Independent Review of Hate Crime Legislation in Scotland

The working definition provided, in our view, would not make an ‘identity’-motivated crime distinct compared to a vulnerability-motivated crime. For instance a crime against an older person motivated by their age may be covered by this definition. However, it could be argued that the motivation for this crime was the victim’s vulnerability rather than ‘malice and ill-will,’ or indeed, hatred. CRER believes the key distinguishing factor in what is understood as a ‘hate crime’ is the identity of the victim, rather than perceived vulnerability (and assumptions relating to that vulnerability). Furthermore, we believe a strict definition of prejudice as a preconceived opinion not based on fact or experience is too limited in regard to hate crime definitions. Some perpetrators of so-called hate crimes have discriminatory attitudes towards certain groups which are not preconceived or pre-judged; rather, they are very deeply embedded. As such, we find this working definition inadequate.

While perhaps beyond the scope of this legislation review, we also question whether the term ‘hate crime’ is helpful. From engagement with victims of hate crime, we find that there is hesitation to report or confusion about whether an incident was a ‘hate crime,’ as the bar for hate is seen as quite high. A similar concern was expressed by the Independent Advisory Group on Hate Crime, Community Cohesion, and Prejudice. CRER also notes that a crime based on stereotypes or prejudices about a certain protected group is not necessarily motivated by hate, as the example of R vs Aslett given in “A Comparative Analysis of Hate Crime Legislation” illustrates.

Given the inadequacies of the phrase ‘hate crime,’ an alternative term such as ‘ ‘identity’-based crime’ may better clarify that the motivation for the crime is a particular immutable characteristic of the victim, rather than ‘hatred’ for this characteristic, which we believe would offer more clarity to victims.

Further consideration of the use of the term ‘hate crime’ is needed, as we find from our experience with BME communities that it is not particularly helpful or well-understood. We hope that this review will call on bespoke work to be conducted on this subject.

As we articulated in our response to the previous question, tensions and misunderstandings arising over what is perceived to be a hate crime could be alleviated by further considering whether the term ‘hate crime’ is appropriate and useful, and, especially, whether use of the term (and particularly the word ‘hate’) sets the bar too high for victims to believe that incidents qualify.

However, we know that victims are less interested in what these crimes are called, and more interested in action taken to prevent and adequately address them. Distinguishing certain crimes as hate crimes due to their motivation sends an important message to society about unacceptable behaviours and beliefs. When considering these tensions and misunderstandings, the focus should always be on the message sent to wider society, as well as the potential effect on victims.

In terms of racist hate crimes, CRER does not see an issue with continuing to uphold the post-Macpherson approach to recording an incident as a racist incident if it is perceived by the victim (or another person) to be so. The tension articulated in the consultation document pertains largely to the prosecution of the crime rather than its investigation, whereas the Macpherson definition relates to the police investigation and recording of the incident. It is our understanding that an incident which is perceived to be a racist incident is recorded and treated accordingly, until such point that it is named a crime (and potentially a racist hate crime).

Rather than discontinue use of the post-Macpherson approach, there should be a concerted emphasis on using ‘racist incident’ and ‘racist crime’ in the proper way and making it clear to communities that these terms – and the consequences they indicate - are not interchangeable. Community groups, policy-makers, police, and prosecutors should all contribute towards making this distinction clear. This tension emphasises the need to further consider use of the term ‘hate crime,’ and whether terminology used contributes to tensions, misunderstandings, and underreporting.

In CRER’s view, the benefit of having specific legislation that pertains to so-called hate crime is that it sends a message to society and protected groups that discrimination and inequality of treatment is, as the academic report articulates, condemned by the State.

The introduction of an offence for stirring up racial hatred in the Public Order Act 1986 was believed by legislators at the time to be significant, as it sent a message (as expressed in the House of Commons) that, “people of every race and colour deserve the protection of the law against racist abuse…” Concerns were expressed at the time that the Act did not go far enough to provide protection to communities and properly punish racial hatred. During the passage of the Crime and Disorder Act 1998, the sentiment was put forward that, “we welcome the proposals for the creation of racially aggravated offences, and share the belief that that sends a message that racism is unacceptable in this country.”

It is also worth noting the argument that punishing hate crimes more severely will ultimately deter future hate crimes, both for the perpetrator and potential offenders.

So-called hate crime legislation is important exactly for the message that it sends to perpetrators, victims, and society at large. What remains to be seen is whether ‘hate crime legislation’ is the appropriate term to use to describe this critical legislation.

CRER believes that there is merit in gathering all the relevant statutory aggravations together in a single piece of legislation, excluding the standalone offence for racially-aggravated harassment and conduct. This would send a clear message regarding what society finds as intolerable attitudes and beliefs, provide consistency across the legislation, and offer clarity to communities who may struggle to understand the current piecemeal approach to hate crime legislation.

If this was the approach taken, Ministers may wish to consider adding a separate ‘vulnerability’ related aggravation to pertain to instances in which a quality of the victim was the motivation for the crime, but relating to the victim’s perceived vulnerability rather than malice and ill-will towards a particular group. This also offers the opportunity to ‘double up’ on aggravations if both vulnerability and malice and ill-will were factors motivating the crime.

We will make the argument for keeping the standalone offence for racially-aggravated harassment and conduct distinct from the current statutory aggravations later in this response (Question 11).

In our experience, it does not matter to the victim what legislative terms are used to describe the attitudes held by the perpetrator. Whether ‘malice and ill-will’ are accessible to the general public is not the key issue; it is whether those terms are well-known and understood by Scottish criminal lawyers and whether these terms have strong legislative footing. At the same time, it is important to use a term that communities find useful in their particular context to ensure there is clear understanding among the general public.

As such, we believe the terminology used in courts and used in wider society can differ. While it is important to use accessible language when speaking to communities and the public, the terminology which is most relevant and useful to the courts and legal system should be maintained within the legislation.

CRER understands that equality law (and the specific protected characteristics) pertains to immutable, intrinsic characteristics that an individual or group has that constitute part of an individual or collective identity. We believe that levels of condemnation levied against identity-based crimes will diminish if aggravations are brought forward that do not pertain to the listed, inherent protected characteristics. In addition, CRER share some of the concerns that have been highlighted by various stakeholders regarding the government’s adoption of the International Holocaust Remembrance Alliance’s working definition of anti-Semitism.

In regards to hate crime legislation, CRER believes aggravations should only apply to offences motivated by malice and ill-will towards a protected characteristic, given the intrinsic and inherent nature of these characteristics and their correlation to wider equality law.

As such, an aggravation should not strictly apply in these instances, as it would pertain to the beliefs of an individual rather than the intrinsic characteristics of a wider community. Individual religious beliefs are distinct from membership of an established religious group or belief system, and the law should reflect this.

Given the assertion from the Crown Office and Procurator Fiscal Service that charges can proceed with more than one statutory aggravation, CRER is satisfied that the current legislation allows for consideration of offences based on malice and ill-will relating to more than one protected characteristic. While the current COPFS publication of hate crime statistics includes charges that have more than one hate crime aggravation in its overall figures within each type of hate crime, it may also be useful if a bespoke list was published which detailed these intersectional aggravations in particular.

It may be the case that compiling hate crime aggravations into a singular piece of legislation could clarify better the potential to bring charges forward with more than one statutory aggravation. Guidance associated with this legislation could also detail how data recording and monitoring for this type of incident should be carried out.

Yes, the aggravation should be consistently recorded, as well as collated and published by a specific body at least annually. This allows stakeholders to monitor the situation and determine priorities for future work and evaluate if current strategies are effective.

It should also be necessary to have a rule that the sentencing judge differentiate between what the sentence is and it would have been without the aggravation. This information should also be collated and published annually.

CRER believes that this provision is absolutely necessary. Racial harassment and conduct is a particular type of hate crime which is not simply an attack on an individual, but is something much deeper which undermines an individual’s family, community, and culture. Racist hate crime is also inextricably tied to the idea of white supremacy, which describes the historically-based, institutionally-perpetuated system of exploitation and oppression of continents, nations, and peoples by white groups and nations of the European continent for the purpose of maintaining and defending a system of wealth, power, and privilege.

Racist hate crime remains the most commonly reported hate crime, as it has been since at least 2003/04. In 2016/17, there were 3349 racist hate crimes reported compared to a total of 2359 for all other hate crimes reported combined . Clearly a pernicious problem exists for race that requires a tailored approach.

Not only would removing this standalone offence send the exactly the wrong message at a very volatile time, it would remove the provision used in 44% of racist hate crime charges. While the standalone offence has seen a decrease coupled with an increase in the proportion of charges with a racial aggravation, it is still a charge that can be sufficiently proved with two corroborating sources of evidence in nearly half of charges reported.

As the consultation notes, this offence came about due to concerns that the problems of racial harassment and racially-motivated violence were not treated seriously enough by the criminal justice system. Over 20 years on, BME communities still share these concerns.

During the 2nd reading of the Crime and Disorder Bill 1998 which created this offence, Baroness Amos stated, “I have seen the impact of repeated acts of victimisation and violence on individuals and families and I have seen the build-up of anger, fear, and resentment within ethnic minority communities… We need to instil in our communities confidence that crimes of racial violence and racial harassment will be dealt with seriously. That is why I welcome the Government’s commitment to tackling racial violence and harassment and their determination that the criminal law should be adequate to protect victims of crime which is motivated by intentions amounting to racial hatred.”

The justification raised in 1997 still hold true today; this specific charge is needed to protect victims of crime and to convey the serious nature (and State condemnation) of racial harassment. Rather than needing to aggravate racial harassment with another offence (e.g. threatening/abusive behaviour or breach of the peace), this legislation provides a clear-cut charge to levy and declares that racial harassment is sufficiently criminal in and of itself to be a standalone crime. The standalone charge continues to be used and remains absolutely necessary. CRER would strongly oppose any approaches to removing this provision.

It could be possible to have similar standalone charges for other protected characteristics if demonstrable need is evidenced. However, these charges should not be consolidated into a singular piece of legislation (as we have put forward regarding statutory aggravations), as this will weaken the importance of this standalone charge and will diminish the priority that should be afforded to racial harassment, given the issues outlined in the previous answer.

CRER is not aware of evidence of stirring up of hatred against other groups, which is a stark contrast to the situation for race. White nationalist organisations and even some political parties (e.g. the British National Party) proclaim hateful stances against minority ethnic groups and could be said to stir up hatred for these groups. Racial hatred seems to remain exceptionally permissible.

This is a particular situation compared to other protected groups, and as such, we do not see the necessity for extending this offence to other groups. Nevertheless, if a need for this was evidenced, we would not oppose the creation of separate offences pertaining to the stirring up of hatred for certain groups. However, as with the standalone charge of racial harassment, we would ask that extension not be coupled with consolidation, as this weakens the important, essential, and particular message this offence conveys.

Yes, we would consider that this is needed, notably in the case of religion. While there can be no acceptable reason for expressing hostility or hatred towards an ethnic group, individuals do hold a variety of opinions about the beliefs and practices of different religious groups. These opinions, in a democratic society, should be open to debate and thus, provision for freedom of expression is necessary.

We further note that not all hate speech is hate crime. In this instance, it is the ‘stirring up of hatred’ which is key. This carries the requirement to prove that it was the intention of the potential offender to stir up hatred. While the intention to stir up hatred may be obvious in a situation in which a person condemns a group because of their religion and deliberately encourages violence against said group, a situation in which the potential offender has levied public criticism against a particular religious belief may fall short of this. It is important that this distinction is maintained in any forthcoming legislation.

As the consultation document states, hate crimes which occur online are subject to the same laws that would apply had the crime occurred in person. As such, we do not believe that the legislation is the issue; rather, the problem lies not in the legislation (at least in a race equality context), but in the manner in which such crime is reported, investigated, and prosecuted. There are notable challenges associated with the anonymity of some forms of media (and proving the identity of the perpetrator in these instances) and the vast scale of the use of social media.

To effectively tackle this problem, additional training for police may be needed, alongside a change in distribution of resources to adequately investigate cases. The role of social media platforms providers and online media sources must also be considered further.

As such, CRER is supportive of a three-pronged approach to the issue: 1) educating the public about what is illegal online behaviour, 2) increasing resources to effectively prosecute individuals, and 3) increasing regulation of social media companies. One of these on their own will not be sufficient to tackle the issue.

The public must understand better what is considered illegal activity, and what actions to take when this is encountered. It is unfair to place the burden of tackling online hate solely with police and prosecutors, but cases must still be brought forward not only to offer justice to victims, but to demonstrate the unacceptable nature of such activity. And, as the scope of the problem is too large to be dealt with solely by the Scottish criminal justice system, significant deliberation must be given to the role of social media providers going forward. This review should call for specific work to be taken forward on the feasibility of regulating social media providers.

However, we again stress that not all hate speech is hate crime. The use of bigoted or prejudiced language in itself, for example, should not automatically violate hate crime law. However, if the language was used in a way which would likely cause fear and alarm, such as threats of violence or promotion of public disorder, this would likely constitute a crime. This distinction must be made clear, and resources should be allocated to the most serious of offences.

CRER is supportive of a three-pronged approach to the issue: 1) educating the public about what is illegal online behaviour, 2) increasing resources to effectively prosecute individuals, and 3) increasing regulation of social media companies. One of these on their own will not be sufficient to tackle the issue.

The public must understand better what is considered illegal activity, and what actions to take when this is encountered. It is unfair to place the burden of tackling online hate solely with police and prosecutors, but cases must still be brought forward not only to offer justice to victims, but to demonstrate the unacceptable nature of such activity. And, as the scope of the problem is too large to be dealt with solely by the Scottish criminal justice system, significant deliberation must be given to the role of social media providers going forward. This review should call for specific work to be taken forward on the feasibility of regulating social media providers.

CRER supports the repeal of this Act. For CRER’s organisational view on this matter, please see our recent submission to the Justice Committee’s inquiry of the Repeal Bill (https://www.crer.scot/consultation-responses).

CRER believes that if an act is criminal, it is criminal regardless of whether it occurs in a school environment (once the perpetrator has reached the age of criminal responsibility). As such, a change in existing criminal law is not needed, but school guidance may need to be revised to better provide prescriptive information for teachers. Consideration should also be given to whether the term ‘bullying’ is always appropriate, especially if an act crosses the line into a crime. As with hate incidents and hate crime, care must be taken to use the right terminology.

In general, CRER emphasises that offences involving malice and ill-will should be limited to those groups with inherent, intrinsic protected characteristics (i.e. those which are specified by the Equality Act 2010). To extend beyond this would dilute the impact of the legislation and disrupt the equality message this puts forward.

• Age – CRER believes that offences against older people are often motivated by perceived vulnerability rather than malice and ill-will. As such, it may be better to create a vulnerability related aggravation which is separate from the offences motivated by malice and ill-will. Where an offence is committed against a young person, in the majority of cases, we understand that the malice and ill-will which motivated the crime would likely be based on another characteristic of the young person (e.g. race, sexual orientation, disability), rather than the young person’s age. As such, more prescriptive guidance on ‘prejudice based bullying’ in schools (and its potential criminality) would be sufficient to address concerns.

• Gender – CRER is cognisant of the stance of Engender and other women’s groups that the creation of a gender-specific aggravation would lead to inconsistent demarcation between inherently misogynist crimes such as rape and domestic abuse, and crimes such as breach of the peace that may incorporate misogynist language. While CRER, as a race equality organisation, does not have a stance on the creation of a standalone offence in relation to gendered hate crime, we would again stress that standalone offences should not be consolidated into a singular piece of legislation, as this will compromise the effectiveness of the individual offences.

• Immigration status – As this characteristic is not inherent and may be subject to change, we do not believe this would be an appropriate addition to the list of offences. We also note that often presumptions are made about immigration status based on someone’s race or ethnic background. In most instances, we understand that an offence would be capable of being prosecuted as being racially aggravated, given that the term ‘racial group’ is defined in hate crime legislation as persons defined by reference to race, colour, nationality (including citizenship), or national/ethnic origins. Guidance describing how this may apply specifically to refugees and asylum seekers may be needed and would go a ways towards addressing the concerns raised by stakeholders.

• Socioeconomic status – As this characteristic is not inherent and someone’s socioeconomic status may change, we do not believe this would be an appropriate addition to the list of offences.

• Membership of the Gypsy/Traveller community – We believe that, as Gypsy/Traveller is recognised as a distinct ethnic group in the Scottish Census and Scottish Government policy, offences motivated by malice and ill-will against this group should be prosecuted as being racially aggravated. Guidance should make this clear.

Given the seriousness of this matter (as noted in the consultation document), we are disappointed that this issue has not been afforded a higher priority in the review, as we believe this is the issue that has the greatest impact on communities. Unless this issue is tackled, robust legislation will not make the needed change. As such, although this issue may fall short of the narrow brief of this consultation, we would ask that the review strongly recommend further work is taken forward, whether through the Morrow Review or another mechanism, and that the findings of any additional work be taken into account before any recommendations from this review are finalised.

Levels of underreporting may be improved by ensuring victims understand what hate crime is and how to report it, receive support throughout the process, and have confidence in the police and criminal justice system to adequately understand and respond to racial hate crime.

As we have iterated in our consultation response, consideration must be given to use of the term ‘hate crime,’ as it may set the bar too high for victims to classify offences as motivated by hatred. The term used should ensure that it is understandable that the identity (or presumed identity) of the victim is the motivation for the crime, as we believe this will provide clarity for groups who may be targeted.

Victims must also receive support throughout the process. If someone reports a hate crime, but are then largely ignored by the system and left in the dark about their case, it will discourage them from reporting in the future (and may discourage their community as well). There should be bespoke, independent support in place for victims which is in place from the time of reporting through to the prosecution of the offence. The impetus for tackling the high levels of underreporting must not lie only with victims, who cannot and should not shoulder the burden themselves. Systems should be in place to ensure that communities who are already victimised and disadvantaged are supported and empowered through the reporting process.

Finally, we emphasise that if communities do not believe that the police are treating hate crime as a priority (and do not believe individuals and communities who consider that the crime was motivated by malice and ill-will), they will not feel encouraged to report. Trust must be built between BME communities and the police in particular, and officers should link better with local communities long-term to put these critical relationships in place. Clarity is also needed to better understand where the role of the police stops and the role of prosecution begins, and how the decision is taken whether or not to take an aggravation or a standalone offence forward.

We believe this matter should be left to the discretion of the judge involved in the case, as in some circumstances, it may be prudent to disallow the press reporting the identity of the complainer. A blanket policy on this matter could lead to complications.

No, CRER does not believe the third party reporting scheme is valuable in encouraging the reporting of hate crime. While the intention behind the scheme was laudable, it simple does not work in practice.

We know that only slightly over 1% of hate crimes are reported to these centres, which calls into question whether they are providing value for money. Furthermore, this scheme is often put forward by policy makers as a solution when discussing the underreporting of hate crime, but the proportion of crimes reported to these centres indicates that it is not the solution to the wider problem. Investment – both in time spent developing policy and in funding allocated – could be more effectively distributed were third party reporting to be discontinued.

There is an additional concern with encouraging communities (largely BME communities) who already feel distanced from the police to report to a body which is not the police. This increases the gap between police and communities, and leaves some groups feeling as though the police simply do not have time for them. Rather than encourage BME individuals who are uncomfortable reporting directly to the police to use these centres, consideration should be given as to why individuals feel this way. Efforts should be made to repair damaged relationships and improve engagement and trust, rather than encouraging groups to report to third parties, which carries the underlying message that the police will not be responsive and understanding. Improving accessibility should be key.

We know that some centres do provide valuable information to victims of hate crime, who are then comfortable reporting directly to the police. This service could instead be allocated to a bespoke, independent victim support body who could provide victims with information on reporting hate crimes, and continue to provide support to victims through the process if needed. This offers a more cohesive and comprehensive service to victims, and removes some of the burden this need places on smaller community bodies.

Third party reporting is simply not working as intended. The scheme should be discontinued, and an independent support body should instead be created to provide the bespoke support victims may need to report directly to the police and follow their case through the criminal justice system.

CRER questions whether there is enough evidence in place that demonstrates that diversionary schemes in particular are effective. As part of a preventative approach to reducing hate crime levels, the criminal justice system must consider approaches which ask people to look at the attitudes and beliefs which fuel racist acts. These activities should encourage attitude changes, which is particularly pressing as most racist crimes in Scotland are committed by young white men. Simple diversion – such as getting individuals to play a game of football – are not enough and do not actually challenge or change attitudes. Robust evaluations – following the use of evidence-based approach to plan diversion activities – are needed from the beginning to ensure that the criminal justice system is aware of what is effective in anti-racist work, and are better able to determine what interventions are working.

There is also a lack of research on restorative justice in relation to racist hate crime. Bespoke research will be needed to better understand the impact of restorative justice on the victims of racist hate crime, and to determine if this approach changes the attitudes of perpetrators. Some studies have demonstrated that, where done well, this approach can be effective and empowering. However, we believe more work is needed before any sort of national approach is adopted.

Further consideration of both diversion and restorative justice is needed before either scheme is placed on statutory footing.


Finally, while CRER welcomes the work of this review and the potential change it will bring about, we stress that change in wider societal attitudes is key in properly tackling racist crime. Unless marked moves towards equality are brought about in areas such as employment, participation, and community cohesion, racist hate crime will continue, despite the best efforts of decision makers to develop fit-for-purpose legislation. We hope that forthcoming work will have cognisance of this and call on the review to make this clear.