One Scotland: consultation on current hate crime legislation

Annex A

Lord Bracadale’s Recommendations

Current statutory aggravations – Chapter 3

Recommendation 1

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

Recommendation 2

The two thresholds for the statutory aggravations are effective and should be retained but with updated language.

They should apply where:

• at the time of committing the offence, or immediately before or after doing so, the offender demonstrates hostility towards the victim based on the protected characteristic; or
• the offence is motivated (wholly or partly) by hostility based on the protected characteristic.

It should remain the case that evidence from a single source is sufficient evidence to establish the aggravation.

Recommendation 3

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

Recommendation 4

The drafting of any replacement for section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 should include ‘intersex’ as a separate category rather than a sub-category of transgender identity.

Consideration should be given to removing outdated terms such as ‘transvestism’ and ‘transsexualism’ from any definition of transgender identity (without restricting the scope of the definition).

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.

Recommendation 6

I do not consider it necessary to create a statutory aggravation to cover hostility towards a political entity.

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.

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.

Additional characteristics: chapter 4

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.

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.

Recommendation 11

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

Recommendation 12

I do not consider it necessary to create a statutory aggravation to cover hostility towards any other specific new groups or characteristics.

Stirring up hatred: chapter 5

Recommendation 13

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

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.

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.

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 OBFTCA should be included in any new legislation relating to stirring up offences.

Online hate: chapter 6

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.

Section 50A: racially aggravated harassment: chapter 7

Recommendation 18

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

OBFTC Act: chapter 8

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.

Consolidation: chapter 9

Recommendation 20

All Scottish hate crime legislation should be consolidated.

Procedural issues: chapter 10

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.

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.