Scottish Crime Recording Standard: Crime Recording and Counting Rules

Section I – Hate Incidents and Hate Crimes

The Hate Crime and Public Order (Scotland) 2021 was introduced on 1^st April 2024.

Details of changes to legislation are shown below with further information contained within the relevant annex.

Old Legislation

Section 50A(1)(a)(Consolidation)(Scotland) Act 1995

Section 50A(1)(b) Criminal Law (Consolidation)(Scotland) Act 1995

Sections 18-21 Public Order Act 1986 (stirring up Racial Hatred)

Not Previously Covered

New Legislation

Section 3(1)(a) of the Hate Crime and Public Order (Scotland) Act 2021

Section 3(1)(b) of the Hate Crime and Public Order (Scotland) Act 2021

Section 4(1) of the Hate Crime and Public Order (Scotland) Act 2021

Section 4(2) of the Hate Crime and Public Order Act 2021 – stirring up hatred towards age, disability, religious belief, sexual orientation, transgender identity and variations in sex characteristics

Hate Incidents

There will be occasions when incidents occur where no crime has been committed but the incident itself is perceived to have been motivated due to hate or prejudice. In such cases these incidents will be recorded as hate incidents.

Perception

In terms of the perception element consideration must be given to:

• Who perceived the circumstances to amount to being a hate incident/crime.
• Why it was perceived to be a hate incident/crime.

Hate Crimes

The crime is based on the motivation of malice or ill will towards a social group. This means the question of whether the victim of a hate crime actually belongs to a social group or not, is irrelevant. For example, if someone is the victim of a homophobic attack, whether they are gay or not is irrelevant.

An individual may be targeted because of their vulnerability. This should not be automatically interpreted as hate crime.

If a crime is reported and is perceived to be motivated by hate by the victim or any other person, including a police officer, it should be recorded and investigated as such.

Statutory legislation exists which creates an aggravation of any criminal offence against a person or their property when motivated wholly or part by an offender's hatred of someone because of their perceived:-

Disability

A disability is a physical or mental impairment of any kind. For the purposes of what constitutes an impairment (but without prejudice to its generality), a medical condition which has, has had, or may have a substantial or long-term effect, or is of a progressive nature, is to be regarded as amounting to an impairment. This covers any disability including, learning disabilities, physical disabilities, sensory disabilities, mental health conditions and long-term medical conditions.

Age

This characteristic will cover persons of any age. Therefore, this would mean that it does not apply only to a particular age group such as elderly persons or children and young people.

Transgender Identity

A person is a member of a group defined by reference to transgender identity if the person is:

(a) a female-to-male transgender person,

(b) a male-to-female transgender person,

(c) a non-binary person,

(d) a person who cross-dresses,

and references to transgender identity are to be construed accordingly.

Transgender identity is an umbrella term for those whose gender is not the same as, nor sits comfortably with their sex assigned at birth.

Non-Binary - An umbrella term for people whose gender identity doesn’t sit comfortably with ‘man’ or ‘woman’. Non-binary identities are varied and can include people who identify with some aspects of binary identities, while others reject them entirely.

Race

Race is defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins.

Race refers to groups of people who share physical characteristics such as skin colour and/or facial features or nationality (including citizenship) and ethnic or national origins. They may also share similar social or cultural identities and ancestral backgrounds.

Racial identity can include a person’s accent and the characteristic of Race includes Refugees, Asylum Seekers, Jewish people and Gypsy Travellers.

Ethnicity describes the cultural identity of a person.

Religion

A group defined by reference to religion is a group of persons defined by reference to:

(a) religious belief or lack of religious belief,

(b) membership of, or adherence, to a church or religious organisation,

(c) support for the culture or traditions of a church or religious organisation,

(d) participation in activities associated with such a culture or such traditions.

This protected characteristic is a set of beliefs that is held by a group of people which includes any religion or belief group.

It should be noted that a belief is a firm thought that something is true, not just a way of life. Some religions do not have gods.

People can experience religious prejudice even if they don’t follow any religion.

Sexual Orientation

A reference to sexual orientation is a reference to sexual orientation towards:

(a) persons of the same sex,

(b) persons of a different sex, or

(c) both persons of the same sex and persons of a different sex.

Sexual orientation is related to physical, emotional or romantic attraction to another.

Variations in Sex Characteristics

A person is a member of a group defined by reference to variations in sex characteristics if the person is born with physical and biological sex characteristics which, taken as a whole, are neither -

(a) those typically associated with males, nor

(b) those typically associated with females,

and references to variations in sex characteristics are to be construed accordingly.

The existing definition of “transgender identity” includes “intersexuality”. It is now recognised that intersex (or a person being born with physical or variations in sex characteristics) is separate to a person’s transgender identity.

The definition of “variations in sex characteristics” includes people who are born with biological and/or genetic characteristics not typically associated with males or females. There is a variety of terminology used with reference to variations of sex characteristics and intersex status. This is because some people prefer to use the term “differences in sex development” and some prefer to simply describe their specific variation.

Examples of Hate Crimes and Recording Practices

Example 1 - Person reports being subjected to verbal abuse perceived to be racially motivated.

This conduct was not witnessed by others.

1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or Abusive Behaviour (with Racial aggravator). Note - there is no corroboration to the racially aggravated conduct so the Hate Crime and Public Order (Scotland) Act 2021, S3(1)(b) offence is not relevant.

This conduct was witnessed by others.

1 x Hate Crime and Public Order (Scotland) Act 2021, S3(1)(b) - Racially Aggravated Conduct (with Racial aggravator). Note - corroborative evidence of racially aggravated conduct justifies recording under S3(1)(b).

Example 2 - Person reports a brick having been thrown at their living room window, breaking same and perceives this to be racially motivated providing reasons for same.

1 x Criminal Law (Consolidation) (Scotland) Act 1995, S52 Vandalism (with Racial aggravator)

Example 3 - Person reports a slogan perceived to be racially motivated has been scratched into the bodywork of their car.

1 x Criminal Law (Consolidation) (Scotland) Act 1995, S52 Vandalism (with Racial aggravator)

Example 4 - Person reports being assaulted. No comments are made by the assailant, but the incident is perceived to be racially motivated.

1 x Assault (with Racial aggravator)

Example 5 - Person reports being assaulted. Comments made by assailant were perceived to be racially motivated and were uncorroborated.

1 x Assault (with Racial aggravator). Note - no requirement to record a crime for the comments made which are subsumed into the assault.

Example 6 - Person reports being assaulted. Comments made by assailant were perceived to be racially motivated and were corroborated by witnesses.

1 x Assault (with Racial aggravator). Note - no requirement to record a crime for the comments made which are subsumed into the assault.

Example 7 - Disabled person reports being shouted and sworn at where comments made were perceived to be motivated by prejudice towards their disability.

1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or Abusive Behaviour (with Disability aggravator)

Example 8 - Deaf person reports someone mimicking Sign Language towards them in an offensive manner which is perceived to be motivated by prejudice towards their hearing impairment.

1 x Criminal Justice and Licensing (Scotland) Act 2010, S38, Threatening or Abusive Behaviour (with Disability aggravator)

Example 9 - Person is assaulted. During the assault, the assailant makes comments which were perceived to be motivated by prejudice towards their transgender identify.

1 x Assault (with Transgender aggravator)

Example 10 - Person has comments scratched into the bodywork of their car. The comments were perceived to be motivated by prejudice towards their sexual orientation.

1 x Criminal Law (Consolidation) (Scotland) Act 1995, S52 Vandalism (with Sexual Orientation aggravator)

Example 11 - Suspect who is caught stealing goods from a shop makes a comment perceived to be racially motivated to a member of staff which is not corroborated.

1 x Theft by Shoplifting

1 x Protection of Workers (Retail and Age-restricted Goods and Services)(Scotland) Act 2021, S1, Threatening or Abusive Behaviour of Retail Worker (with Racial aggravator). Note - the uncorroborated racial comment is a separate crime which cannot be subsumed into the shoplifting and must be recorded separately.

Example 12 - Suspect who is caught stealing goods from a shop assaults a member of staff and makes a comment perceived to be racially motivated which is corroborated.

1 x Theft by Shoplifting

1 x Protection of Workers (Retail and Age-restricted Goods and Services)(Scotland) Act 2021, S1, Assault of Retail Worker (with Racial aggravator)

Note - the Assault is a separate crime which cannot be subsumed into the shoplifting and must be recorded separately. Note - no requirement to record a crime for the comment made which is subsumed into the assault.