One Scotland: consultation on current hate crime legislation

Part Five – Other Issues

Section 11: Repeal of Section 50A Racially Aggravated Harassment

Other standalone offences in the context of hate crime law are the offences relating to racially-aggravated harassment, contained in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995. These offences include the element of hostility as a core part of the offence. This is different from operating on the basis of a baseline offence with a separate statutory aggravation.

Lord Bracadale explains section 50A as follows

Section 50A incorporates two separate offences:

a) racially aggravated course of conduct which amounts to harassment of a person and is intended to amount to harassment or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment; and

b) a single racially aggravated act which causes, or is intended to cause, a person alarm or distress.

In each case the offence is racially aggravated if the offender is motivated by malice and ill-will towards members of a racial group based on their membership of that group, or evinces malice and ill-will towards the person affected based on that person's membership, presumed membership or association with a racial group.

For these purposes, ‘harassment’ in section 50A(1)(a) includes causing the person alarm or distress and a ‘course of conduct’ must involve conduct on at least two occasions.

There are no equivalent offences in relation to other protected characteristics. The Crime and Disorder Act 1998 simultaneously created:

• the standalone offence of racially aggravated harassment by way of inserting section 50A into the Criminal Law (Consolidation) (Scotland) Act 1995 (section 33 of the 1998 Act)
• the statutory racial aggravation (section 96 of the 1998 Act)

The offence was developed before the introduction of other statutory aggravations concerning e.g. religious hatred, now found elsewhere in the statute book. The development of this approach was informed by concerns that the problems of racial harassment and racially motivated violence were not treated seriously enough by the criminal justice system.

Lord Bracadale takes the view that, over time, other legislation has been introduced which captures the behaviour covered under section 50A. He goes on to discuss the offence of threatening or abusive behaviour which is contained in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010^[80]:

In 2010, the Scottish Parliament enacted the offence of threatening or abusive behaviour. The offence is committed if a person behaves in a threatening or abusive manner, the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and the perpetrator intends to cause fear or alarm or is reckless about doing so.

It is possible to charge the section 38 offence with any of the statutory aggravations. According to the Scottish Government Criminal Proceedings database statistics the number of convictions for section 50A offences reached a peak during the years 2011/12 and 2012/13 when 929 and 933 convictions were recorded.

There then appears to be a noticeable decline, because by 2016/17 there were only 626 convictions under section 50A. Looking at similar statistics for convictions under section 38 with a racial aggravation there has been an increase in the number of convictions since the 2010 Act came into force with 125 convictions in 2011/12 and 433 convictions in 2016/17.

A reasonable conclusion which can be drawn from the numbers is that the decline in the convictions under section 50A has been accompanied by a corresponding increase in convictions under section 38 with a racial aggravation. The figures suggest that the newer offence of section 38 with a racial aggravation has been recognised and brought into use.

In comparing the tests of 'fear or alarm' (as per section 38 of the Criminal Justice and Licensing (Scotland) Act 2010) and 'alarm or distress' (per section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995), Lord Bracadale’s report explains^[81]:

The tests of 'fear or alarm' and 'alarm or distress' are not identical, but it is difficult to envisage a realistic circumstance which could be prosecuted under section 50A and not also under section 38 with a racial statutory aggravation. No such examples have emerged from the review's consultation or research.

Sentencing differences

The section 50A offence allows for a maximum sentence of 12 months on summary complaint and seven years on indictment. In comparison, a section 38 offence allows for a maximum sentence of 12 months on summary complaint and five years on indictment. If the section 50A offence were repealed, allowing section 38 to remain, then arguably it may reduce the scope for sentencing by two years on indictment.

However, the review has consulted the Criminal Proceedings Statistics office of the Scottish Government and has been advised that there have been no instances where a custodial sentence exceeded five years on a section 50A conviction. On that basis, the sentencing provisions provided by section 38, with a maximum of five years on indictment would have covered all previous cases.

…It is of note that the vast proportion of section 50A and section 38/section 96 offences are prosecuted on summary complaint rather than indictment. With sentencing ceilings being identical on summary complaint between section 50A and section 38 and the majority of such cases proceeding on that basis, any difference between maximum sentencing on indictment will have little practical impact.

Corroboration implications

In terms of sufficiency of evidence required to prove a section 50A offence, it must be corroborated which means that there must be more than one piece of evidence to prove all parts of the offence. This is a requirement of proof in any criminal proceedings in Scotland.

There is a difference in the sufficiency of evidence required to prove a statutory aggravation because corroboration is not essential. While the baseline offence attached to any statutory aggravation must be corroborated, the evidence to prove the racial aggravation does not need to be. From a prosecution perspective, the extent of evidence required to prove a section 38 offence with a section 96 racial aggravation attached is slightly less onerous in terms of corroboration than that required of a section 50A offence where the entire element of the offence must be corroborated.

Lord Bracadale^[82] concluded:

I am concerned that the continued use of section 50A has a potentially negative effect. It makes the scheme of hate crime legislation more complicated than it needs to be, which risks causing confusion to the public. It also complicates the statistics and makes it difficult to identify trends.

I recognise the force of the arguments that section 50A had a very important symbolic significance when it was enacted. However, I consider that the symbolism of section 50A should be considered in the light of other developments in equality and hate crime law since 1998, which now cover a number of protected characteristics. I consider that a consistency of approach is important to avoid a perception of there being a counter- productive 'hierarchy' between the different protected characteristics. A human-rights based approach would suggest that legislation should apply consistently to protected groups unless there is a strong reason to do otherwise.

I do not detract in any way from the seriousness of racial harassment. Racially aggravated offending remains a very significant issue, with a corrosive impact of society. I understand the arguments made by some parties that removing a specific legislation provision risks reducing the emphasis which is placed on tackling that form of offending or diluting the message that it is condemned by the State. However, I do not agree that is a necessary or likely consequence of repeal, particularly when Scots law includes a clear and focused alternative charge which can be used. It remains important that crimes of racial violence and racial harassment are dealt with seriously, but this is achieved more through the resources and procedures which are devoted to the issue than the specific form of legislation applied. Effective action to tackle racial harassment and to convey its seriousness to the public does not require a separate legislative framework. I therefore recommend the repeal of section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995.

Lord Bracadale’s view is that the existence of section 38 of the Criminal Justice and Licencing (Scotland) Act 2010 and section 96 of the Crime and Disorder Act 1998 have resulted in section 50A no longer being needed to meet the aims which it was intended to achieve when it was created in 1998. The report recommends that Section 50A of the Criminal Law (Consolidations) (Scotland) Act 1995 should be repealed.

Some stakeholders have raised concern around the repeal of Section 50A and the potential message that this sends to victims, perpetrators and wider society. It has also been suggested that this would leave a gap in the level of protection provided to this group of people.

Lord Bracadale’s Recommendation 18

Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed.

For further information, Lord Bracadale’s reasons for this recommendation can be found at paragraphs 7.1 to 7.26^[83] of his report.

Question 30:

Do you think that Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 about racially aggravated harassment should be repealed?
(Please provide details in the comments box.)

Question 31:

What do you think the impact of repealing section 50A of the Criminal Law (Consolidations) (Scotland) Act 1995 about racially aggravated harassment could be?

Section 12: Sentencing

Lord Bracadale’s report^[84] explained that certain requirements fall on the court when sentencing for a hate crime aggravation. His report explained that:

There is a requirement on the sentencing court to:

• take the aggravation into account in determining the appropriate sentence;
• state on conviction that the offence was aggravated in relation to the particular characteristic;
• record the conviction in a way that shows that the offence was so aggravated; and
• to state, where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or, otherwise, the reasons for there being no such difference.

Lord Bracadale’s report^[85] indicated that:

From those who supported the concept of a hate crime there was very strong support in favour of clear and consistent recording of the aggravation. The following reasons were given. The requirement to record enhanced the transparency of the justice system. It showed that hate crime was being taken seriously; it would increase confidence in the justice system; and encourage reporting.

It was also important to ensure that records were kept so that the offending appeared on the criminal record of the perpetrator. Good records allowed for monitoring the impact of legislation and the maintenance of statistics. This informed the development of effective policy and practice.

I strongly agree with these responses. It is fundamental to the scheme that the sentencing judge takes the aggravation into account in determining the appropriate sentence. It is also essential that, first, the sentencer states in court that the aggravation has been taken into account, in order that all may be aware of this; and, secondly, there is consistent compliance with the requirement to record the conviction in a way that shows that the offence is aggravated so that that will appear on the schedule of previous convictions and can be taken into account in any future case. I consider these requirements to be crucial to the effective operation of the statutory aggravation approach. In addition, good recording allows for the maintenance of statistics and monitoring the impact of legislation.

Lord Bracadale considered whether it was necessary to maintain the rule that the sentencing judge should state the difference between the sentence and what it would have been in the absence of an aggravation. His report^[86] stated:

I consider that… to take the aggravation into account in determining the appropriate sentence, to state on conviction that the offence was aggravated in relation to the particular characteristic, and to record the conviction in a way that shows that the offence was so aggravated, are the vital requirements to promote understanding of the law, transparency of the judicial process and consistency in sentencing. It is these requirements that send a message and permit meaningful records to be kept.

I recognise that the introduction of the requirement to state the difference in sentence was well-intentioned. However, to be effective such provisions must be practical and workable. I consider that there is force in the arguments advanced by those operating the scheme that the requirement to state the difference in sentence expressly gives rise to difficulty. Sentencing is a matter of judgement and the sentencer requires to take into account a range of considerations in assessing the appropriate sentence in a particular case. Some factors may point in different directions. In some cases the difference in sentence attributable to the aggravation may lead to disappointment and disillusionment on the part of the victim.

I conclude that this requirement is over-complicated and does not serve a clear purpose so should be repealed. There may of course be circumstances in which a sentencer chooses to set out this detail, but that should be a decision for them in the individual case rather than a blanket requirement.

The Scottish Government agrees with Lord Bracadale’s comments on the importance of the requirements to state and record that convictions have been aggravated, and that aggravations should be taken into account in determining the sentence. We propose to accept his recommendation in respect of these requirements.

However, while the Scottish Government is broadly supportive of Lord Bracadale’s views in this area, we would propose to reject his recommendation to remove the current requirement to state the extent to which the sentence imposed is different from what would have been imposed in the absence of the aggravation. If this was implemented, it would mean that the difference in the length of sentence would no longer be required to be stated in open court.

During initial engagement with stakeholders following publication of Lord Bracadale’s report, we have heard a range of views about this recommendation, including a number of concerns with the potential removal of the requirement to state the extent to which the sentence imposed is different to what it would have been without the aggravation.

We heard that stating the difference in the sentence sends a message to both victims and perpetrators that these types of crimes are being taken seriously. In addition, it was thought that there was potential to make more use of this information in providing effective support to victims.

Lord Bracadale’s Recommendation 8

Where a statutory aggravation is proved, the court should be required to state that fact expressly and it should be included in the record of conviction. The aggravation should be taken into account in determining sentence. There should no longer be an express requirement to state the extent to which the sentence imposed is different from what would have been imposed in the absence of the aggravation.

Further information on Lord Bracadale’s recommendation can be found at paragraphs 3.57 to 3.66 ^[87] of his report.

Question 32:

Do you think that courts should continue to be required to state in open court the extent to which the statutory aggravation altered the length of sentence?
(This would mean that Lord Bracadale’s recommendation on sentencing would not be taken forward.)
(Please provide details in the comments box.)

Section 13: Wider context: Support for Victims of Hate Crime and Restorative Justice

Support for victims of hate crime

In 2017, in response to Duncan Morrow’s Independent Advisory Group report on Hate Crime, Prejudice and Community Cohesion^[88] the Scottish Government published its Tackling Prejudice and Building Connected Communities Action Plan^[89], an ambitious programme of work to tackle hate crime and build community cohesion.

It looks to address under reporting of hate crime, including barriers to reporting and third party reporting; consider and address prejudice-based bullying; consider the gathering of data and evidence in relation to hate crime; and hate crime in the workplace.

An Action Group, chaired by the Cabinet Secretary for Communities and Local Government with key stakeholders, was established to take this work forward. The Action Group will publish a report on progress in 2020.

Lord Bracadale^[90] stated in his report:

Reporting hate crime and the criminal justice response are integral parts of the implementation of hate crime legislation. An effective suite of hate crime laws must be underpinned and supported by:

• a willingness on the part of victims of hate crime to report it; unless it is reported no prosecution is possible and victims will not receive justice; and
• a criminal justice system that is effective and co-ordinated.

Lord Bracadale addressed the issue of under reporting of hate crimes and the various ways that could remedy this, such as a through the use of third party reporting centres, anonymity for witnesses and a change of culture within the police and criminal justice system. In his report Lord Bracadale^[91] also highlights activity underway to support victims:

In April 2018, the Cabinet Secretary for Justice announced a new, 3-year funding package for Victim Support Scotland totalling £13.8 million, to enable them to provide free practical and emotional support to victims of crime across the country.

The Programme for Government^[92] contains a package of measures to improve the experience of victims of crime. This includes work being led by Victim Support Scotland to develop a new victim centred approach, working with partners to streamline points of contact, improve information flow and ensure victims of crime feel supported through the criminal justice system.

In addition, the Cabinet Secretary for Justice is chairing a new Victims Task Force, to provide leadership to guide and shape the development of this victim-centred approach. Beginning its work before the end of 2018, the Task Force will focus on delivery of the victims commitments in Programme for Government. This will provide the necessary oversight and momentum to ensure progress and achieve better outcomes for all victims of crime.

There are currently many initiatives being undertaken to ensure that victims of hate crime are supported throughout the reporting process. We therefore believe that no legislation change is required at this point to support victims of hate crime.

On this basis, we propose to accept Lord Bracadale’s recommendation that no legislative change is required in this area.

Recommendation 21

No legislative change is required in relation to the support given to victims of hate crime offences. However, I note and commend the practical measures being taken to create a more coordinated response to reporting, preventing and responding to hate crime offences.

Further information on Lord Bracadale’s recommendation can be found at paragraphs 10.1 to 10.37 and paragraphs 10.38 to 10.52^[93] and of his report.

Question 33:

Do you agree that no legislative change is needed in relation to the support given to victims of hate crime offences?
(Please provide details in the comments box.) Restorative justice

Lord Bracadale encourages the use of restorative justice processes in dealing with hate crime, where appropriate. Lord Bracadale defines restorative justice as ‘a process of independent, facilitated contact, which supports constructive dialogue between a victim and a person who has harmed arising from an offence or alleged offence.’^[94]

Lord Bracadale also noted that^[95]

From the evidence available to the review, I consider that there is strong potential for diversion and restorative justice techniques to be effective when used appropriately.

Restorative justice is the concept that mediation may be helpful between victims of crime (either people or communities as a whole) and perpetrators where the perpetrator faces up to their offending behaviour and takes responsibility for it.

We do not believe there is a need for statutory change to facilitate restorative justice or diversion from prosecution as there are clear structures and Scottish Government guidance on restorative justice^[96] that can be used to ensure the consistent governance, oversight and standards.

In addition, the Scottish Government has made a commitment in Programme for Government to have restorative justice services widely available across Scotland by 2023 with the interests of victims at their heart. We will publish a Restorative Justice Action Plan by spring 2019 that will set out how we deliver this aim.

Accordingly we agree with Lord Bracadale that legislative change is not required in relation to restorative justice.

On this basis, we propose to accept Lord Bracadale’s recommendation that no legislative change is required in this area.

Lord Bracadale’s Recommendation 22

No legislative change is required in relation to the provision of restorative justice and diversion from prosecution services. However, I encourage practitioners to take note of, and learn from, developing practice in this area.

Further information on Lord Bracadale’s recommendation can be found at paragraphs 10. 38 to 10.52^[97] of his report.

Question 34:

Do you agree that no legislative change is needed in relation to the provision of restorative justice and diversion from prosecution within hate crime legislation in Scotland?
(Please provide details in the comments box.)

Section 14: Any Gaps?

Lord Bracadale provided a comprehensive review of hate crime legislation and made a number of recommendations in his report. We would like to know if there are any other issues that we should consider for inclusion in our consolidated and modernised hate crime legislation for Scotland.

Question 35:

What else do you think the Scottish Government could include in its proposals to update Scottish hate crime legislation?