Independent review of hate crime legislation in Scotland: final report
Recommendations by Lord Bracadale to Scottish Ministers with analysis of his consultation exercise and an overview.
When, in January 2017, Annabelle Ewing, Minister for Community Safety and Legal Affairs, appointed me to conduct an independent review of hate crime legislation in Scotland, she said, Racism, intolerance and prejudice of all kinds are a constant threat to society, and while Scotland is an open and inclusive nation, we are not immune from that threat…This review will help ensure we have the right legislative protection in place to tackle hate crime wherever and whenever it happens.
While the review was ongoing examples of hate crime and offences of stirring up hatred continued to make the news. Earlier this year there were reports of a 'Punish a Muslim' campaign offering point-based 'rewards' for those who attack and abuse Muslims, including 'verbal abuse', pulling head-scarves off, beating up a Muslim, 'butchering' a Muslim and burning a mosque. In March 2018, Amnesty International published '#ToxicTwitter'  , a report about violence and abuse directed towards women on Twitter. The report, which looked around the world, included detailed case studies in relation to Scottish politicians, including First Minister Nicola Sturgeon, Conservative Party leader Ruth Davidson and former leader of the Labour Party in Scotland, Kezia Dugdale. In her interview with Amnesty International, the First Minister noted the likely impact of this abuse on others:
What makes me angry when I read abuse about me is that I worry that it puts the next generation of young women off politics. So, I feel a responsibility to challenge it, not so much on my own behalf, but on behalf of young women out there who are looking at what people say about me and thinking, I don't want to ever be in that position.
Of course, legislation will not change attitudes on its own but it can do two things. First, clearly-defined hate crime legislation and well-developed procedures in the criminal justice system to deal with it will increase awareness of hate crime and give victims more confidence that it will be taken seriously by the police, prosecutors and the courts. Secondly, it can contribute to attitudinal change. Receiving an honorary degree at Newcastle University, Martin Luther King said:
Well, it may be true that morality cannot be legislated but behaviour can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can restrain him from lynching me; and I think that is pretty important also. And so, while the law may not change the hearts of men, it does change the habits of men if it is vigorously enforced, and through changes in habits, pretty soon attitudinal changes will take place and even the heart may be changed in the process.
My appointment was part of the follow-up to a report by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion, published in 2016. The report was wide-ranging and looked at education, public and community services and other areas, as well as the criminal justice system. Amongst other things, it recommended that the Scottish Government should lead discussion on the development of clearer terminology around hate crime and consider whether there should be any additions to the existing protected characteristics of race, religion, disability, sexual orientation and transgender identity. Part of my wide-ranging remit was to address these issues.
At every stage of the review I spent a lot of time listening to people. I met, not only with people involved in the criminal justice system, but also with those affected by hate crime. That allowed me to gain a good understanding of the impact of hate crime and what I learned has informed my review. While much of the review is of a legal and technical nature, I have tried to make it as accessible as possible. In addition to this full report, my team has prepared a leaflet explaining what the review is about and setting out its recommendations.
I recognise that not everybody will be happy with the recommendations that I make. Some may think that they fall short of their expectation; others may think that they go too far in interfering with the freedom of the individual and freedom of speech. But, all can rest assured that their views have made a valuable contribution to what has been a wide-ranging review.
Responses to prejudice-driven conduct
There is a range of responses to prejudice-driven conduct. Some low level expressions of prejudice or bias will not be subject to any legal action at all. Some regulation may be voluntary. In some situations, for example, in the workplace, or on public transport, the civil law has a role in addressing discrimination, mainly under the Equality Act 2010.
Some conduct is by its nature so morally wrong and harmful that it must be dealt with by the criminal law. Hate crime legislation has developed as the means by which the criminal law addresses prejudicial conduct.
What is hate crime?
I have used this definition of hate crime:
Offences "which adhere to the principle that crimes motivated by hatred or prejudice towards particular features of the victim's identity should be treated differently from 'ordinary' crimes." 
The criminal law recognises a number of identity-based 'protected' characteristics. Currently, as noted above, these are: race, religion, disability, sexual orientation and transgender identity. The definition is qualified in the sense that it is not necessary to prove motivation: it is sufficient if, in committing an offence, the perpetrator demonstrates hostility (currently, in Scotland, referred to as 'malice and ill-will') in relation to the protected characteristic shared by the victim.
Why have hate crime legislation?
On the basis of all the information before my review I identified three clear reasons to justify having hate crime legislation:
- The harm which hate crime causes: it has a profound effect on the victim and the community group to which the victim belongs.
- The symbolic function which legislation fulfils: it sends a clear message to the victim, the group of which the victim is a member, and wider society, that criminal behaviour based on bias and inequality will not be tolerated.
- The practical benefits from having a clear set of rules and procedures within the criminal justice system to deal with hate crime. This should provide a structure for consistency in sentencing and rigorous recording, allowing statistics to be kept, and trends to be identified and monitored; the fact that the perpetrator has committed a hate crime should be reflected in his/her criminal record; it will increase awareness of hate crime, encouraging reporting of offences and ensuring that victims of hate crime will be supported throughout the criminal justice process.
In the course of the review, I have recognised that many parts of the current hate crime legislation work well and should be retained. Where the evidence pointed to a need for change I have made specific recommendations. I have also taken note of developments in policy and procedure which are not directly within my remit but have a bearing on the recommendations which I make.
The legislative scheme which I envisage for tackling hate crime comprises an existing baseline offence and a statutory aggravation reflecting identity hostility. Although a statutory aggravation could apply to any offence, typical examples would be assault, threatening or abusive behaviour and vandalism. I think that this is the clearest and most effective way to mark out hate crime and my recommendations reflect that. I am also recommending that there should be a suite of stirring up of hatred offences extending to all protected characteristics. In the next section I set out my recommendations with references to the relevant chapters of the report.
It will be a matter for the Scottish Ministers to decide whether to accept all or any of my recommendations. My report is intended to enable Scottish politicians to debate the issues involved and to encourage public discourse. I hope that the review has made some contribution to tackling the very real and pernicious problem of hate crime, both online and in the physical world, and I am grateful to all who participated in it.
Alastair P. Campbell
List of recommendations
Current statutory aggravations: chapter 3
Statutory aggravations should continue to be the core method of prosecuting hate crimes in Scotland.
The two thresholds for the statutory aggravations are effective and should be retained but with updated language. They should apply where:
- at the time of committing the offence, or immediately before or after doing so, the offender demonstrates hostility towards the victim based on the protected characteristic; or
- the offence is motivated (wholly or partly) by hostility based on the protected characteristic.
It should remain the case that evidence from a single source is sufficient evidence to establish the aggravation.
Offending behaviour which involves the exploitation of perceived vulnerabilities should not be treated as a hate crime. (But see recommendation 11.)
The drafting of any replacement for section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 should include 'intersex' as a separate category rather than a sub-category of transgender identity.
Consideration should be given to removing outdated terms such as 'transvestism' and 'transsexualism' from any definition of transgender identity (without restricting the scope of the definition).
The statutory aggravations should also apply where hostility based on a protected characteristic is demonstrated in relation to persons who are presumed to have the characteristic or who have an association with that particular identity.
I do not consider it necessary to create a statutory aggravation to cover hostility towards a political entity.
I do not consider it necessary to extend the religious aggravation provision to capture religious or other beliefs held by an individual rather than a group.
Where a statutory aggravation is proved, the court should be required to state that fact expressly and it should be included in the record of conviction. The aggravation should be taken into account in determining sentence.
There should no longer be an express requirement to state the extent to which the sentence imposed is different from what would have been imposed in the absence of the aggravation.
Additional characteristics: chapter 4
There should be a new statutory aggravation based on gender hostility.
Where an offence is committed, and it is proved that the offence was motivated by hostility based on gender, or the offender demonstrates hostility towards the victim based on gender during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by gender hostility. The court would be required to state that fact on conviction and take it into account when sentencing.
There should be a new statutory aggravation based on age hostility.
Where an offence is committed, and it is proved that the offence was motivated by hostility based on age, or the offender demonstrates hostility towards the victim based on age during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by age hostility. The court would be required to state that fact on conviction and take it into account when sentencing.
The Scottish Government should consider the introduction, outwith the hate crime scheme, of a general aggravation covering exploitation and vulnerability.
I do not consider it necessary to create a statutory aggravation to cover hostility towards any other specific new groups or characteristics.
Stirring up hatred: chapter 5
Stirring up of hatred offences should be introduced in respect of each of the protected characteristics including any new protected characteristics.
Any new stirring up of hatred offences should (a) require conduct which is threatening or abusive; and (b) include a requirement (i) of an intention to stir up hatred, or (ii) that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.
The current provisions in relation to stirring up racial hatred under the Public Order Act 1986 should be revised and consolidated in a new Act containing all hate crime and stirring up of hatred legislation.
Any replacement for the stirring up of racial hatred provisions should (a) require conduct which is threatening or abusive; and (b) include a requirement (i) of an intention to stir up hatred, or (ii) that having regard to all the circumstances hatred in relation to the particular protected characteristic is likely to be stirred up thereby.
A protection of freedom of expression provision similar to that in sections 29J and 29JA of the Public Order Act 1986 and section 7 OBFTCA should be included in any new legislation relating to stirring up offences.
Online hate: chapter 6
Recommendations 9 (gender hostility) and 13 (stirring up) will form part of an effective system to prosecute online hate crime and hate speech.
I do not consider any further legislative change necessary at this stage. However, I would encourage the Scottish Ministers in due course to consider whether the outcomes of the Law Commission's work on online offensive communications identify any reforms which would be of benefit to Scots criminal law across reserved and devolved matters.
Section 50A: racially aggravated harassment: chapter 7
Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed.
OBFTC Act: chapter 8
No statutory replacement for section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is required.
I do not consider it necessary to create any new offence or statutory aggravation to tackle hostility towards a sectarian identity (insofar as that is different from hostility towards a religious or racial group) at this stage. The conclusions of the working group which has been appointed to consider whether and how sectarianism can be defined in law will provide Scottish Ministers and Parliament with the basis to debate how best to deal with offences of a sectarian nature in due course. That debate might include consideration of whether any such offences should be classed as a form of hate crime or treated as something distinct.
Consolidation: chapter 9
All Scottish hate crime legislation should be consolidated.
Procedural issues: chapter 10
No legislative change is required in relation to the support given to victims of hate crime offences. However, I note and commend the practical measures being taken to create a more coordinated response to reporting, preventing and responding to hate crime offences.
No legislative change is required in relation to the provision of restorative justice and diversion from prosecution services. However, I encourage practitioners to take note of, and learn from, developing practice in this area.
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