REPORT OF CROSS-PARTY WORKING GROUP ON RELIGIOUS HATRED
Chapter 5 The Way Forward: Conclusions and Recommendations
5.01 We have set out in Chapter 2 the issues and have detailed in Chapter 4 current initiatives to promote respect and tackle religious hatred. Modern Scotland has no place for narrow-minded religious bigotry and we commend all those people who are working together to promote diversity and respect.
5.02 At our first meeting, after agreeing our remit, we agreed that our work should focus on the following questions:
- Is further legislation required in Scotland and, if so, how might such legislation work in practice to provide protection both between religions and in the sectarian context?
- Would such legislation make it significantly easier than at present for the police, prosecutors and the courts to pursue cases involving religious hatred and punish offenders?
- Should any legislation cover incitement to religious/sectarian hatred or should it be restricted to providing a statutory aggravation for existing offences?
- Could pro-active non-legislative initiatives (such as further/revised guidance from the Lord Advocate) deliver the same message of reassurance and deterrence without the potential legislative and enforcement difficulties?
Below we set out our deliberations on each of these questions in turn.
Is further legislation required in Scotland and, if so, how might this legislation work in practice to provide protection both between religions and in the sectarian context?
5.03 There are many good arguments in favour of legislation. There is certainly a perception that the arrangements we currently have in Scotland are not providing adequate protection against crimes involving religious hatred. The main arguments which have been put forward in favour of legislation are as follows:
- it would send out a clear signal that Scotland will not tolerate religious or sectarian hatred;
- it would be a way for the Scottish Parliament to take a meaningful role in fighting religious hatred;
- it would focus attention on the issue and might therefore strengthen the effect of educational and administrative measures;
- it would bring the law on offences motivated by religious or sectarian hatred more into line with racially-motivated offences and more into line with the law in England and Wales - the lack of such a law could be seen as condoning religious or sectarian hatred;
- it would strengthen the arm of the police and football clubs in dealing firmly with any trouble arising from sectarian marches or football matches;
- it would trigger the keeping of statistics on the subject;
- it would oblige judges to show greater consistency in sentencing;
- it is advocated by some religious groups from both Christian and non-Christian faiths; and
- it is advocated by a number of organisations with experience in this field including CRE as a member of the group and Nil By Mouth who presented evidence.
5.04 Common law in Scotland already covers assaults and abusive, insulting or threatening behaviour. It also allows for religious hatred as an aggravating factor to such offences when considering sentence. Where cases are prosecuted on indictment, the maximum penalty for common law offences is life imprisonment. On the face of it, the existence of these provisions would seem to argue against the need for new legislation provided they are used regularly. There is, however, inadequate evidence to enable us to make a judgement as to whether the common law is effective and some of the Group were strongly in favour of new legislation. On balance, with some members reserving their position, it was agreed that the current legal framework needs adjustment in order to ensure that any element of religious or sectarian hatred in any particular crime is always recorded, so that offences are prosecuted in a consistent manner. The Group were unanimously agreed that whilst there is anecdotal evidence about the use of the existing law it is essential that detailed statistics of cases involving religious or sectarian hatred are properly kept and made available. We do not think that legislation can be effective without the cultural and attitude change that is required to eradicate religious hatred and prejudice from our society but we can see strong arguments in favour of legislation when a suitable opportunity becomes available, as part of a package of other measures.
Would such legislation make it significantly easier than at present for the police, prosecutors and the courts to pursue cases involving religious hatred and punish offenders?
5.05 Participants from the Association of Chief Police Officers in Scotland and from the Crown Office both told us that, in their view, legislation on the lines proposed would, in practice, make their pursuit of offences involving religious hatred more difficult. The police doubted whether new legislation would be workable or enforceable in circumstances such as a large crowd situation. The Crown Office pointed to the dangers of a statutory offence paradoxically leading to fewer convictions than the present arrangement, as it would be more difficult to prove a statutory aggravation than an existing offence at common law. Much time in court could be spent arguing for example whether certain verbal expressions fell within the definition of a statutory offence. Much time could also be spent arguing about the definition of "religion", and how far it might cover various personal philosophies. At present the courts do not have to consider such matters when determining a person's guilt but instead can take the circumstances into account when imposing sentence. We recognise the force of these arguments, but we consider that legislation would provide much needed clarity about the seriousness with which the law views offences motivated by religious hatred and would also facilitate the keeping of the records and statistics required to monitor the effectiveness of the law. Furthermore there was a serious lack of evidence that the present law was demonstrably taking into account sectarian and religious hatred aspects of offences.
Should any legislation cover incitement to religious/sectarian hatred or should it be restricted to providing a statutory aggravation for existing offences?
5.06 We heard arguments which favoured legislation covering incitement to religious hatred, in terms of sending a signal and protecting faith communities. One of our number was particularly in favour of legislation on incitement. However, we believe there could be particular problems relating to freedom of speech under legislation covering incitement to religious hatred. A law against incitement to religious hatred could conceivably be used to prevent public preaching that the adherents of other faiths were in error. A law against incitement to religious hatred might also hinder people from discussing openly their concerns about particular religious practices that they might regard as harmful, whether within their own or another faith. We therefore concluded that no specific offence of incitement should be proposed.
5.07 Religion may be different from race in that people have a choice about what they believe and the actions they take as a result of those beliefs. Where an individual believes that any other particular set of beliefs is flawed and the adherents of that religion are in error, we are of the view that such an individual should be able to say so without fear of a law on incitement to religious hatred. Too forceful an expression of views, for example an incident involving threatening behaviour, could still be prosecuted as a breach of the peace under common law. We believe this would be the right approach rather than making religious incitement itself an offence. The same criticism could not, however, be levelled against a statutory religious aggravation of the existing range of offences.
Could pro-active non-legislative initiatives (such as further/revised guidance from the Lord Advocate) deliver the same message of reassurance and deterrence without the potential legislative and enforcement difficulties?
5.08 As a Group, we feel that there is a great deal which could and should be done whether or not there is legislation to deliver a strong message of reassurance and deterrence. In the context of the criminal law, we believe that the police should always record any evidence of religious motivation or hatred when an offence is alleged. We also believe that prosecutors should always bring this matter to the attention of the court.
5.09 In light of our detailed consideration of the issues involved, we believe that there is a strong case for some form of legislation to ensure that aggravation based on religious prejudice is taken into account when sentencing the accused. However, we also believe strongly that legislation should form part of a package with other measures to discourage the expression of religious hatred. Without a package of enforcement measures, as well as situational and social prevention, legislation alone is unlikely to have much effect. We would therefore recommend the following to the Executive and other bodies.
The Lord Advocate should issue up-to-date detailed guidelines to the police on their handling of alleged offences, including specific consideration of any motivation of religious hostility, to ensure that any element of religious motivation or hatred is fully recorded in their report to the Procurator Fiscal.
The Crown Office should update its guidelines to prosecutors to ensure that any religious elements in an offence are brought before the court and are not withdrawn in return for an accused agreeing to plead guilty to a lesser offence during plea negotiation.
The Crown Office should establish suitable methods to record the incidence of religious motivation in offences prosecuted and the outcome of each case (including whether the accused was convicted and the sentence received).
Religious hatred is a complex problem, enmeshed as it can often be in a mixture of cultural, political, historical and racial identities. The Scottish Executive should commission research which will provide a statistical and descriptive baseline of incidents of religious and sectarian hatred and which can set this within the wider context of hate crime and violence more generally. Any such research should be able to follow cases through the criminal justice system, from reporting to the police to disposal in the courts. It would be essential that any such research should seek to understand the motivation of offenders and the impact on their victims in order to inform future initiatives designed to combat religious hatred. Research should also be commissioned into contemporary sectarianism to augment the historical research already available and to provide information as to which approaches to tackling these problems might be effective. Additionally all projects and programmes designed to reduce sectarian attitudes should be the subject of evaluation so that best practice can be spread rapidly and effectively.
5.10 Football clubs and the Scottish Football Association are independent of the Scottish administration and they have commercial as well as sporting objectives. Football clubs have already begun to demonstrate their willingness to think constructively about sectarianism. With the support of the other measures outlined in this report, we hope that they can accept and act on the following recommendations.
In their licensing scheme, the Scottish Football Association should not only make it a condition of licence that clubs have policies against sectarian behaviour but also that the clubs take steps vigorously to enforce those policies at matches. Failure to do so should carry penalties up to, and including, the loss of a licence. Clubs should be required to report on the measures and the effectiveness of measures in tackling sectarianism. The police, in liaising with the clubs and the SFA, should also report on these matters.
Football clubs should take specific action against supporters indulging in insulting sectarian behaviour, for example by excluding them from the ground for one or more matches through the confiscation of season tickets or reducing seat allocations to supporters' clubs where a member of that club has behaved in an unacceptable way. In liaison with the police, clubs should take steps to ensure increased effectiveness of monitoring and subsequent discipline of supporters who use sectarian behaviour at away matches. The clubs should publicise the numbers of people who have been warned or suspended or banned from matches as the result of unacceptable behaviour and the names of those banned as a result of such behaviour.
The police, Procurators Fiscal and football clubs should share information in order to identify and deal with those supporters who are charged with or convicted of offences at or near football grounds including those involving an element of religious hatred. In particular, the police should, as soon as is practicable, inform a supporter's home club if they arrest that supporter for such an offence. Procurators Fiscal should inform a supporter's home club of any action that is being taken against the supporter. If a football supporter is convicted of any offence committed in the context of a football match, then the Sheriff Clerk should inform that supporter's home club at the time of conviction.
Given the evidence of lower levels of offending of all forms when Old Firm matches are held with an early start this should, as far as possible, become the norm.
The Group was advised that the availability of sectarian material for sale outside football grounds adds to provocation. All local authorities should therefore licence Street Traders and should use their powers to attach conditions to such licences preventing street traders from selling any offensive sectarian material in the context of football matches. The police should monitor the adherence of street traders to the terms of their licence and report any breaches to the local authority who should act by suspension of licence.
5.11 We believe that, in the long term, education and debate must help to loosen the hold of religious hatred on individuals and communities. In the meantime, we believe that those agencies which have to deal with the manifestations of religious hatred must approach the problem together. It is also vital that there is an ongoing forum to evaluate the success of the measures outlined in our recommendations.
The police, the Crown Office, the Scottish Executive, local authorities, relevant voluntary organisations, the Scottish Football Association and the Old Firm clubs should join together at senior level to co-ordinate and monitor a continuing response to religious hatred as it affects their individual responsibilities. They should develop policies to spotlight and target religious intolerance. They should also evaluate the progress and effectiveness of the work undertaken in response to our recommendations . This Group should provide the Scottish Executive with a snapshot report after a year. This report should be presented to the Scottish Parliament.
The co-ordinating group should seek to encourage, sponsor and evaluate project programmes and research designed to change sectarian and other aspects of religious hatred.
Following the evaluation of the current advertising campaign promoting a tolerant society the Scottish Executive should consider a campaign to promote a Scotland free from religious hatred.