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The Hate Crime and Public Order (Scotland) Bill was passed by the Scottish Parliament last week. Yet, 32 MSPs voted against the Bill, with criticisms levelled at both what the legislation does and doesn’t do. With the creation of a new criminal offence as well as extending the possible aggravations to existing offences, the passing of the bill is a significant development. But what effect does it have?

The first draft of the Bill was introduced in April 2020 and aims to consolidate and extend the existing legislation to address the modern and continuing problems with hate crime.

Hate crime is broadly defined as a crime motivated by prejudice against a particular group. In many legal systems this motivation will serve as an aggravation to a crime in terms of charge or sentencing. The new legislation contains a list of characteristics to define the instances in which an offence can be aggravated. These are:

  1. Age
  2. Disability
  3. Race, colour, nationality (including citizenship), or ethnic or national origins
  4. Religion or, in the case of a social or cultural group, perceived religious affiliation
  5. Sexual orientation
  6. Transgender identity
  7. Variations in sex characteristics

Age is a new addition to this list. There is not a high incidence of offences motivated by age based prejudice but its inclusion is to make sure that where this does arise it is taken seriously. It is also sufficiently broad so as to include all age groups, instead of limiting protection to the elderly or children only.

One characteristic which has not been included is sex. With recent high profile instances of violence against women, and with the campaigns to raise awareness of domestic abuse during lockdown (the majority of victims continue to be female) it is understandable that this omission has been the subject of attention. A proposed amendment to include prejudice against women as an aggravator was defeated prior to the Bill being passed. However, the exclusion from this particular piece of legislation is not the end of the road for greater action on offences motivated by the sex or gender of the victim. A government working group has been established to look at misogyny and criminal justice in Scotland as a separate issue.

Perhaps the greatest controversy with the Bill comes in the creation of the offence of stirring up hatred, and its extensive scope. The offence of stirring up racial hatred has been around since 1986 but was of course much narrower. The phrase “stirring up hatred” easily lends itself to connotations of inciting violence or organised campaigns against particular groups. In these contexts, hardly anyone would argue against criminalising conduct. The concern is that the new offence has the potential to go beyond these scenarios, and into spheres which are not normally criminalised. The offence covers not only threatening behaviour more akin to what would be traditionally viewed as a crime, but also the communication of insulting material.

The often cited example from opponents of the Bill is that it is possible that a private conversation between family members, in their own home, could be criminalised. Again, an amendment was proposed to address this criticism, but was rejected. The amendment would have created a “private dwelling” defence to the offence. Instead, the only positive defence remains that the behaviour or communication of material was, in the particular circumstances, reasonable. The test of what is reasonable includes explicit reference to the right to freedom of expression.

Freedom of expression and the right to a private and family life are the rights which those criticising the Bill have highlighted as being at risk. When considering the more extreme examples of where prosecutions could arise, an interference with these rights is possible. However, it is not competent for the Scottish Parliament to legislate in a manner which is incompatible with the Human Rights Act. Further, hate speech, which is the type of communication likely to lead to prosecutions for stirring up hatred, is not a protected category of speech. A sensible interpretation of the types of conduct which ought to be criminalised by the new offence should limit the instances in which there is true concern.

Nevertheless, the criminalisation of conduct which may previously have been lawful, however distasteful to the average person, is a serious development. The Bill has rightly been subject to extensive scrutiny and discussion since it was introduced. Notably, the initial form would not have required intent for an individual to have been convicted of stirring up hatred. There had been concern that prosecutions could have been made for selling a book which expressed certain viewpoints, or for participating in discussions on social issues. The Bill has, over the course of its progression through Parliament, been altered to avoid the risk of inadvertently criminalising these type of actions.

As with previous attempts to use criminal law to tackle prejudices in Scotland, it will take time to know how the legislation will be utilised, particularly the broad offence of stirring up hatred. The Scottish Government has reiterated that the intention of the Bill is to tackle the harms connected to prejudice and hate crime, rather than to restrict a free exchange of ideas. Yet, if abused or applied without the required consideration of reasonableness and protected rights, the Orwellian concerns of its opponents may not be unfounded.

Blog by Amy Haughton, Solicitor

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