Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: business and regulatory impact assessment
Business and regulatory impact assessment (BRIA) for the Scottish Statutory Instrument (SSI) to add "sex" as a characteristic to the Hate Crime and Public Order (Scotland) Act 2021.
Section 3: Costs, impacts and benefits
Quantified costs to businesses
The main costs that will arise from adding the characteristic of sex to the 2021 Act will fall on criminal justice system agencies. These can be separated into one-off costs arising from the need to update training materials, guidance and IT systems and on-going costs that may arise from additional cases being prosecuted in the courts as a result of the new stirring up hatred offence and statutory aggravation.
Training and implementation costs
The creation of a new statutory aggravation and stirring up hatred offence will require certain updates to be made to IT systems operated by justice system organisations. These are not expected to incur significant costs and these bodies will have processes in place to ensure that such systems are updated to reflect changes to the criminal law.
There will also be training costs associated with these changes. These are expected to fall mainly on Police Scotland and COPFS as police officers will be responsible for investigating alleged offences and, where appropriate, reporting these to COPFS. COPFS will then be required to make decisions on the prosecution of offences reported to them.
The one-off costs relating to training and guidance and changes to IT systems for individual organisations are set out in more detail below.
Ongoing costs
There will be on-going costs arising from the creation of a new statutory aggravation where offences are aggravated by prejudice relating to the characteristic of sex, and a new offence of stirring up hatred against a group of people defined by reference to their sex.
The Financial Memorandum[2] accompanying the 2021 Act sought to model the impact of the creation of new offences concerning stirring up of hatred and new statutory aggravations to offences involving prejudice relating to the characteristics of age and sex[3]. Within the context of age now being included in the operation of hate crime law, this has been used to estimate the impact specifically of adding the characteristic of sex to the 2021 Act in this BRIA.
Statutory Aggravation
The Financial Memorandum took account of a number of different factors that could lead to increased costs as a result of the creation of new statutory aggravations. These were:
- evidence that a higher proportion of aggravated crimes are prosecuted in court than crimes without a statutory aggravation.
- evidence that aggravated crimes are more likely to result in the court imposing a custodial or community sentence when the accused is convicted.
- the possibility of increased reporting of cases that do not currently get reported because some victims perceive that the justice system is taking these crimes more seriously.
The Financial Memorandum developed in 2020 modelled three scenarios for additional costs arising from additional aggravated offences as a result of the creation of the new aggravations of age and sex.
| Scenario | Total Additional Aggravations | Of which relate to existing reported crimes | Of which relate to newly reported crimes |
|---|---|---|---|
| One | 50 | 40 | 10 |
| Two | 100 | 80 | 20 |
| Three | 200 | 160 | 40 |
At this point in time (November 2025) following the introduction of age as a characteristic into hate crime law in April 2024, the Scottish Government does not yet hold any data on the total number of cases in which the age aggravation has been libelled or proven as official statistics are not yet available for 2024-25. However, in June 2025, COPFS published data on the number of crimes reported with hate crime aggravations in 2024-25[4]. This found that 88 charges with an age aggravation had been reported to them in 2024-25.
The 2020 Financial Memorandum did not try to separate out the impact of adding the characteristic of sex from the characteristic of age, but did note at paragraph 58 that “Stakeholder engagement suggested that sex was likely to lead to a higher number of additional aggravations than age would, although this was anecdotal.”
For the purpose of estimating the impact of adding the characteristic of sex, it has therefore been assumed that 80% of additional aggravations arising from addition of age and sex into hate crime will relate to the characteristic of sex.
While the number of charges reported to COPFS has typically significantly exceeded the number of cases prosecuted[5], for the purpose of making an estimate of the number of cases involving ‘sex’ aggravation we have used this figure of 88 age-related hate crime charges reported to COPFS as a ‘central estimate’ to estimate the effect of adding the characteristic of sex:
| Scenario | Total Additional Aggravations | Of which relate to existing reported crimes | Of which relate to newly reported crimes |
|---|---|---|---|
| One | 175 | 140 | 35 |
| Two | 350 | 280 | 70 |
| Three | 700 | 560 | 140 |
Offences of stirring up hatred
The SSI adds the characteristic of sex to the offences concerning stirring up of hatred at section 4 of the 2021 Act. This will result in an increase in the number of offences of stirring up of hatred that are investigated and prosecuted. While this is difficult to quantify, it is expected that the number of such offences will be very small.
This is based on data concerning the offences of stirring up racial hatred, currently contained in the 2021 Act, and previously contained in the Public Order Act 1986 and offences of stirring up religious hatred during the 7 years in which the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was in effect. This shows in the 10 years between 2013/14 and 2022/23 there were 5 people proceeded against for offences of stirring up racial hatred, and in the 7 years that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was in effect, 7 people were proceeded against for offences of stirring up religious hatred at section 6(5) of that Act.
The 2020 Financial Memorandum modelled scenarios estimating the impact of there being between 1 and 3 “new” charges as a result of the introduction of new stirring up hatred offences[6]. For the purpose of this assessment of the impact of adding the characteristic of sex to the 2021 Act, it has been assumed that doing so will result in one new charge for an offence of stirring up hatred each year being brought that would not otherwise have been prosecuted using an existing offence[7].
We have set below the impact of these additional cases on affected bodies
Police Scotland
There will be one-off costs in updating the training and standard operating procedures to reflect the addition of the characteristic of sex to the 2021 Act. Police Scotland have estimated that these costs to be around £395,500 in total. Of this, £40,000 relates to technical work to amend the National Crime and Case Model and £357,500 of ‘opportunity cost’ in terms of staff resource requiring to be reallocated. Of those, £85,000 is for the resourcing of the project to manage work relating to the addition of the characteristic of sex to the 2021 Act, and £272,500 relates to police time for the training of all officers up to the level of Chief Inspector.
The creation of an offence of stirring up hatred against a group of people defined by reference to their sex may result in more incidents being reported to the police. While most, if not all, of these incidents would almost certainly amount to another existing criminal offence (in particular, threatening and abusive behaviour or breach of the peace) increased awareness may lead to a greater willingness to report to the police.
Equally, the creation of a statutory aggravation relating to sex may raise awareness of hate crime of this kind and lead to an increase in reports being made to the police. However, as set out in table 2 these numbers are likely to be very small when set against the overall volume of police business and can be accommodated within their normal day-to-day activities.
The Crown Office and Procurator Fiscal Service
There will be one-off costs for COPFS in updating their training materials, guidance and providing training to staff on the effect of the addition of the characteristic of sex. They will also need to update the COPFS Case Management System and Police Scotland ‘Criminal History System’ interface, which is an interface between the COPFS and Scottish Courts and Tribunals Service (SCTS) systems. It is estimated that the maximum costs associated with these changed would be around £55,000.
Using the figures provided in the Financial Memorandum for the Hate Crime Bill and adjusting for inflation, it is estimated that the annual recurring additional costs to COPFS of prosecuting offences aggravated by the characteristic of sex will be between £92,000 and £368,000 and the annual recurring costs of prosecuting offences of stirring up hatred on grounds of sex will be £3,000.
The Scottish Prison Service
There will be small one-off costs for the Scottish Prison Service as they may require to update their hate crime Equality and Diversity course notes and guidance and may need to update their procedures and IT systems to reflect the change in the criminal law. These changes should be incorporated into routine review and update processes to ensure that systems are up-to-date and reflect changes to the criminal law.
There may also be costs if the new aggravation and stirring up of hatred offence lead either to increases in the length of prison sentences and/or the number of offenders sentenced.
Using the figures provided in the Financial Memorandum for the Hate Crime Bill and adjusting for inflation, it is estimated that the annual recurring costs to SPS of additional prison places for people convicted of offences aggravated by the characteristic of sex is estimated to be between £280,000 and £1,112,000 and the annual recurring costs of additional prison places for people convicted of offences of stirring up hatred on grounds of sex will be £8,000.
The Scottish Courts and Tribunals Service
The Scottish Courts and Tribunals Service (SCTS) will have to update staff guidance and training materials but associated costs for these aspects will be absorbable within current budgets. No changes will be required to the criminal case management system, given the extensive work which took place as part of the 2021 Act implementation therefore there should be no significant one-off costs.
There will be recurring costs arising from the requirement to state and record the reasons for differences in sentence as a result of the aggravation of offences relating to sex. This will result from additional court time and associated judicial and SCTS staff and accommodation resources that would be required in response to an increase in the number of court cases.
Using the figures provided in the Financial Memorandum for the Hate Crime Bill and adjusting for inflation, it is estimated that the annual recurring additional costs to SCTS relating to the extension of the statutory aggravation to the characteristic of sex will be between £70,000 and £280,000 and the annual recurring costs arising from the creation of an offence of stirring up hatred on grounds of sex will be £2,000.
Scottish Legal Aid Board
There may be costs if the new aggravation and stirring up hatred offence increase the number of people who are granted criminal legal aid. Based on the estimates for the increase in the number of cases set out above, and using the figures provided in the Financial Memorandum for the Hate Crime Bill adjusted for inflation, it is estimated that the annual recurring costs for the Scottish Legal Aid Board from the addition of the characteristic of sex to the statutory aggravation will be between £96,000 and £384,000 and the annual recurring costs arising from the extension of the offence of stirring up hatred to the characteristic of sex will be £2,000.
Local Authorities and the Third Sector
The addition of the characteristic of sex to the 2021 Act may result in additional costs for local authorities due to an increase in the number of Community Payback Orders that will be undertaken by the Scottish Criminal Justice Social Work Services. (SCJSWS).
Using the estimates contained in the Financial Memorandum for the Hate Crime Bill for the 2021 Act adjusted for inflation, it is estimated that the annual costs for SCJSWS of the addition of the characteristic of sex to the statutory aggravation will be between £35,000 and £140,000 and the annual recurring costs arising from the extension of the offence of stirring up hatred to the characteristic of sex will be £1,000.
Summary of estimated costs
Addition of characteristic of sex to aggravation of offences by prejudice – recurring costs
| Low | Medium | High | |
|---|---|---|---|
| COPFS | £92,000 | £184,000 | £368,000 |
| SCTS | £70,000 | £140,000 | £280,000 |
| SPS | £280,000 | £560,000 | £1,120,000 |
| SLAB | £96,000 | £192,000 | £384,000 |
| SCJSWS | £35,000 | £70,000 | £140,000 |
| Total | £573,000 | £1,146,000 | £2,292,000 |
Addition of characteristic of sex to offence of stirring up of hatred – recurring costs
| COPFS | £3,000 |
|---|---|
| SCTS | £2,000 |
| SPS | £8,000 |
| SLAB | £2,000 |
| SCJSWS | £1,000 |
| Total | £16,000 |
One-off Implementation costs
Police Scotland - £395,000
COPFS - £55,000
Total = £450,000
Other impacts
Scottish firms’ international competitiveness
When the Hate Crime and Public Order (Scotland) Bill (“the Bill”) was being developed, the Scottish Government undertook a full public consultation prior to introducing the Bill in Parliament. This did not identify any grounds on which this legislation would affect Scottish firms’ international competitiveness.
Benefits to business
The addition of the characteristic of sex to the 2021 Act is not anticipated to have any direct impact on businesses either positive or negative.
Small business impacts
The addition of the characteristic of sex to the 2021 Act is not anticipated to have any direct impact on small businesses.
Investment
The addition of the characteristic of sex to the 2021 Act is not anticipated to have any direct impact on investment in Scotland.
Workforce and Fair Work
The addition of the characteristic of sex to the 2021 Act will not have any direct impact on the workforce or Fair Work First principles.
Climate change/ Circular Economy
The addition of the characteristic of sex to the 2021 Act will have no direct impact on businesses’ ability to contribute to climate and circular economy targets.
Competition Assessment
The addition of the characteristic of sex to the 2021 Act will have no competitive impacts; therefore a competition assessment has not been completed.
Consumer Duty
The addition of the characteristic of sex to the 2021 Act will have no direct impact on the price of goods and services.
Contact
Email: ellis.reilly@gov.scot