1. Legislation used to record hate crime and existing data sources
Several pieces of legislation are currently used to record hate crime in Scotland.
Racially aggravated offences are defined as any offence of racially aggravated harassment and behaviour in terms of Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, any offence concerning the stirring up of racial hatred at Sections 18, 19 or 23(1)a of the Public Order Act 1986 or any offence that includes a racial aggravation in terms of Section 96 of the Crime and Disorder Act 1998.
In order to prove the specific charge of racially aggravated harassment or behaviour, two sources of evidence are required - whereas evidence from a single source is sufficient to prove a racial aggravation when it is attached to the libelling of another substantive charge (such as threatening or abusive behaviour, or an assault).
Religiously aggravated offences are defined as offences that include an aggravation of religiously motivated behaviour in terms of Section 74 of the Criminal Justice (Scotland) Act 2003.
Sexual orientation aggravated offences are defined as offences that include an aggravation of prejudice relating to sexual orientation in terms of Section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009.
Disability aggravated offences are defined as offences that include an aggravation of prejudice relating to disability in terms of Section 1 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009.
Transgender identity aggravated offences are defined as offences that include an aggravation of prejudice relating to transgender identity in terms of Section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009.
Independent review of hate crime legislation
In January 2017, Lord Bracadale was appointed by the then Minister for Community Safety and Legal Affairs to undertake an independent review of hate crime legislation in Scotland in response to recommendations made by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion.
Lord Bracadale considered whether existing hate crime law represented the most effective approach for the justice system to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice.
On 31 May 2018, Lord Bracadale published his review and Scottish Ministers accepted his recommendation to consolidate hate crime legislation into one new hate crime statute. The report and recommendations were used as the basis for consulting on the detail of what should be included in a new hate crime bill and a fourteen week public consultation was launched on 14 November 2018.
Existing data sources
There are several established sources of information on hate crime in Scotland. These include:
- The Crown Office and Procurator Fiscal Service (COPFS) annual Official Statistics on Hate Crime in Scotland. These figures relate to charges aggravated by race, religion, sexual orientation, disability or transgender identity, reported to COPFS, and include information on how those charges were proceeded.
- Scottish Government research on Religiously Aggravated Offending in Scotland. This is based on analysis of charges reported to the COPFS under Section 74 of the Criminal Justice (Scotland) Act 2003 , which were aggravated by religious prejudice.
- The Scottish Government's annual National Statistics on Criminal Proceedings in Scotland. This includes convictions with an aggravator recorded against the main charge. Two of the aggravators for which data is published relate to racially aggravated and religiously aggravated crimes (broken down by crime type and gender of the perpetrator).
- The Scottish Government's annual National Statistics on Recorded Crime in Scotland. This includes offences of racially aggravated harassment and racially aggravated conduct, under Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, recorded by the police. This does not include cases where racism was considered an aggravator to any other types of crime (such as an assault, vandalism, etc.) as it is not possible to distinguish these cases within the recorded crime data.
- The Scottish Government's National Statistics from the Scottish Crime and Justice Survey (SCJS). Respondents are asked whether they thought any particular (perceived or actual) characteristic they hold may have motivated the offender in any incidents of crime or harassment. Characteristics include gender / gender identity or perception of this, ethnic origin / race or perception of this, religion or perception of this, sectarianism, disability / condition or perception of this, sexual orientation or perception of this.
- The Scottish Government's National Statistics from the Scottish Household Survey. Respondents are asked if they have experienced any kind of discrimination or harassment, in the last three years, whilst in Scotland. Discrimination was defined in the survey as: occasions when you felt you were treated unfairly or with less respect than other people because of your age, gender, ethnic group, religion, disability, sexual orientation or for sectarian or other reasons. Harassment was defined in the survey as: occasions when you have felt intimidated, threatened or disturbed because of your age, gender, ethnic group, religion, disability, sexual orientation or for sectarian or other reasons.
The publications described above are based on a varied range of data sources. These sources count and classify activity in different ways, and refer to different stages of the justice system. As such, we would not automatically expect them to match up and would urge caution when making comparisons.
The data sourced from the IVPD, which is presented in section 3 of this report, covers hate crimes which have been reported to the police. As such, they provide a broader measure of hate-related activity than several of the sources noted above. For example hate crime charges and criminal proceedings only refer to cases which have been reported to COPFS. In contrast, data from the IVPD is not as broad as that from a national survey (such as the SCJS), as not all hate crimes will be reported to the police.