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.
Chapter 10 - Procedural Issues
10.1. This chapter looks at various procedural issues which have been raised during the course of the review. The first set of issues deal with support for victims and those affected by hate crime: tackling under-reporting, the effectiveness of third party reporting centres and how key parts of the criminal justice system communicate with victims of hate crime. The second set of issues are concerned with the how the criminal justice system deals most effectively with perpetrators of hate crime. In particular, I consider the potential application of restorative justice techniques.
Support for Victims
10.2. Reporting hate crime and the criminal justice response are integral parts of the implementation of hate crime legislation. An effective suite of hate crime laws must be underpinned and supported by:
- a willingness on the part of victims of hate crime to report it; unless it is reported no prosecution is possible and victims will not receive justice; and
- a criminal justice system that is effective and co-ordinated.
10.3. In the information gathering stage of the review, issues relating to reporting hate crime and the way in which victims were dealt with in the criminal justice system were repeatedly raised. Because of that I included questions on these issues in the consultation paper. I recognise that much of what I have learned from the responses in these areas concerns operational and procedural matters rather than the direct application of legislation and is therefore beyond the remit of this review. It will clearly be for others, namely policy makers and a range of partners in the criminal justice system, to consider how such work is driven forward. I have been advised that there are currently a number of initiatives and programmes in place. By noting these and setting out the key responses to my consultation paper, I hope to stimulate debate and encourage the creation of a strategic approach in the implementation of hate crime legislation.
10.4. It became clear at an early stage of the review that there was a serious problem with under-reporting of hate crime. In chapter 9 of the consultation paper I listed the concerns that had been expressed and sought views as to how levels of under-reporting might be improved. The concerns included a lack of awareness of what hate crime is; an acceptance by people that certain types of abusive conduct was part of daily life and 'just happened to people like us'; not knowing to whom to speak to report the crime or whether anything would come of doing so; a general lack of confidence in the police and a concern that no action would be taken by the criminal justice authorities; and the negative experience of others of criminal proceedings.
Responses to consultation paper
10.5. The analysis report to my consultation paper gives a comprehensive summary of how respondents thought that people could be encouraged to report hate crime. Many respondents told me that it was often unclear to them what hate crime is and how serious the conduct needed to be before it should be reported. Some respondents suggested that clear laws, explained in easily understood language brought together in one place, would enhance understanding of the type of conduct that falls within the meaning of hate crime. If the recommendations of my review are accepted that might go some way to meeting these concerns. Some respondents pointed out the need for education and awareness among the general public, and in specific communities, about what constituted hate crime, how it might be reported and the processes for prosecuting it. It was important to discourage people from accepting hostile or abusive behaviour as the norm.
10.6. There was a general view that a change of culture was needed within the police and criminal justice system in order to improve reporting. There needed to be a clear message conveyed to the public that complaints would be taken seriously and that there would be no negative consequences for individuals who reported hate crimes. Positive experiences and outcomes for those who made complaints would, over time, build trust and confidence in the criminal justice system. The COPFS response to my consultation highlighted that it would be beneficial to: "focus on ways to improve community cohesion and to encourage citizens to recognise and challenge prejudice when it happens in an appropriate manner. Education on rights and responsibilities, for all ages, would be valuable."
10.7. The Cabinet Secretary for Communities, Social Security and Equalities has established a Tackling Prejudice and Building Connected Communities Action Group to take forward a programme of work  in response to the recommendations made by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion  . This group will consider a range of issues including: definitions and terminology; underreporting; third party reporting; hate crime in the workplace; online hate crime; and data and evidence.
10.8. I am pleased to note that the action group is specifically addressing the issue of under-reporting. This work will help to raise awareness and provoke further debate, not only on what constitutes hate crime, but also on the steps that can be taken to prevent incidents.
10.9. I also noted a number of marketing campaigns designed to help to spread key messages. The Scottish Government, in collaboration with Police Scotland and COPFS, sought to increase public understanding and increase reporting through the Hate Has No Home campaign in October 2017. In March 2018 Police Scotland delivered a social media hate crime campaign with the message 'Be Greater than a Hater'. This campaign was aimed primarily at 11-15 year olds, with education as the main focus. Student participation was encouraged through involvement of School link/Campus officers delivering hate crime awareness presentations. The multi-partner National Hate Crime Awareness Week in October 2018 will also offer opportunities to raise public awareness further. I am aware that the Tackling Prejudice and Building Connected Communities Action Group will be considering the impact of such marketing activity as part of its programme of work.
Third Party Reporting Centres ( TPRCs)
Responses to the consultation paper
10.10. In relation to Third Party Reporting Centres respondents were largely supportive of their value, stating that they fulfilled an important role in encouraging reporting by those who might otherwise be deterred from contacting the police because of lack of confidence, mistrust of the authorities, poor previous experience, or difficulty in accessing the police. There was, however, a significant concern expressed by respondents that the current scheme was not working as well as it should be: there was low awareness of it, low usage and variable quality in the service provided.
10.11. Community Safety Glasgow mentioned that they would like to see a Scottish Government initiated sharing of good practice and a knowledge exchange programme for TPRCs. They also suggested that Police Scotland should publish an evaluation of TPRCs as part of their quarterly performance report to the SPA.
10.12. CRER, in addition to expressing concerns about the effectiveness of TPRCs, made a more fundamental point. They cautioned that, in relation to black and minority ethnic groups using a TPRC, there was a risk that this might increase "the gap between police and communities, and leave some groups feeling as though the police simply do not have time for them".
10.13. In addition to the work of the Tackling Prejudice and Building Connected Communities Action Group, noted above, Police Scotland have recently reviewed the effectiveness of the third party reporting scheme across Scotland and are currently implementing an improvement plan which includes measuring effectiveness. Their review has included consultation with several key partners through a 'short life' working group. They advise that there are some potentially helpful and progressive plans which will be put into place. Police Scotland have introduced an 'activity monitoring form' which is to be completed every time a TPRC offers support in relation to hate crime. This information will be collated on a quarterly basis to provide management with statistics on usage and on which protected characteristics feature in the use of the service. The Police Scotland response to my consultation indicates that "the future may see better promotion of the scheme, using fewer centres with enhanced support and better advertising/signposting". Police Scotland is undertaking training and providing guidance to TPRC staff. They recognise the need to build sustainability of this reporting mechanism through having officers as dedicated contact points for TPRCs. I commend these positive moves by Police Scotland which I hope will address calls to improve the consistency and quality of service offered. The data gathering proposals will also provide useful evaluation of the quality of the service provided.
Anonymity for witnesses
Responses to consultation paper
10.14. I have already listed a number of concerns in relation to reporting hate crime which emerged in the course of the information gathering stage of the review. A further concern, particularly expressed by some in the LGBTI community, related to potential publicity if the case was reported by the press and broadcasters. An actual example cited to me was of a transgender person who reported a hate crime to the police and as a result of the subsequent trial was 'outed' in a local newspaper. This had discouraged others in the community from reporting hate crime. In the consultation paper I asked whether respondents considered that in certain circumstances press reporting of the identity of the complainer in a hate crime should not be permitted.
10.15. A large majority of the organisations which responded to this question considered that in certain circumstances the identity of a complainer in a hate crime case should not be published. The views of the individuals who responded were evenly split.
10.16. The respondents who considered that preventing press reporting of the identity of the complainer thought that this would remove a potential barrier to reporting of hate crimes. They noted that complainers may be concerned about further victimisation and retaliation; being shunned by others in their own community; having personal information made public, for example, their LGBTI status; and sensationalised reporting that focused on the victim rather than the perpetrator. Some respondents argued that restrictions on press coverage would make the process of taking a case to court less traumatic for victims. Some also suggested that negative press reporting could have a wider adverse impact on community wellbeing and social cohesion.
10.17. While some favoured a standard approach of anonymity for all hate crime victims, others thought restrictions on press reporting should be judged on a case-by-case basis. They thought this might depend on an assessment of the vulnerability of the complainant, the risk to their safety and wellbeing, or the risk to an individual's right to privacy.
10.18. Those respondents who were opposed to anonymity for victims of hate crime in press coverage considered that it was important that justice 'was seen to be done', that the press should be free to cover court proceedings, and that the public had a right to know the identity of those making complaints. Some did not think that hate crimes should be treated differently to any other crimes, while others thought that protecting the identity of complainants could encourage false accusations.
10.19. The general principle is that justice is administered by the courts in public, is open to public scrutiny and the media are the conduit through which most members of the public receive information about court proceedings  . The ability to identify a person in a story is important. Stories about a particular individual are more attractive to readers than stories about unidentified people  .
10.20. The principle of open justice may, however, be departed from in certain circumstances. Section 11 of the Contempt of Court Act 1981 provides:
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."
10.21. In a recent appeal, the High Court has affirmed that Scottish courts, including the sheriff summary court, have an inherent power to withhold the identity of a complainer where it is in the interests of justice to do so and make an order under section 11  . This is regularly done, for example, in cases of blackmail.
10.22. I consider that it is at least arguable that in certain circumstances the court could withhold the identity of the complainer in a hate crime case from the public and make an order under section 11 of the Contempt of Court Act 1981.
10.23. This issue is plainly outwith the remit of my review. It would not be appropriate to make a recommendation. I would, however, encourage the Scottish Ministers, perhaps through the Tackling Prejudice and Building Connected Communities Action Group, to carry out further research into it.
Communications with victims
Responses to consultation paper
10.24. Among the responses to the consultation paper in relation to the issue of under-reporting of hate crime, there were calls for improved communication between victims, the police and the criminal justice system. Respondents called for improved policies and procedures relating to the reporting, recording, investigating and prosecuting of hate crimes to ensure that relevant cases were correctly identified and progressed as hate crimes, and complainers benefited from regular communication and updates through the course of a case. Communication at all stages of a case was key so that victims were given updates and assurance. CRER called for greater clarity in relation to the point at which the role of the police ends and the prosecution process begins.
10.25. Respondents suggested that there should be guidance and training for those working in the criminal justice system to raise awareness of hate crime and to ensure that cases were dealt with appropriately and promptly, and those reporting crimes were dealt with sensitively, taking into account any special needs or vulnerability. Some respondents said that there should be appropriate and easily accessible support and assistance for those reporting hate crimes, for example, the use of appropriate adults to support young people making complaints and the use of independent advocates.
10.26. Some respondents made specific suggestions for improvements. Community Safety Glasgow ( CSG) suggested "the provision of a dedicated 24 hour support service, backed with a comprehensive communications strategy and budget" which would "generate many more reports and make the demand for services more visible". CSREC, which operates as a third party reporting centre, favoured a national free-phone helpline and a hate crime reporting app.
10.27. CSG also suggested that resources should be "segmented for the general population and for different communities affected by hate crime: this would take into account a range of support needs, for example communication needs for people with learning disabilities; LGBTI people who fear being outed". To improve knowledge and consistency, national information resources (not just online) should be developed in partnership with stakeholders. CSG suggest that this would help to manage victim expectations about the criminal justice process and help to clarify the distinction between a hate incident and a hate crime, as well as clarifying the processes that Police Scotland follow when a hate incident or crime is reported.
10.28. CRER also favoured greater coordination in this area. They suggested that that there should be a "bespoke, independent victim support body who could provide victims with information on reporting hate crimes, and continue to provide support to victims through the process if needed".
10.29. Police Scotland advised the review that as part of their strategic approach to tackling hate crime one of their areas of focus is on revised training for new recruits, existing officers and staff members. They are doing this in conjunction with external partners and communities to improve mutual understanding and to increase confidence.
10.30. The Victims and Witnesses (Scotland) Act 2014 places on justice organisations a statutory duty to set clear standards of service and improve the support and information made available to victims. The Act is supported by the Victims Code, published in 2016  and the Standards of Service for Victims and Witnesses  . The latter contains a flowchart or 'Victims' Map' setting out what victims can expect from each organisation at each stage of the process. This flowchart highlights the complexity of the system and the fact that victims are likely to have to deal with numerous agencies at different stages of the process.
10.31. This complex landscape was highlighted in the report produced by Dr Lesley Thomson QC, Review of Victim Care in the Justice Sector in Scotland, published in January 2017  . Her report recommends ways in which the criminal justice system might provide a better service to victims of crime. Her recommendations include:
- the development of a coordinated, multi-disciplinary service (bringing together all of those involved in the criminal justice system and third sector agencies) and the operation of a 'one front door' model or 'single point of contact';
- various pieces of further research should be undertaken to support the design of this coordinated service and future policy making;
- specific actions for COPFS, which should:
- continue to explore increasing use of digital contact to provide system and case progress information to victims and witnesses;
- deliver an updated programme of mandatory training for all staff and Crown Counsel on the impact of crime on victims;
- further develop the role of its Victim Information and Advice service ( VIA) in supporting victims and witnesses to give best evidence.
The Justice Board
10.32. In the Justice Vision and Priorities. Delivery Plan 2017-18  the Justice Board  has committed that justice partners will work with the third sector to create a single point of contact to provide support for victims.
Victim Support Scotland ( VSS)
10.33. In April 2018, the Cabinet Secretary for Justice announced  a new, 3-year funding package for VSS totalling £13.8 million, to enable them to provide free practical and emotional support to victims of crime across the country. As part of this, VSS will lead the development of a new 'victim centred' approach, working with partners to streamline points of contact, improve information flow and ensure victims of crime feel supported through the criminal justice system. The intention is that this will reduce the need for victims to have to retell their story to several different organisations as they seek help.
Crown Office and Procurator Fiscal Service ( COPFS)
10.34. Running in tandem with the Thomson review, COPFS has been focusing on a range of measures to support victims, largely through its VIA service and partnership working. In September 2017, COPFS, the Scottish Court Service ( SCTS), Victim Support Scotland and Police Scotland updated the Joint Protocol titled Working together for Victims and Witnesses to ensure that there are clear methods of communication for COPFS to communicate to SCTS that a witness attending at court has additional needs.
10.35. In December 2017, a Feedback Agreement was signed between the Lord Advocate and the CEO of Rape Crisis Scotland. The latter will share anonymous feedback on victims' experiences of the criminal justice system and their views on the service provided by COPFS: for instance how information was shared and the way the process was explained. The feedback will be used to identify ways COPFS can improve the service provided to victims of sexual crime.
10.36. COPFS is in discussions with the Scottish Government and the Scottish Court Service with a view to identifying legislative provisions which could be amended in order to streamline administrative processes that VIA is required to adhere to. If those provisions are amended this will enable VIA's resources to be directed towards greater levels of engagement with victims and witnesses.
10.37. It is clear that a number of initiatives are underway in relation to the treatment of victims of crime generally and victims of hate crime should benefit from these developments. I suspect it will take some time to realise this approach. Cultural change across many organisational boundaries will be needed, along with practical considerations such as aligning operating procedures and systems. That said, these initiatives are warmly to be welcomed and, if effectively implemented, would help to meet many of the concerns raised by a large number of people in the course of my review. I recognise that these matters go beyond my remit. Nevertheless a coordinated approach to reporting, preventing and responding to hate crime would ensure that:
- victims have greater understanding about why hate crime is unacceptable, supported by a societal commitment to reduce incidents;
- victims receive clearer communication at the various stages of the process: expectations could be better managed, thus building trust and confidence;
- all parts of the criminal justice system develop clear and well implemented operational practice to support victims' needs.
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.
How the Criminal Justice System deals with Perpetrators of Hate Crime
10.38. Where a hate crime has been committed, the court must consider the most appropriate way to sentence the perpetrator. As explained in chapter 3, the existing statutory aggravations require the court to take the fact of the aggravation into account when sentencing. This may result in an increased sentence, but it does not necessarily do so. It could equally result in the court choosing to impose a sentence of a different nature from what would otherwise have been given.
10.39. The report of the Independent Advisory Group on Hate Crime, Prejudice, and Community Cohesion specifically recommended that "the Scottish Government and partners should explore the use of restorative justice methods with victims and perpetrators of hate crime". Restorative justice is a process of independent, facilitated contact, which supports constructive dialogue between a victim and a person who has harmed arising from an offence or alleged offence. Restorative justice may take different forms, including direct or indirect communication between the parties. It is a fundamental feature of restorative justice that it is an entirely voluntary process for both parties and can be discontinued at any time.
10.40. Under section 5 of the Victims and Witnesses (Scotland) Act 2014, the Scottish Ministers have a power to issue guidance about restorative justice, which must be taken into account by relevant bodies who are prescribed by order. The Scottish Ministers issued such guidance in October 2017  (though section 5 is not yet in force, and so the guidance has no legal force at present).
10.41. The guidance explains why restorative justice is considered appropriate in some circumstances:
It gives victims the chance to meet, or communicate with, the relevant people who have harmed, to explain the impact the crime has had on their lives. This has the potential to help some victims by giving them a voice within a safe and supportive setting and giving them a sense of closure.
It also provides those who have harmed with an opportunity to consider the impact of their crime and take responsibility for it, with the aim of reducing the likelihood of re-offending. In some circumstances it can also allow them the opportunity to make amends for the harm caused. It can also be appropriate and helpful for children and young people who have harmed, where the need to safeguard and protect their interests is paramount.
During a restorative justice process, the person who has harmed and the victim may sometimes agree on certain actions that the person who has harmed can undertake to acknowledge the harm they may have caused. Clearly the agreement of both parties on which actions are appropriate cannot be guaranteed. The restorative justice process can be initiated by either the victim or the person who has harmed.
10.42. Restorative justice processes have not been widely used in relation to hate crime offending. However, Professor Mark Walters, Rupert Brown and Susann Wiedlitzka have analysed its use in their research, Preventing Hate Crime – emerging practices and recommendations for the improved management of criminal justice interventions  , and concluded that it can be beneficial in appropriate cases. Giving evidence to the Westminster Home Affairs Select Committee, Professor Walters noted that restorative justice could have a much greater impact on the perpetrator than simply increasing the level of a fine: "If you're talking about smarter penalties or smarter interventions, Restorative Justice has a lot of potential." He referred to an antisemitism case in which the family affected did not want the offender to litter-pick as part of his community sentence, but instead wanted him to do a study on the effects of the Holocaust on the Jewish people. The offender was supervised to do this for two weeks and had to present his findings and his reflections to the family. Professor Walters summarised the offender's reflections: "I had actually no idea that being antisemitic had this kind of impact. I had no idea that all these people died during the Second World War".
10.43. An alternative way in which perpetrators may be encouraged to consider the impact of their actions is through schemes which allow diversion from prosecution. If the prosecutor considers such schemes are appropriate and likely to be effective in a particular case, they may offer this option. A diversion scheme generally involves activities to encourage the individual to consider the effect of their behaviour and avoid it happening again. If the individual engages with the programme effectively, they will not be prosecuted and the behaviour in question is not reflected on any criminal record. However, if they do not engage effectively, the COPFS can still decide to proceed with the prosecution. Generally, such schemes would only be considered appropriate where the individual accepts that they committed the offence and the nature of the offending behaviour was relatively low-level. Members of the Justice Committee considering the Bill to repeal the OBFTCA were particularly interested in such schemes in the context of how they could be used for individuals involved in sectarian chanting etc.
10.44. The consultation paper described schemes for restorative justice or diversion from prosecution and asked for views on whether such options were useful in dealing with hate crimes and if legislative change would be required.
10.45. A small majority of respondents considered that diversion and restorative justice schemes should be considered (amongst other options) in dealing with the perpetrators of hate crime. This view was more strongly held by organisations than individuals. The main reasons given were based around an idea that perpetrators were less likely to re-offend if they really understood the context and impact of their offending. It was also thought that such schemes would give victims a stronger voice in the criminal justice system.
10.46. Amongst those who disagreed, the view was that such schemes were not effective or might be seen as a 'soft option'. Some respondents expressed concern that there is an insufficient focus on the role of the victim, and that there had been instances in which victims felt pressured to take part in restorative justice conversations in a way which was not truly voluntary. This could lead to further harm to the victim, particularly if the scheme is administered by someone who does not have a full understanding of the power dynamics which may be at play.
10.47. There was a common theme amongst respondents (whether they agreed or disagreed with the principles of diversion and restorative justice) that their use is not straightforward and must be assessed on a case-by-case basis.
10.48. There was less certainty in response to the question about whether diversion or restorative justice schemes should be placed on a statutory footing, with more respondents answering 'don't know' than either 'yes' or 'no'. Amongst those who argued for a statutory provision, this was generally because they considered statutory recognition of the schemes would give them greater prominence, and ensure that they are used consistently.
10.49. I explained in chapter 2 that hate crime legislation is one part of a much bigger picture of how to achieve a society in which people live together, respecting one another and treating each other fairly, regardless of differences. Hate crime offences involve identifying and condemning hostility based on personal characteristics. If it is possible to take action in relation to a perpetrator which will reduce or dispel that hostility, and which will give the victim confidence that the impact on them has been recognised, that is in my view a positive thing and consistent with the aims and justification of hate crime legislation.
10.50. From the evidence available to the review, I consider that there is strong potential for diversion and restorative justice techniques to be effective when used appropriately. However, it is also clear that they can have a negative effect (either through causing further harm to the victim or reducing confidence in the criminal justice system) if used without due care. The academic research mentioned in paragraph 10.42 highlighted one pilot scheme in which police officers had been trained to offer 'restorative encounters' following low-level offences. A number of the victims who took part in such encounters reported that they felt pressured to take part and that any apology received had not been genuine.
10.51. I learned about a project being undertaken by the Criminal Justice Social Work Department of City of Edinburgh Council to increase the awareness and availability of restorative justice. This has involved considerable liaison between agencies and the development of training programmes, clear structures and information sharing protocols. The Department has now carried out its first restorative justice conference with an individual subject to statutory supervision by the court. The approach taken by the Department shows that restorative justice is not an easy 'sticking-plaster', but requires considerable devotion of resources if it is to be made to work. An evaluation of this service will be undertaken at a future date.
10.52. I am satisfied that there is no need for statutory change to facilitate restorative justice or diversion from prosecution. The COPFS has clear structures which allow them to offer diversion from prosecution in appropriate cases but then retain the option of proceeding with the prosecution if the individual does not engage effectively with the programme. The guidance on restorative justice which has been published by the Scottish Government can be used to ensure the consistent governance, oversight and standards which consultation respondents considered important. I therefore do not propose to make a specific recommendation on this topic, but simply highlight the opportunities available in this nascent area and encourage practitioners to take note of, and learn from, developing practice.
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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