) include a requirement (i) of an intention to stir up hatred, or (ii) that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.

Lord Bracadale’s Recommendation 16

A protection of freedom of expression provision similar to that in sections 29J and 29JA of the Public Order Act 1986 and section 7 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 should be included in any new legislation relating to stirring up offences.

Further information on Lord Bracadale’s recommendations can be found at paragraphs 5.1 to 5.42^[71] of his report.

Question 23

Do you agree with Lord Bracadale’s recommendation that stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics?’
(Please provide details in the comments box.)

Question 24:

Do you agree with Lord Bracadale’s recommendation that any new stirring up hatred offences should require that the conduct is ‘threatening or abusive’?
(If not, what do you think the threshold should be for the offence to be committed?)

Question 25:

Do you think that the existing provisions concerning the stirring up of racial hatred should be revised so they are formulated in the same way as the other proposed stirring up hatred offences?
(This would mean that the offence would apply where the behaviour is ‘threatening or abusive’, but not where it is only ‘insulting’.)
(Please provide details in the comments box.)

Question 26:

Do you agree with Lord Bracadale’s recommendation that there should be a protection of freedom of expression provision for offences concerning the stirring up of hatred?
(If you answered yes to this question, do you have any comments on what should be covered by any such ‘protection of freedom of expression’ provision?)
(Please provide details in the comments box.)

Section 9: Online Hate

In the modern era, online communication is a core part of many people’s everyday lives and interactions with others. The Scottish Government notes that the starting point in considering what changes may be necessary as regards online hate crime is that what is criminal off-line is criminal on-line, and that an existing offence committed online can be aggravated in the same way as any other offence can be aggravated.

For instance, the offence of threatening or abusive behaviour at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 can be prosecuted in relation to conduct occurring online or in person and, in both cases, statutory aggravations can be attached if the offence is motivated by, or the perpetrator demonstrates, hostility toward the victim on the basis of a protected characteristic. Similarly, the offences of stirring up racial hatred under sections 18- 22 of the Public Order Act 1986 can be prosecuted in relation to online conduct.

This consultation asks whether stirring up of hatred offences should be extended to cover other identity characteristics.

With this in mind, the focus of this section is on whether any additional criminal law measures are needed to combat online hate crime that the criminal law does not already provide.

Lord Bracadale^[72] considered how well the current law operates in relation to hate crime and hate speech online, and whether any changes are needed. Lord Bracadale’s report found that:

Consultation responses indicated a concern that the online environment was becoming increasingly hostile, with significant harm caused to individuals and groups as a result of online hate and harassment, and a perception that it is not taken as seriously as equivalent face-to-face conduct.

Areas where respondents felt the law does not respond at all, or responds inadequately, include: online bullying and harassment (including ‘crowd-sourced harassment’); misogyny and incitement to misogyny; inciting self-harm or suicide; enabling pornography to be viewed by children; online paedophilia; publication of ‘fake’ news; expressions of hate through gaming platforms and sites; impersonating another person online; posting photographs or personal information without consent and with intention to harass, demean or degrade; threats to an individual’s life, family or home. I would note here that some of the conduct described goes beyond what might be thought of as identity-based hate crime or hate speech. Respondents were concerned about more general forms of abuse and offensive communication.

It should be noted that there are a range of criminal offences which can be used to prosecute abuse and harassment, whether it occurs online or face-to-face. These include the offences of threatening or abusive behaviour, stalking, indecent communication and offences concerning the stirring up of racial hatred.

• the offence of ‘threatening or abusive behaviour’ at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 (‘the 2010 Act’) makes it an offence to behave in a threatening or abusive manner, where that behaviour is such that it would be likely to cause a reasonable person to feel fear or alarm.

• where a person undertakes a course of conduct which is intended to cause the victim to suffer fear or alarm (or where the person knows or ought to have known that engaging in the course of conduct would be likely to cause the victim to suffer fear or alarm), it may amount to an offence of stalking under section 39 of the 2010 Act.
• where the abusive or threatening communications are of a sexual nature, depending on the circumstances, it may be prosecuted using offences concerning ‘communicating indecently’ or ‘coercing a person into looking at a sexual image’ contained in the Sexual Offences (Scotland) Act 2009.
• section 127 of the Communications Act 2003 contains two offences:

• a) it is an offence to send by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character or to cause such a message or matter to be sent
• b) it is an offence, for the purpose of causing annoyance, inconvenience or needless anxiety to another:

i) to send by means of a public electronic communications network, a message that the sender knows to be false

ii) to cause such a message to be sent, or

iii) to persistently make use of a public electronic communications network

Lord Bracadale^[73] considers that all forms of hate crime – whether committed face-to-face or online - will be able to be better addressed through implementing his proposals for modernising hate crime legislation. He concluded:

Having reviewed the existing legislation, I consider that the current suite of offences (if supplemented in accordance with my recommendations for a gender hostility aggravation and stirring up offences) are capable of being used to prosecute all of the examples of online hate crime and hate speech drawn to my attention which justify a criminal response.

It is worth noting that some of the examples of online behaviour which were noted by respondents to the consultation, while undoubtedly harmful, distressing and offensive, would not amount to hate crime falling within the scope of this review. Examples include incitement to self-harm and suicide, online fraud and impersonating another person online.

However, stakeholders have expressed concern that ‘lower level’ online abuse is not covered by legislation and that further consideration is needed due to the often damaging impact it can have on people’s lives.

Lord Bracadale’s Recommendation 17

Recommendations 9 (gender hostility) and 13 (stirring up) will form part of an effective system to prosecute online hate crime and hate speech.

I do not consider any further legislative change necessary at this stage.

However, I would encourage the Scottish Ministers in due course to consider whether the outcomes of the Law Commission’s work on online offensive communications identify any reforms which would be of benefit to Scots criminal law across reserved and devolved matters.

Further information on Lord Bracadale’s recommendation can be at paragraphs 6.1 to 6.53 ^[74] of his report.

Question 27:

Do you agree with Lord Bracadale’s recommendation that no specific legislative change is necessary with respect to online conduct?
(Please provide details in the comments box.)