One Scotland: consultation on current hate crime legislation

Part Four - Exploitation and Vulnerability

Section 10 New Statutory Aggravation – Exploitation and Vulnerability

As discussed above, the thresholds used in the statutory aggravation approach in hate crime legislation are based on hostility by the perpetrator towards a person or persons due to their perceived membership of a particular group. For example, an offence committed against a person where the perpetrator demonstrated hostility towards that person because they were elderly would be addressed through the inclusion of age as a protected characteristic, as discussed in section 4 of Part 2 of this consultation paper.

However, Lord Bracadale draws a distinction between crimes based on hostility towards a particular group, and crimes where the perpetrator targets a potential victim because the perpetrator believes them to be in some way vulnerable. Lord Bracadale defined hate crime as ‘offences which adhere to the principle that crimes motivated by hatred or prejudice towards particular features of the victim’s identity should be treated differently’^[75] from other crimes. Where a perpetrator targets a victim in order to exploit a vulnerability (perceived or otherwise) the perpetrator does not necessarily hate the person because of that vulnerability, but is motivated to exploit the vulnerability for the purposes of the offence.

Accordingly, this chapter considers Lord Bracadale’s further recommendations in this area regarding introducing a general aggravation covering exploitation and vulnerability Lord Bracadale discussed the issue as follows^[76]:

The principal difficulty with defining hate crime around vulnerability is that the message conveyed by labelling the crime as hate crime becomes diluted and the category of hate crime 'loses it special symbolic power'. Although there may be instances where a decision to target an individual because of their perceived vulnerability involves the offender making a value judgement about the individual's 'worthiness' based on their characteristic… I am not convinced that this will always be the case.

Vulnerability will usually arise from issues associated with a characteristic rather than from the identity characteristic itself. For example, some older people may be frail and have memory difficulties; others do not. An offender who deliberately targets a person they know to be vulnerable may well be doing so because of what they know of the specific individual rather than their views or value judgments about the wider group.

It is also difficult to apply this approach to cases where the characteristic is not the reason for the victim being targeted, but instead is associated with the reason the crime succeeds. For example, a bogus workman might target a number of people on a street and be successful in defrauding some of the neighbours but not others. This may be because the particular individuals are more easily deceived, and this could be considered to be related to their age or disability. However, it is not clear to me that this type of crime is what society would wish to mark out specifically as a hate crime.

These examples illustrate why I think an approach which considers why an offender selects victims risks mischaracterising exploitation as a hate crime. There is also the danger that this approach could have practical difficulties and raise false expectations. It would be difficult for prosecutors to prove an intention to select a victim on grounds of an identity characteristic and the number of cases caught might be significantly less than hoped for.

This is a controversial issue and I suspect that many people will have differing views. While I was initially attracted by the approach, for the reasons outlined above I ultimately decided not to recommend it. I have, however, set out the argument so that Ministers may judge it for themselves. I shall revisit this issue in the context of whether age should be added as an additional protected characteristic and I propose an alternative approach which could be used to recognise and tackle the phenomenon of targeting people who are, or are perceived to be, vulnerable without treating this as a form of hate crime.

As part of his consideration of a new statutory aggravation based on age hostility within the existing suite of hate crime legislation, Lord Bracadale concludes that^[77]:

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

Lord Bracadale noted the strong support for the introduction of a statutory aggravation covering offences committed against older people because of perceived vulnerability. Often, older people are targeted by perpetrators of particular forms of crime not because the perpetrator is motivated by hatred of older people, but because the perpetrator perceives them as being more vulnerable to such crime.

However, not all crime involving exploitation of vulnerability is ‘opportunistic’. There have been high profile cases where someone responsible for caring for a person has taken advantage of their position of trust to financially exploit the person they are meant to be caring for.

Equally, we are aware of cases where people who rely on carers or family have been abused or neglected by those who are supposed to be looking after them and that this may or may not be accompanied by financial exploitation.

As Lord Bracadale notes, these issues do not only affect older people. His view is that people may be vulnerable, or perceived as being vulnerable, because of, for example, a physical disability, illness or a learning disability.

Lord Bracadale explicitly recognised that a proportion of offences committed against disabled people are based not on hostility, but on perceived vulnerability.

Lord Bracadale therefore recommended that the exploitation of vulnerability should not fall within the definition of ‘hate crime’, and that the Scottish Government should consider the introduction, outwith the hate crime scheme, of a general aggravation concerning exploitation of vulnerability.

Statutory aggravations in contexts other than hate crime already exist on the statute book. For instance:

• aggravation of an offence which involves abuse of a partner or ex-partner (section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016)
• aggravations of offences in connection with human trafficking (sections 5 to 7 of the Human Trafficking and Exploitation (Scotland) Act 2015)
• aggravation of the offence of domestic abuse by reason of involving a child (section 5 of the Domestic Abuse (Scotland) Act 2018)

This is a complex subject and we want to use this consultation to explore the impact of Lord Bracadale’s recommendation in this area. We want to carefully consider how ‘vulnerability’ is defined in any such aggravation and what circumstances should be covered.

Vulnerability can take very different forms. As noted above, a person may be targeted because they are perceived as being more vulnerable because of factors such as their age, or because of a physical disability. Equally, a person may be perceived as being more vulnerable, for example, because they are under the influence of alcohol or drugs at the time an offence is committed against them, or even because they are identified by the perpetrator as being lost or in unfamiliar surroundings (for example a tourist visiting a city they do not know, late at night).

It is also important to consider that vulnerability can be relative. While people with mobility issues may be especially vulnerable to an opportunistic street robbery, and people with cognitive issues or learning disabilities could be especially vulnerable to opportunistic fraudsters, most of the population could be considered vulnerable relative to a person who threatens them with a weapon. Indeed, perpetrators may target victims for certain types of crime, such as street robbery because they perceive them as being vulnerable to that crime or unlikely to put up resistance.

It is not clear that all types of ‘vulnerability’ described in the above two paragraphs should necessarily be treated in the same way as the kind of crimes committed against people who are perceived as being especially vulnerable because of their age, disability or physical infirmity.

In addition to this, any aggravation will require the prosecution to prove beyond reasonable doubt that the offence is aggravated in the way specified.

It may, for example, be easier to prove that a person deliberately exploited the vulnerability of someone they were caring for over a significant period of time, than that an opportunist thief or doorstep scammer deliberately targeted their victim because they believed them to be especially vulnerable.

Given these issues a statutory aggravation covering exploitation and vulnerability may not be the best way to address this issue. The judiciary are able to take account of the full facts and circumstances of each case before them, including whether, and in what way, the perpetrator exploited the vulnerability of their victim, when determining an appropriate sentence for each offender. A statutory aggravation may risk unnecessarily complicating sentencing decisions in this area.

However, a statutory aggravation would provide reassurance that the justice system recognises the particular harm caused by perpetrators who target victims because they perceive them to be especially vulnerable.

We would welcome views on whether there should be a statutory aggravation, outwith the hate crime scheme, concerning exploitation of vulnerability and, if so, how that aggravation should be framed.

Lord Bracadale’s Recommendation 3

Offending behaviour which involves the exploitation of perceived vulnerabilities should not be treated as a hate crime. (But see recommendation 11).

Lord Bracadale’s Recommendation 11

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

Further information on Lord Bracadale’s recommendations can be at paragraphs 3.14 to 3.27^[78] and paragraphs 4.1 to 4.70^[79] of his report.

Question 28:

Do you think a statutory aggravation (outwith hate crime legislation) should be introduced that could be applied when a perpetrator exploits the vulnerability of the victim?
(Please provide details in the comments box.)

Question 29:

If you think a statutory aggravation (outwith hate crime legislation) should be introduced that could be applied when a perpetrator exploits the vulnerability of the victim, please provide details of the circumstances that you think such an aggravation should cover?