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 7 - Standalone Offence: Racially Aggravated Harassment and Conduct – Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995
7.1. This chapter considers the offence contained in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 and whether it should be retained. Section 50A is unusual within the context of the current hate crime laws in Scotland: it incorporates the element of hostility as a core part of the offence, rather than operating as a baseline offence with a separate statutory aggravation. It is therefore referred to here as a 'standalone offence'. There is no equivalent offence relating to any of the other protected characteristics. I therefore asked specific questions in the consultation document about what practical effect it had in the race context, and how that related to equivalent hostility towards other characteristics.
7.2. The nature of the section 50A offence, the requirements of corroboration and the sentencing options will be compared to an alternative option of a combination of a baseline offence with a statutory aggravation. In determining whether section 50A is still necessary, consideration will be given to its historical significance and whether it offers any unique provision which is not covered by existing common law offences and later statutory offences introduced by subsequent legislation.
History of section 50A
7.3. Section 50A incorporates two separate offences:
a) racially aggravated course of conduct which amounts to harassment of a person and is intended to amount to harassment or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment; and
b) a single racially aggravated act which causes, or is intended to cause, a person alarm or distress.
7.4. In each case the offence is racially aggravated if the offender is motivated by malice and ill-will towards members of a racial group based on their membership of that group, or evinces malice and ill-will towards the person affected based on that person's membership, presumed membership or association with a racial group.
7.5. Section 50A was created by the Crime and Disorder Act 1998 which introduced the new offence by way of amendment to the 1995 Act. The offence was created because of concerns that the problems of racial harassment and racially motivated violence were not treated seriously enough by the criminal justice system. The race provisions in the Crime and Disorder Bill were drafted in anticipation of the Macpherson inquiry into the death of Stephen Lawrence, which highlighted patterns of racial violence, intimidation and harassment directed at ethnic minorities which had not been subject to active police investigation or prosecution. The Macpherson report resulted in a seismic shift in the policing of hate crime, and the development of new offences were an important part in achieving this.
7.6. It is worth noting that the Crime and Disorder Act 1998 also introduced the race statutory aggravation provision discussed at chapter 3. Section 96 of the 1998 Act provides that if any offence has been racially aggravated, the court must note that in the conviction and take the aggravation into account when determining sentence. The test of when an offence is racially aggravated under section 96 is in all respects equivalent to that which applies as a key element of the section 50A offences ( i.e. motivation by, or evincing, malice and ill-will related to race). The statutory aggravation could be used in conjunction with any baseline offence, including the common law breach of the peace.
7.7. During the Committee stage of the 1998 Bill, the then Lord Advocate noted that much of the behaviour which would be covered by the new standalone offence would also be covered by the crime of breach of the peace. However, he considered that there may be instances where the new offence fitted the facts of the case better, particularly in cases where there was a course of conduct amounting to harassment rather than a one-off incident. He also suggested that the new offence would also help to clarify – both to victims and potential offenders – what behaviour is properly deemed to be criminal. He quoted from the Commission for Racial Equality, who argued that: "While the common law may have certain advantages, its use has not sent out a clear public message that racial harassment and racially motivated violence is wholly unacceptable in Scotland." 
7.8. One factor which may have been significant in developing the section 50A offence as an alternative to the common law breach of the peace is that a breach of the peace requires a public element: there must be a risk of serious disturbance to the community. However, a section 50A offence is not limited in such a way and can be committed in private. For example, in King v Webster  , the offence was committed where the complainer overheard racially harassing comments expressed in the course of a private telephone conversation.
Use of section 50A in practice
7.9. It is clear from the evidence which the review has gathered through conversations, the questionnaire and consultation responses that hate crime related to race remains a significant issue in Scotland. The 2004 Working Group on Hate Crime noted research into hate crime that 'lower-level' behaviour such as hate-based abuse and harassment were more common than serious assaults, and that such behaviour was often prosecuted under the offences in section 50A. This is borne out by the anecdotal evidence which we have received. The Coalition for Racial Equality and Rights made detailed submissions to the review emphasising the importance of the existence of a standalone charge in conveying the serious nature and State condemnation of racial harassment. It argued that it is significant to society that racial harassment is sufficiently serious to justify a standalone offence.
7.10. The Scottish Government Criminal Proceedings database statistics show that the vast majority of convictions which have been secured under section 50A since it was created relate to one-off incidents (section 50A(1)(b) offence: 97% of the total) rather than course of conduct (section 50A(1)(a) offence: 3% of the total). Almost all were prosecuted summarily rather than on indictment before a jury (12,771 convictions following summary complaint; 99 on indictment).
7.11. The Crown Office hate crime figures distinguish charges reported to them under section 50A and charges reported under other offences with a racial aggravation. The figures show a very high number of charges under section 50A, although this number has diminished on an annual basis (2574 charges in 2010-11, falling to 1463 in 2016-17).
Offence of threatening or abusive behaviour: section 38 of the Criminal Justice and Licensing (Scotland) Act 2010
7.12. In 2010, the Scottish Parliament enacted the offence of threatening or abusive behaviour. The offence is committed if a person behaves in a threatening or abusive manner, the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and the perpetrator intends to cause fear or alarm or is reckless about doing so. The behaviour can consist of a single act or a course of conduct. The offence is sometimes referred to as a 'statutory breach of the peace', but differs from the common law offence of breach of the peace in some important respects. First, breach of the peace involves some public element, whereas a section 38 offence can be committed in private. As with the section 50A offence, it does not require any risk of serious disturbance to the wider community. Second, the offence is more specific in identifying the behaviour which is made criminal.
7.13. It is possible to charge the section 38 offence with any of the statutory aggravations. According to the Scottish Government Criminal Proceedings database statistics the number of convictions for section 50A offences reached a peak during the years 2011/12 and 2012/13 when 929 and 933 convictions were recorded. There then appears to be a noticeable decline, because by 2016/17 there were only 626 convictions under section 50A. Looking at similar statistics for convictions under section 38 with a racial aggravation there has been an increase in the number of convictions since the 2010 Act came into force with 125 convictions in 2011/12 and 433 convictions in 2016/2017. A reasonable conclusion which can be drawn from the numbers is that the decline in the convictions under section 50A has been accompanied by a corresponding increase in convictions under section 38 with a racial aggravation. The figures suggest that the newer offence of section 38 with a racial aggravation has been recognised and brought into use.
7.14. I have considered the wording of the section 50A and section 38 offences and concluded that they are very nearly identical when the racial aggravation provision is added. The section 38 offence requires threatening or abusive behaviour which would be likely to cause a reasonable person fear or alarm. The section 50A offence requires behaviour involving malice and ill-will which is intended to harass (defined as including alarm or distress) or to cause alarm or distress.
7.15. The tests of 'fear or alarm' and 'alarm or distress' are not identical, but it is difficult to envisage a realistic circumstance which could be prosecuted under section 50A and not also under section 38 with a racial statutory aggravation. No such examples have emerged from the review's consultation or research. I am aware of comments made in the decision in RR v PF Aberdeen  , an appeal against sentence, which might be read as suggesting that section 38 is not an appropriate charge where there was no threatening or abusive behaviour other than the racially abusive language. That case involved abusive comments by a door steward who used a racist phrase when refusing the complainer entry to a club. However, this decision must be read in the light of the later decision in Mack v PF Falkirk  which confirmed that section 38 could be used in such circumstances. In that case, a hospital patient referred to a German doctor as a 'Nazi bastard' and 'Nazi German', and continued to do so when asked to stop. Mack was an appeal against conviction heard by three judges. I am satisfied that the approach taken in Mack is correct, and that it is possible for the specific threatening or abusive behaviour which gives rise to the section 38 offence to also be relied upon to prove the aggravation. An approach which is too rigid in identifying each element risks undermining the policy intent of the legislation.
7.16. It is notable that there is no equivalent to the section 50A offence in relation to any other area of hate crime. Hate-based harassment against other groups is in fact prosecuted under section 38 or common law breach of the peace with a statutory aggravation, as envisaged by the 2004 Working Group. Given the existence of both the section 38 offence and the section 96 racial aggravation, I have considered whether there are any differences in effect or presentation which mean that a section 50A offence is still necessary in relation to race.
7.17. The section 50A offence allows for a maximum sentence of 12 months on summary complaint and seven years on indictment. In comparison, a section 38 offence allows for a maximum sentence of 12 months on summary complaint and five years on indictment. If the section 50A offence were repealed, allowing section 38 to remain, then arguably it may reduce the scope for sentencing by two years on indictment. However, the review has consulted the Criminal Proceedings Statistics office of the Scottish Government and has been advised that there have been no instances where a custodial sentence exceeded five years on a section 50A conviction. On that basis, the sentencing provisions provided by section 38, with a maximum of five years on indictment would have covered all previous cases. It is somewhat unusual to see sentencing provisions for seven years, it is a figure not often seen in other statutes. The maximum sentence a Sheriff may impose is five years, which may explain why there have been no convictions with a sentence greater than five years for a section 50A offence.
7.18. It is of note that the vast proportion of section 50A and section 38/section 96 cases are prosecuted on summary complaint rather than indictment. With sentencing ceilings being identical on summary complaint between section 50A and section 38 and the majority of such cases proceeding on that basis, any difference between maximum sentencing on indictment will have little practical impact.
7.19. In terms of sufficiency of evidence required to prove a section 50A offence, it must be corroborated which means that there must be more than one piece of evidence to prove all parts of the offence. This is a requirement of proof in any criminal proceedings in Scotland.
7.20. There is a difference in the sufficiency of evidence required to prove a statutory aggravation because corroboration is not essential. While the baseline offence attached to any statutory aggravation must be corroborated, the evidence to prove the racial aggravation does not need to be. From a prosecution perspective, the extent of evidence required to prove a section 38 offence with a section 96 racial aggravation attached is slightly less onerous in terms of corroboration than that required of a section 50A offence where the entire element of the offence must be corroborated.
7.21. The consultation exercise asked whether the standalone offence in section 50A was necessary in view of other developments and, if so, whether it should be extended to other groups. The responses are described and analysed at chapter 5 of the consultation analysis report. As with many of the consultation questions, there was a divergence of opinion about the best way forward. However, there was some commonality in the themes raised, even among respondents who reached different ultimate conclusions.
7.22. Many respondents noted the historical and structural nature of racism. A number of respondents who had reservations about hate crime generally thought that racial hatred was somewhat different as it was described as more 'objective'; there were comments about the deep-rooted nature of racism. There were arguments that everyone should be protected against harassment (regardless of the reason for it), and for parity between the protected groups.
7.23. At the time section 50A was introduced in 1998 it was a significant statutory development in that it was part of a suite of provisions intended to deal with racially aggravated offending. However, I have concluded that it is no longer needed to meet the aims which it was intended to achieve when it was created in 1998. In particular, the advent of the offence of threatening or abusive behaviour contrary to section 38 means that there is an alternative route to target the behaviour, which is well understood by the criminal justice authorities and which is clear about the nature of the conduct in question. The statistics demonstrate that this route is being used in practice in conjunction with statutory aggravations to tackle hate-based prejudice on different grounds.
7.24. I am concerned that the continued use of section 50A has a potentially negative effect. It makes the scheme of hate crime legislation more complicated than it needs to be, which risks causing confusion to the public. It also complicates the statistics and makes it difficult to identify trends. The way in which Police Scotland record an incident may depend on whether there is corroborating evidence of any racial element, rather than the nature of the offence itself. I do not think there is a sound, principled basis to maintain the two alternative routes.
7.25. I recognise the force of the arguments that section 50A had a very important symbolic significance when it was enacted. However, I consider that the symbolism of section 50A should be considered in the light of other developments in equality and hate crime law since 1998, which now cover a number of protected characteristics. I consider that a consistency of approach is important to avoid a perception of there being a counter-productive 'hierarchy' between the different protected characteristics. A human-rights based approach would suggest that legislation should apply consistently to protected groups unless there is a strong reason to do otherwise.
7.26. I do not detract in any way from the seriousness of racial harassment. Racially aggravated offending remains a very significant issue, with a corrosive impact of society. I understand the arguments made by some parties that removing a specific legislation provision risks reducing the emphasis which is placed on tackling that form of offending or diluting the message that it is condemned by the State. However, I do not agree that is a necessary or likely consequence of repeal, particularly when Scots law includes a clear and focused alternative charge which can be used. It remains important that crimes of racial violence and racial harassment are dealt with seriously, but this is achieved more through the resources and procedures which are devoted to the issue than the specific form of legislation applied. Effective action to tackle racial harassment and to convey its seriousness to the public does not require a separate legislative framework. I therefore recommend the repeal of section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995.
Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 should be repealed.
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