Hate crime is behaviour which is motivated by hatred, malice, ill-will or prejudice towards people because they form part of a specific group, such as people of a particular race or sexual orientation.
A lot of common hate crime behaviour would be criminal even if there was no specific legislation to deal with it. For example, it is a criminal offence at common law in Scotland to assault another person.
However, Parliament has passed legislation which means that where an offender has been convicted of another offence (e.g. assault, breach of the peace) and it is proved that the offence was aggravated by a particular form of prejudice, the court must record this and take the aggravation into account when determining sentence. These provisions are known as statutory aggravations. They ensure that levels of hate crime are recorded and send a signal that society does not accept this form of conduct.
Scottish criminal law currently includes statutory aggravations based on:
- race: section 96 Crime and Disorder Act 1998
- religion: section 74 Criminal Justice (Scotland) Act 2003
- disability: section 1 Offences (Aggravation by Prejudice) (Scotland) Act 2009
- sexual orientation and transgender identity: section 2 Offences (Aggravation by Prejudice) (Scotland) Act 2009
Parliament has also enacted a number of standalone hate crime offences. These offences target different forms of unacceptable behaviour specifically because that behaviour is motivated by hatred, malice, ill-will or prejudice towards people because of the group they belong to.
At present, these offences are:
- racially aggravated harassment: section 50A Criminal Law (Consolidation) (Scotland) Act 1995
- offensive behaviour in relation to a regulated football match which is likely or would be likely to incite public disorder: section 1 Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012
- threatening communications: section 6 Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012
- offences under sections 18, 19 and 23 Public Order Act 1986 which prohibit the use of threatening, abusive or insulting words, behaviour or written material which will stir up racial hatred. For example, there have been successful prosecutions under these provisions in relation to the publication of material relating to Holocaust denial
Lord Bracadale will be considering the full range of existing legislation in order to reach a view on whether it is the most effective way for the justice system to deal with conduct motivated by hatred, malice, ill-will or prejudice.