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 1 - Process and methodology
1.1. At the end of January 2017 I was appointed by Annabelle Ewing, Minister for Community Safety and Legal Affairs, to conduct an independent review of hate crime legislation in Scotland.
1.2. The review was established following the publication in September 2016 of the report of the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion, chaired by Dr Duncan Morrow, which recommended that the Scottish Government should:
- lead discussion on the development of clearer terminology and definitions around hate crime, prejudice and community cohesion; and
- consider whether the existing criminal law provides sufficient protections for those who may be at risk of hate crime, for example based on gender, age or membership of other groups such as refugees and asylum seekers.
1.3. There was also a recognition that hate crime legislation had developed in a piecemeal manner over many years and the review provided an opportunity to consider whether harmonisation and consolidation would be beneficial.
1.4. During the course of the review a Bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 ( OBFTCA) was passed by the Scottish Parliament. The review has taken into account the impact of repeal of the Act on hate crime legislation.
1.5. Against that background, the remit of the review was in the following terms:
To consider whether existing hate crime law represents the most effective approach for the justice system to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice.
In particular, to consider and provide recommendations on:
- Whether the current mix of statutory aggravations, common law powers and specific hate crime offences is the most appropriate criminal law approach to take.
- Whether the scope of existing hate crime law should be adjusted including whether the existing religious statutory aggravation should be adjusted to reflect further aspects of religiously motivated offending.
- Whether new categories of hate crime should be created for characteristics such as age and gender (which are not currently covered).
- Whether existing legislation can be simplified, rationalised and harmonised in any way such as through the introduction of a single consolidated hate crime act.
- How any identified gaps, anomalies and inconsistencies can be addressed in any new legislative framework ensuring this interacts effectively with other legislation guaranteeing human rights and equality.
1.6. I have been supported by a small team comprising Victoria MacDonald, Legal Secretary to the Review, and Carole Robinson, Project Manager. I am very grateful for that support and their unstinting commitment throughout the whole process of the review.
1.7. At the outset I set up a reference group with a range of experience and expertise. The membership of the nine strong group were:
- Steve Allen, former Deputy Chief Constable, Police Scotland;
- James Chalmers, Regius Chair of Law, University of Glasgow;
- Ian Cruickshank, part-time sheriff, solicitor and convenor of Law Society of Scotland criminal law committee;
- Catherine Dyer, former Crown Agent;
- Cathy Jamieson, Managing Director of Care Visions Children's Services and former Minister for Justice;
- Johanna Johnston QC, sheriff;
- Shelagh McCall QC, member of Faculty of Advocates and part-time sheriff;
- Alan McCloskey, Director of Operations in Victim Support Scotland  ; and
- John Wilkes, Head of the Equality and Human Rights Commission Scotland.
1.8. The reference group provided independent expert advice and knowledge of the policy, legislative background and practice of existing hate crime legislation and the impact of any proposed changes. Throughout the review process the group scrutinised and challenged the developing ideas in order to ensure that recommendations would be robust and achievable. I am most grateful for their invaluable contribution to the development of the review.
Keeping people informed: website
1.9. Recognising that there was considerable interest in the review and the importance of keeping the public informed, my team set up a website: http://www.hatecrimelegislationreview.scot. The website formed the hub for communication with all interested parties, keeping them, and the public generally, abreast of progress and explaining how all might participate in the review.
1.10. I commissioned Professors James Chalmers and Fiona Leverick, both of the University of Glasgow, to prepare an academic report  . The academic report examined the underlying principles and justification of hate crime legislation; set out the current law in Scotland; and described the approach of other jurisdictions. It has made a huge contribution to the development of the consultation paper and the final report, providing a legal benchmark for testing recommendations.
Gathering early views: questionnaire
1.11. At the outset of the review process I sent out a letter to a large number of interested organisations explaining the purpose of the review and encouraging them and their members to engage in the process. I asked people to complete a short questionnaire to outline their understanding and experience of the impact of hate crime. The responses were analysed by Dr Rachel McPherson  . I was struck by the range and magnitude of the issues faced by many of the respondents and their communities. The responses to the questionnaire informed the development of the consultation paper.
Gathering early views: meetings
1.12. At an early stage in the review my team and I participated in a series of fact-finding meetings. These included meetings with those responsible for applying the law, including police officers, representatives of the Crown Office and Procurator Fiscal Service ( COPFS) and sheriffs. I also met with a wide range of interested parties in the community, many of whom support those affected by hate crime. These included representatives of groups with an interest in the currently protected characteristics and a number of potential additional characteristics, as well as those with particular interest in the OBFTCA and its possible repeal. A list of the organisations and individuals that my team and I met with both in the early stages of the review and following the consultation process is at annex 1.
Learning from research and existing material
1.13. My team and I engaged in desktop research into a significant body of published material relating to hate crime. We reviewed parliamentary debates and the reports of working groups. We liaised with policy makers in both the Scottish and UK Governments and the Northern Irish administration, those in the criminal justice system, academics and those involved in initiatives from which we might learn. One example was the pilot scheme developed by a number of English police forces to flag misogynistic or gender-hostility acts as hate crimes. We also studied the annual statistics produced by COPFS and the Scottish Government in relation to hate crime in Scotland.
1.14. I published a consultation paper on 31 August 2017. I issued three versions:
- a full version, aimed mainly at a technical, legal audience;
- a non-technical guide, aimed at the general reader with no specialist legal knowledge; and
- an 'easy read' version using simple language and pictures.
The consultation paper, which was based on the information already gathered, covered all aspects of the remit, and invited responses to a wide range of questions. In particular, it sought views on what aspects of the current legislation should be retained and whether new provisions should be introduced.
1.15. I was delighted to launch the consultation paper at a community event held by Central Scotland Regional Equality Council ( CSREC) in Stirling. This was the first of 17 events that I and my team undertook to raise awareness of the consultation and to encourage well-informed responses. The events took place up and down the country, from Shetland to Dumfries, and were hosted by bodies representing various equality groups and organisations with a professional interest in the operation of hate crime law. The events gave me an opportunity both to ask and receive questions from a wide range of people about the topics that mattered most to them. I am very grateful to all those who hosted events and workshops and to attendees who assured me of a warm welcome and inspiring conversation. A full list of events which the review team attended is at annex 2. In addition, I invited representatives from each of the opposition parties in the Scottish Parliament to meet me and discuss the work of the review. As a result, I met with the justice spokespersons for the Labour Party and the Liberal Democrats and the co-convenor of the Scottish Green Party. These were useful meetings and I am grateful to the MSPs for their participation.
1.16. I received a total of 457 responses to the consultation paper: 76 came from organisations and 381 from individuals. Where respondents gave permission, their responses have been published on the consultation hub platform  .
1.17. I commissioned external analysts, Alison Platts and Dawn Griesbach, to produce an analysis of the responses  . The report identifies the main themes and issues that emerged and distils the key points raised. There was a lack of consensus on many issues and clear difference between the views of organisations and individuals on a number of specific matters. Many individuals opposed the very concept of hate crime. However, there were some clear common themes, even from respondents who reached different conclusions about how the law should operate. Responses generally reflected strongly held views, particularly in relation to freedom of speech. The responses to the consultation paper have informed each of the chapters of the report and the recommendations.
1.18. It will, of course, be for Scottish Ministers to consider how they wish to respond to my recommendations. I am pleased that the review has sparked discussion across a wide range of issues and I hope that the work that flows from this report will sustain that public interest and debate to shape meaningful action in this important area.
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