Based on his findings Lord Bracadale has made the following recommendations.
Statutory aggravations should continue to be the core feature of how hate crimes are prosecuted in Scotland.
A statutory aggravation can only apply when an offence, such as assault, has been committed and that offence involves hostility based on a protected characteristic. This is not about creating new offences but rather flagging up the hate crime aspect.
The current legal tests of what a hate crime is should be maintained with updated language.
The statutory aggravation should apply when:
- The offender demonstrates hostility towards the victim, based on a protected characteristic, in the course of the offence. This includes even words uttered in the heat of the moment.
- If the offence is motivated (wholly or partly) by hostility based on a protected characteristic
Transgender identity and intersex
In relation to the statutory aggravations intersex should be made a separate characteristic from transgender identity and consideration should be given to removing outdated terms from the definition of transgender identity in hate crime law.
Association with a protected characteristic
Provisions should be created to ensure that hate crime offences based on someone’s association with a protected characteristic are covered by statutory aggravations. (At present this applies only to crimes relating to race or religion.)
It is not necessary to extend the religious aggravation to capture religious or other beliefs held by an individuals rather than a group. The courts can use common law powers to impose higher sentences in such cases if necessary.
There should a new statutory aggravation (with the same legal tests applied) in relation to gender as a protected characteristic
There should a new statutory aggravation (with the same legal tests applied) in relation to age as a protected characteristic.
Ministers might wish to consider a new provision that would allow the courts to recognise offences that involve the exploitation of vulnerable people.
This might include fraud offences where the victim has been chosen because they are perceived to be an easy target, perhaps because of their age or because they have a disability.
This behaviour does not necessarily involve hostility towards based on a protected characteristic and should not be treated as a form of hate crime.
It should be an offence to stir up hatred in relation to groups based on each of the protected characteristics .
Stirring up offences involve threatening or abusive behaviour which has the intention of encouraging others to hate people who have a protected characteristic or which in the circumstances is likely to do so.
The current law only deals with the stirring up of racial hatred: this recommendation ensures that stirring up offences apply to all protected characteristics.
The legal provisions should include measures that protect freedom of expression.
Online hate crime: no new legislation is necessary
Online behaviour is capable of being dealt with in the same way as if it were committed in person.
The extension of the statutory aggravation on gender and the stirring up offences will ensure that the courts can address issues we have been made aware of in relation to online hate crime.
Scottish Ministers should also consider the outcomes of policy developments around online safety including a review of the offences which apply to online communication that will be undertaken by the Law Commission.
The offence of racial harassment and conduct (section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995) should be repealed.
At the moment race is the only protected characteristic group to have a “standalone” offence in addition to the statutory aggravation.
Removal of this standalone offence does not mean that racial harassment is permitted and will not be punished, but that hate crime across all of the protected characteristics will be dealt with in the same way, namely by using statutory aggravations in conjunction with an underlying criminal offence.
It is not necessary to create new provisions to deal with offensive behaviour at regulated football matches.
Section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 Act has been repealed.
Hate crime behaviour at football can be effectively dealt with by using other offences, for example breach of the peace, with a statutory aggravation. The proposed new stirring up offences also apply to hate crime behaviour at football.
The Scottish Government has set up a working group to look at the definition of sectarianism.
All Scottish hate crime legislation should be consolidated (brought together in one place).
There are a number of procedural issues which extend beyond Lord Bracadale’s remit but which he has reflected on.
He outlines and commends the practical measures being taken to coordinate the response to reporting, preventing and responding to hate crimes.
He encourages practitioners to be aware of and learn from developments in the provision of restorative justice and diversion from prosecution services.