Scottish crime recording standard: crime recording and counting rules

Section 'I' - Hate Incidents and Hate Crimes

Note - At time of publication of the Scottish Crime Recording Standard Manual the Hate Crime and Public Order (Scotland) Bill had not been introduced into law.

Hate Incidents

There will be occasions when incidents occur where no crime has been committed but the incident itself is perceived to have been motivated due to hate or prejudice. In such cases these incidents will be recorded as hate incidents.

Perception

In terms of the perception element consideration must be given to:

• who perceived the circumstances to amount to being a hate incident/crime; and
• why it was perceived to be a hate incident/crime

Hate Crimes

A Hate crime is defined as 'A crime motivated by malice or ill-will towards a social group'.

Key aspects of hate crime are as follows:-

• there must be active ill will or elements of vindictive feelings towards an individual or their perceived association with a social group;
• the crime is based on the motivation of malice or ill will towards a social group – this means the question of whether the victim of a hate crime actually belongs to a social group or not, is irrelevant, for example, if someone is the victim of a homophobic attack, whether they are gay or not is irrelevant;
• an individual may be targeted because of their vulnerability – this should not be automatically interpreted as hate crime, for example, an elderly female who is assaulted and robbed may have been targeted because she is vulnerable, as opposed to being targeted due to ill will or malice towards her belonging to a specific social group;
• if a crime is reported and is perceived to be motivated by hate by the victim or any other person, including a police officer, it should be recorded and investigated as such; and
• statutory legislation exists which creates an aggravation of any criminal offence against a person or their property when motivated wholly or part by an offender's hatred of someone because of their perceived:-

Disability

Where a crime or incident is perceived by the victim or any other persons to have been motivated by disability, actual or perceived. The term 'disability' will be recognised as physical or mental impairment which has a substantial and long term adverse effect on a person's ability to carry out normal day to day activities.

Transgender Identity

Any crime or incident perceived by the victim or any other person to have occurred or have been motivated by an individual's believed identity.

Race, Colour, Ethnic Origin, Nationality or National Origin

Any crime or incident perceived by the victim or any other person to have been motivated due to a victims race, colour, nationality (including citizenship), ethnic or national/cultural origins including Gypsy Travellers. This will also include incidents where it is perceived that an individual or group are associated with any of these categories.

Religion or Belief

An crime or incident perceived by the victim or any other person to have been motivated by malice or ill-will based on the victim's association, or perceived association with a particular religious group, or a group with a perceived religious affiliation. This includes instances of sectarianism.

Sexual Orientation

Any crime or incident perceived by the victim or any person to have occurred or have been motivated by an individual's believed sexual orientation. The victim need not necessarily be a member of that social group, for example, a straight man leaving a gay club and being subject to homophobic abuse would still be a hate crime due to the motivation that the perpetrator believes that the man is gay by reason of his perceived association with the gay club.

Although there is no specific legislation which creates a specific offence in relation to the characteristics of 'age' or 'gender', it is important to recognise that people may suffer discrimination, victimisation and harassment at any age or whatever gender they may be, particularly if they are perceived as being vulnerable. If a victim were to be targeted specifically due to their age or gender, this can be treated as a common law aggravation by the court.

Examples of Hate Crimes and Recording Practices

Example 1

Person reports being subjected to verbal abuse perceived to be racially motivated.

(a) This conduct was not witnessed by others.

Record 1 Criminal Justice and Licensing (Scotland) Act 2010, Section 38, Threatening or Abusive Behaviour (with Racial aggravator). Note - there is no corroboration to the racially aggravated conduct so the Criminal Law (Consolidation) (Scotland) Act 1995, Section 50A offence is not relevant.

(b) This conduct was witnessed by others.

Record 1 crime of Criminal Law (Consolidation) (Scotland) Act Section 50A, Racially Aggravated Conduct (with Racial aggravator). Note - corroborative evidence of racially aggravated conduct justifies recording under Section 50A.

Example 2

Person reports a brick having been thrown at their living room window, breaking same and perceives this to be racially motivated providing reasons for same.

Record 1 Criminal Law (Consolidation) (Scotland) Act 1995, Section 52 Vandalism (with Racial aggravator).

Example 3

Person reports a slogan perceived to be racially motivated has been scratched into the bodywork of their car.

Record 1 Criminal Law (Consolidation) (Scotland) Act 1995, Section 52 Vandalism (with Racial aggravator).

Example 4

Person reports being assaulted. No comments are made by the assailant but the incident is perceived to be racially motivated.

Record 1 crime of Assault (with Racial aggravator).

Example 5

Person reports being assaulted. Comments made by assailant were perceived to be racially motivated and were uncorroborated.

Record 1 crime of Assault (with Racial aggravator). Note - no requirement to record a crime for the comments made which are subsumed into the assault.

Example 6

Person reports being assaulted. Comments made by assailant were perceived to be racially motivated and were corroborated by witnesses.

Record 1 crime of Assault (with Racial aggravator). Note - no requirement to record a crime for the comments made which are subsumed into the assault.

Example 7

Disabled person reports being shouted and sworn at where comments made were perceived to be motivated by prejudice towards their disability.

Record 1 crime of Criminal Justice and Licensing (Scotland) Act 2010, Section 38, Threatening or Abusive Behaviour (with Disability aggravator).

Example 8

Deaf person reports someone mimicking Sign Language towards them in an offensive manner which is perceived to be motivated by prejudice towards their hearing impairment.

Record 1 crime of Criminal Justice and Licensing (Scotland) Act 2010, Section 38, Threatening or Abusive Behaviour (with Disability aggravator).

Example 9

Person is assaulted. During the assault the assailant makes comments which were perceived to be motivated by prejudice towards their transgender identify.

Record 1 crime of Assault (with Transgender aggravator).

Example 10

Person has comments scratched into the bodywork of their car. The comments were perceived to be motivated by prejudice towards their sexual orientation.

Record 1 crime of Criminal Law (Consolidation) (Scotland) Act 1995, Section 52 Vandalism (with Sexual Orientation aggravator).

Example 11

Suspect who is caught stealing goods from a shop makes a comment perceived to be racially motivated to a member of staff which is not corroborated.

Record 1 crime of Theft by Shoplifting.

Record 1 crime of Criminal Justice and Licensing (Scotland) Act 2010, Section 38, Threatening or Abusive Behaviour (with Racial aggravator). Note - the uncorroborated racial comment is a separate crime which cannot be subsumed into the shoplifting and must be recorded separately. If corroborated Criminal Law (Consolidation) (Scotland) Act 1995, Section 50A would be recorded in preference to Section 38.

Example 12

Suspect who is caught stealing goods from a shop assaults a member of staff and makes a comment perceived to be racially motivated which is corroborated.

Record 1 crime of Theft by Shoplifting.

Record 1 crime of Assault (with Racial aggravator). Note - the Assault is a separate crime which cannot be subsumed into the shoplifting and must be recorded separately. Note - no requirement to record a crime for the comment made which is subsumed into the assault.

On 24 March 2010 the Offences (Aggravation by Prejudice) (Scotland) Act 2009 was introduced which makes provisions about the aggravation of offences by prejudice relating to disability or to sexual orientation or transgender identity.