REPORT OF CROSS-PARTY WORKING GROUP ON RELIGIOUS HATRED
Chapter 3 Law and Order
The Law in Scotland
3.01 The common law in Scotland covers offences such as murder and assault. It also covers abuse and intimidation: anyone who behaves in a threatening, abusive or insulting manner may be committing a breach of the peace in Scotland. The maximum sentence for common law crime prosecuted on indictment is life imprisonment and an unlimited fine. The common law provides that a circumstance in a criminal case which adds to the seriousness of the offence is to be regarded as an aggravation.
3.02 The High Court of Justiciary has stated that religious/sectarian aggravations should be taken into account when sentencing. Decisions of the High Court of Justiciary are binding on all lower courts. In the case of HMA v Longstaff the accused was convicted of assault to severe injury, permanent disfigurement and attempted murder. In refusing an appeal against a sentence of 10 years' imprisonment the High Court stated:
"It is quite clear to us that mindless violence with at least a strong hint of sectarianism requires a severe and deterrent sentence. Indeed the only matter that concerned us in this case is whether a sentence of 10 years' imprisonment is sufficient."
3.03 It is not currently possible to quantify the extent to which religious/sectarian motivation is involved in offences tried in the courts in Scotland because statistics are not collected on religious hatred as a factor in criminal activity. We believe that this is a shortcoming in the justice system and that statistics on religious aggravation should be collected.
3.04 In September 1998 the then Scottish Office issued guidance on the Crime and Disorder Act 1998 provisions on racially-aggravated offences. This guidance referred to religiously-motivated crime, saying: "Where there is no evidence of racial hostility but there is evidence of religious motivation or hostility this should also be brought to the attention of the court. The court might consider this as an aggravating factor in sentencing."
3.05 The Lord Advocate has issued guidelines to the police on the handling of racially-motivated incidents. Procurators Fiscal are also issued with extensive guidance that generally prohibits the deletion of any reference to the racial elements from any offence as part of plea negotiation. However, no such instructions, either to the police or to Procurators Fiscal, have been issued in connection with any religious motivation to an incident. Given that there is no record kept of religiously-motivated or aggravated offences, it is impossible to say whether in practice Procurators Fiscal and the police are treating these incidents as seriously as they should.
3.06 We have seen how the risk of sectarian violence is particularly pronounced at certain football matches and in the surrounding community before and after these matches. Because of the policing and stewarding at Old Firm and other matches, earlier kick-off times and a ban on alcohol at football grounds and on public transport, the risk of violence is now generally lower during the match than in the community before and after the match. The primary function of the police at football matches and other such events is to ensure public safety. While there may be a number of technical offences being committed at a football match, involving insulting or abusive behaviour, we appreciate the police reluctance to make arrests unless there is a heightened risk of public disorder. The police consider that making an arrest for every technical breach of the peace would tie up their resources and restrict their ability to deal with public safety issues. Each arrest takes at least two police officers away from general crowd control. The police take the pragmatic view that they must concern themselves with the results of any sectarian emotion, not with the emotion itself. The police may be aware for example of abusive chants in some section of the crowd. They might judge in particular circumstances that to try to arrest the perpetrators would meet with significant physical resistance and cause serious problems in terms of crowd control. Furthermore, because supporters are segregated from each other at a match there is little opportunity for opponents to respond to those chants with violence at that time. The police might therefore decide not to make arrests.
3.07 The police also maintain a presence at marches and other processions held, amongst others, by the Orange Order and by Irish Republican supporters. Again, they consider that public safety is the over-riding consideration. They have commented that there is usually more trouble from march "followers" than from people who are taking part officially. Again the fact that such incidents are not specifically recorded makes it difficult to ascertain what happens to such persons when they are prosecuted. Courts can, of course, take sectarianism into account as an aggravation when sentencing for disturbances connected with Orange/Republican marches. Local authorities, in liaison with the relevant Chief Constable, have the power under the Civic Government (Scotland) Act 1982 to either prohibit or impose conditions on the holding of marches in their area. They can impose conditions on a march relating to its date, time, duration, route and entry to any public place.
3.08 There is evidence of offensive behaviour associated with some of these marches and we would want the police and prosecutors to take strong action to deal with such behaviour. Some commentators have advocated that all marches of this type should be banned. We do not believe that this is appropriate but minor infractions in the context of such marches can have a disproportionate effect and clear warnings of intent to deal with infractions should be made clear to the organisers and the public.