Response 645227619

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What do we mean by hate crime legislation and why does it exist?

Do you consider that the working definition, discussed in this chapter, adequately covers what should be regarded as hate crime by the law of Scotland?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
The animus based definition is sufficiently broad to encompass the essential features of hate based crime, yet ensures an appropriate threshold for criminal conduct.

How can we prevent tensions and misunderstandings arising over differences in what is perceived by victims, and others, to be hate crime, and what can be proved as hate crime?

Please give reasons for your answer.
It is impossible to completely eradicate tensions in this regard as hate crime and conduct falling short of the threshold can inevitably stir emotions, either objectively or subjectively causing offence. It is desirable to create a degree of uniformity and consistency in approach in assessing what amounts to a criminal and therefore recordable offence. Agreed standards and guidelines should be issued to the prosecuting authorities and adequate training provided across the board to all members of Police Scotland, members of the judiciary and the legal profession in general, in order to gain a better understanding of what factors are relevant in assessing criminal conduct. The provisions in England allow for detailed guidance from the CPS and there is also the College of Policing Hate Crime Operational Guidance (2014) which contains guidance on the information the police should be considering. The issue of proof should perhaps be simplified so that the requirement for corroboration and sufficiency are harmonised.

Should we have specific hate crime legislation?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
There is a need for a consolidation act which brings together all of the various offences and aggravations which amount to hate crime. It is already recognised that the scattered nature of the provisions could be made more readily accessible. A streamlining process is perhaps overdue. Appropriate guidance could be issued in terms of the overarching principles and implementation of any proposed legislation. The animus based model can be utilised to modernise a broad range of offences against groups or individuals, particularly vulnerable and minority background entities. Judicial guidance in terms of the interpretation of art and part offending should also be provided.

Statutory aggravations: some issues

Do you believe there is a need to bring all the statutory sentencing provisions, and other hate crime offences, together in a single piece of legislation?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
See answer to previous question.

Do you consider that the current Scottish thresholds are appropriate?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
The current thresholds are appropriate. In lowering the threshold and allowing any form of prejudice to constitute a criminal offence may render the provision unworkable in practice. The dual characteristic involved in the threshold ensures the animus based provision can be interpreted and enforced effectively. There is less room for ambiguity or confusion.

Should evincing malice and ill-will be replaced by a more accessible form of words?

Please select one item
Ticked Yes
No
Don't know
If you support that, please give examples of what might be appropriate.
The term ‘evincing malice and ill will’ however may appear outdated. Even a minor adjustment may update the provision to make it sound more contemporary or accessible. Replacing the word ‘evincing’ with ‘displaying’ or ‘expressing’ may be sufficient. An alternative may incorporate the expression or display of hostility towards the relevant individual or group. The CPS in England use definitions agreed with the National Police Chiefs' Council to identify racist or religious incidents/crimes. The definition includes: “Any incident/crime which is perceived by the victim or any other person to be motivated by hostility or prejudice based on a person's race or perceived race" or “Any incident/crime which is perceived by the victim or any other person to be motivated by a hostility or prejudice based on a person's religion or perceived religion."

Should an aggravation apply where an offence is motivated by malice and ill-will towards a political entity (e.g. foreign country, overseas movement) which the victim is perceived to be associated with by virtue of their racial or religious group?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
An aggravation should not be relevant in such circumstances. Legitimate criticism of political entities is a fundamental democratic right and a person’s Article 10 rights should be protected insofar as legitimate freedom of expression is concerned. It is recognised that the expression of certain views may be controversial but these should not be unduly restricted. Any necessary restrictions to prevent disorder should be proportionate to legitimate aims within a democratic institution. There is a danger in conflating the two issues and racism or prejudice in a criminal context should be readily identifiable in the absence of any politically motivated factors. The offence should be capable of standing alone avoiding ambiguity about any legitimate politically motivated conduct.

Should an aggravation apply where an offence is motivated by malice and ill-will towards religious or other beliefs that are held an individual rather than a wider group?

Please select one item
Yes
No
Ticked Don't know
Please give reasons for your answer.
This is a potential minefield. Individual beliefs, may innumerable and add to the uncertainty of the process. The indiscriminate and unquantifiable nature of such beliefs may make it impossible to legislate and issue guidance on what amounts to a criminal offence and how to apply general principles in such specific cases. The narrower or more individualistic the belief system, perhaps the more personal the nature of the abuse or hatred. Such conduct, whilst causing offence may simply infer an offence against an individual in its own right in the absence of any aggravation. The law readily affords a common law discretion to the sentencer to consider whether the circumstances of an offence amount to an aggravation per se.

Do you have any views about the appropriate way to refer to transgender identity and/or intersex?

Do you have any views about the appropriate way to refer to transgender identity
This matter requires consultation with individuals who identify with the particular gender based criteria and should be flexible enough to allow individuals an element of preference, respecting their views. Questions as to identity are personal with elements of objectivity and subjectivity, essentially fluid concepts, both variable and evolving.

Does the current legislation operate effectively where conduct involves malice and ill-will based on more than one protected characteristic?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
There does appear to be a lacunae in this regard. Multiple aggravations may be infrequent but the patchwork nature of the legislation does not make it easy to achieve consistency and may present as an encumbrance in prosecuting such offences. Whilst under reporting may be a feature, there is a need to guard against a reluctance to prosecute by the authorities due to perceived confusion about how to properly proceed or charge/categorise cases. This is why consolidation may be appropriate now so that a system can be devised or at least considered to accommodate multiple aggravations based on malice towards multiple protected characteristics. It may also be appropriate to devise a formula or sliding scale system to assist the sentencer and create more certainty or expectation in the process. Specific guidance is required in relation to the interpretation of art and part guilt in such cases.

Should the aggravation consistently be recorded?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
Accurate recording of statistics is always beneficial. Guidance should also be provided in art and part cases and whether recording should reflect such a basis or finding.

Is it necessary to have a rule that the sentencing judge states the difference between what the sentence is and what it would have been but for the aggravation?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
It is unnecessary to state what the sentence would have been in the absence of an aggravation as it is superfluous.

Standalone offence: section 50A Criminal Law (Consolidation) (Scotland) Act 1995: racially aggravated harassment and conduct

Is this provision necessary?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
On balance, there should be a standalone offence for racially aggravated harassment and conduct. Consideration requires to given to the need for corroboration in respect of any racial aggravation and a degree of uniformity or harmonisation is required across similar provisions. The current offence under s.50A of the Criminal Law (Consolidation)(Scotland) Act 1995 was created as a reaction to concerns that the problems of racial harassment and racially motivated violence was not treated seriously enough by the criminal justice system. Prejudice and hatred does not appear to have diminished. Offending against minority groups and individuals continues to persist and the profile of such offending requires to be heightened. It is much easier now to offend online and through social media. The law requires to evolve to counter such hate crimes and target any particular need in society. The frequency of race hate crime and religiously motivated offending across the UK is alarming, despite the trend being less severe in Scotland. The right to live free from abuse and harassment in a democratic society is a fundamental one which requires to be protected. It may be time for a tougher deterrent and sentencing guidelines, particularly for repeat offenders.

Should the concept of a standalone charge be extended to other characteristics?

Please select one item
Yes
No
Ticked Don't know
If so, which groups? Please give reasons for your answer.
A report on Hate Crime in Scotland 2016-17 brings together figures on race crime, and on crime motivated by prejudice related to religion, disability, sexual orientation and transgender identity. It also includes figures for charges under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The main findings are that racial crime remains the most commonly reported hate crime. There were 3,349 charges reported in 2016-17, 10 percent fewer than in 2015-16, and the lowest number reported since 2003-04. The number of religiously aggravated charges reported, at 673, is 14 percent higher than in 2015-16. This is the highest number reported since 2012-13. It may be that there is a correlation between these statistics but there is a lack of empirical data or analysis of this particular feature. There is evidence of a lack of confidence in the system and underreporting of offences. It is important to maintain public confidence and integrity in the system of justice and ensure parties are not dissuaded from adequately reporting criminal offences.

Stirring up hatred and online hate crime

Should there be offences relating to the stirring up of hatred against groups?

Please select one item
Ticked Yes
No
Don't know
If so, which groups? Please give reasons for your answer.
There should be an identifiable provision resulting in suitable recording of such offences. As conceded, the majority of these offences are prosecuted under existing legislation such as s.38 of the Criminal Justice and Licensing (Scotland) Act 2010, and s.127 of the Communications Act 2003, but these may mask the depth of the problem in relation to incitement offences in general. The inclusion of the provision in s.6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 artificially limits the applicability of the provision to football related incidents. Threatening and violent conduct and grossly offensive behaviour should be detected and prosecuted in a liberal democratic society. Whilst there have been similar provisions in England in terms of s.18 of the Public Order Act 1986, hate speech which is overtly threatening and likely to incite violence or disorder should be guarded against. Whilst it is equally important to ensure there is no infringement of legitimate free speech, debate or protest, and freedom of thought, conscience and religion, the right is not absolute. There is sometimes a clear delineation between acceptable and even robust criticism, amounting to insulting behaviour and illegitimate threatening or grossly offensive behaviour. Although it has been felt in England that there has not been a need to extend the provisions to disability and gender, there is arguably a need to extend the provisions in the case of religious and racial hatred. This is particularly in light of the increase in online incitement towards racial groups and religious hatred or violence.

If there are to be offences dealing with the stirring up of hatred against groups, do you consider that there needs to be any specific provision protecting freedom of expression?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
The protection of freedom of expression is suitably expressed in article 9 of the ECHR and is capable of implementation by member states in a compatible manner.

Does the current law deal effectively with online hate?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
Insufficient resources coupled with an insufficient appetite towards detection, identification, and prosecution of these crimes hinders prosecution efforts and social cohesion.

Are there specific forms of online activity which should be criminal but are not covered by the existing law?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
The ability to enforce cooperation by social media providers and aid enforcement requires greater regulation of corporate entities, increasing corporate responsibility, and accountability in detecting crime in a public forum

Should this be tackled through prosecution of individuals or regulation of social media companies or a combination of the two?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
A combination of prosecutions and greater regulation is required. The major social media companies perhaps due to greater exposure are more prone to abuse, but are also better equipped to tackle the issues, through appropriate allocation of resources and policy enforcement.

Offensive behaviour at football

How clear is the 2012 Act about what actions might constitute a criminal offence in the context of a regulated football match?

How clear is the 2012 Act about what actions might constitute a criminal offence in the context of a regulated football match?
The 2012 Act is not clear about what actions might constitute a criminal offence in the context of a regulated football match. The Government has failed to properly define the behaviour element of the offence and when that behaviour becomes offensive. The descriptions of what may constitute offences are unclear and broad which has led to difficulties with its implementation for police officers, solicitors and judges presiding over cases. In addition the offences set out in the Act extend the reach of the criminal law too far into the realm of freedom of expression.

Should sectarian singing and speech, and the waving of banners and making gestures of a sectarian nature at a football match be the subject of the criminal law at all?

Please select one item
Ticked Yes
No
Don't know
If so, what kind of behaviour should be criminalised?
Behaviour of a sectarian nature should be subject to criminal law. However, it is submitted that any behaviour of this nature, wherever it takes place, should be criminalised. This should not be limited to behaviour which simply takes place at a football match. Existing provisions of the criminal law, such as section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and the common law offence of breach of the peace already criminalises behaviour which is abusive or threatening and also behaviour which is severe enough to causes alarm to ordinary people and threaten serious disturbance to the community. It is submitted these are appropriate tests to ascertain whether the conduct complained of is criminal.

Does equivalent behaviour exist in a non-football context?

Please select one item
Ticked Yes
No
Don't know
Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
There are already examples of equivalent behaviour taking place on other occasions such as parades. It is clear that it is entirely wrong that equivalent behaviour can be criminal in one setting but not in the other. The behaviour is what is criminal and there must be consistency and fairness that equivalent behaviour is either an offence or it is not and should not be dependant on whether someone is attending a parade or a rugby match or a football match.

Is it beneficial to be able to prosecute in Scotland people who usually live in Scotland for offences committed at football matches in other countries?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
There does not appear to be any benefit to this legislation. It would appear to be legislation that has been rarely used. It is submitted that where football matches take place in other countries supporters are subject to the laws in that country. However clubs may also be punished by UEFA, FIFA or the SFA if supporters misbehave and the penalties from these organisations should be sufficient to discourage supporters from misbehaving when in another country without the requirement that legislation should apply extra-territorially.

Should a similar provision apply to non-football related hate crime?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
Again, the same principles apply relating to consistency and fairness that a set of supporters attending a football match in another country should not be subject to different laws to someone attending a rugby match in another country.

Is it appropriate to have a requirement that behaviour is or would be likely to incite public disorder in order for it to amount to a criminal offence?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
It is an area of concern that the existing legislation contains no requirement for an intention to incite public disorder. It is submitted that the existing provisions of criminal law are sufficient to prosecute offensive behaviour and that there is no need for any requirement that the behaviour is or would be likely to incite public disorder. The common law offences of breach of the peace and uttering threats and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 are sufficiently defined that there is no need for any requirement.

Is there any conduct currently subject to prosecution under section 1 of the 2012 Act which would not be covered by pre-existing common law or legislation?

Please select one item
Yes
Ticked No
Don't know
Please give reasons for your answer.
It is submitted that pre-existing common law and legislation covers the conduct subject to prosecution under section 1 and that if the 2012 Act was repealed there would be no gap in the criminal law. As already stated the common law offences of breach of the peace and uttering threats deals with this type of behaviour along with section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

Should a football club be able to apply to the court for a football banning order?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
A football club has a number of sanctions available to it already. It can revoke a supporters season ticket without compensation and can also ban a supporter from attending matches for a period of time or indefinitely. The club can also stop a supporter from applying for or purchasing tickets for away matches. However it may be that a football banning order is easier to enforce and has greater penalties if a supporter does breach a banning order rather than a sanction. There does not appear to be any reason why a football club should not be able to apply for a banning order.

Should the law be extended to other groups?

Do you consider any change to existing criminal law is required to ensure that there is clarity about when bullying behaviour based on prejudice becomes a hate crime?

Please select one item
Ticked Yes
No
Don't know
If so, what would you suggest?
Given the extension of domestic abuse provisions and the concept of ‘harm’, under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 there may be an argument to extend the provisions to bullying behaviour in the workplace or within institutions.

Do you think that specific legislation should be created to deal with offences involving malice or ill-will based on:

Do you think that specific legislation should be created to deal with offences involving malice or ill-will based on:
Whilst age and socioeconomic considerations represent more arbitrary features with the former already potentially amounting to an aggravation at both extremes of the spectrum, there is a strong argument for gender based discrimination to be included. References to immigration status are likely to be covered by the provisions against race discrimination racial. Any others not already covered are likely to be inspecific and at present, unnecessary.

Other specific issues

Do you have any views as to how levels of under-reporting might be improved?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
Challenging under-reporting requires a cultural shift coupled with a greater allocation of resources. There are barriers to reporting comprising fear, stigma, social pressures, commitment, confidence in the system, time, delay, cost implications all of which require to be addressed to change attitudes and expectations. Education is key in promoting tolerance and integration at an early stage.

Do you consider that in certain circumstances press reporting of the identity of the complainer in a hate crime should not be permitted?

Please select one item
Ticked Yes
No
Don't know
If so, in what circumstances should restriction be permissible?
Press reporting restrictions should only be considered in the cases of children or extremely vulnerable entities or where there is a credible threat to personal safety.

Do you consider that a third party reporting scheme is valuable in encouraging reporting of hate crime?

Please select one item
Yes
No
Ticked Don't know
If so, how might the current scheme be improved?
Another question of suitable resource allocation and training.

Are diversion and restorative justice useful parts of the criminal justice process in dealing with hate crime?

Please select one item
Ticked Yes
No
Don't know
Please give reasons for your answer.
Diversion and restorative justice should not generally be utilised in cases of serious hate crime. Whilst it is a question of proportionality, there is a danger of diminishing the impact of such offences desensitising offenders if they consider a soft sentence is the only likely outcome.

Should such schemes be placed on a statutory footing?

Please select one item
Yes
Ticked No
Don't know

About You

What is your name?

Name
Glasgow Bar Association

Are you responding as an individual or an organisation?

Please select one item
(Required)
Individual
Ticked Organisation

What is your organisation?

Organisation
Glasgow Bar Association