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WORKING GROUP ON HATE CRIME REPORT

5. LEGISLATION

Reasons for legislating

5.1 While evidence suggests that some social groups are proportionately more often victims of harassment and crime, there is evidence that these groups are less likely to report the crime committed against them. ¹⁶ This is partly because hate crimes can be intensely distressing for their victims and historical experience or fear has led many to believe that there is no point in reporting them. ¹⁷ Respondents to the consultation paper felt that legislation is an important mechanism for highlighting the issue of hate crimes both to the victims and to the criminal justice bodies, to encourage reporting and focus minds on this issue.

5.2 It is of course the case that hate crimes are already covered under Scots law. In one sense, no matter what the motivation is, sentencers can already take any aggravating factor, including a motive of malice and ill-will towards a social group, into account when determining the sentence under common law. However, it is impossible to monitor the extent to which this is currently happening, as common law aggravations are not recorded either in terms of statistics or on the offender's criminal record. We consider that the introduction of new legislation on hate crime would not prevent sentencers from continuing to take into account other aggravating factors, such as vulnerability, under the common law. Whilst not the primary objective, we also felt that the creation of clear new legislation would have an impact on the negative social attitudes and prejudices that are often at the heart of hate-motivated crime.

5.3 We believe it is vital that the recording and monitoring of hate crimes is improved. We heard evidence that the best way to remedy the situation whereby data on hate crimes is not recorded, would be to introduce legislation. Improved recording and monitoring mechanisms would allow trends to be monitored in different areas of Scotland, allowing targeted programmes to combat this type of behaviour to be set up. It would also allow the court to identify previous offenders (repeat offending is a common feature of hate crime) and to sentence more appropriately.

5.4 It is important to send out a strong signal through legislation that the type of behaviour exhibited through hate crime is unacceptable. The ultimate solution to hate crime is to address the attitudes in society that lead to it. We believe that the existence of legislation that recognises the damage caused by hate crime, to the victim and to society as a whole, combined with other measures to reduce prejudice and discrimination (see Chapter 7), are the way forward.

Arguments against legislation

5.5 As noted above, the majority of respondents to the consultation favoured introducing legislation. We considered carefully the arguments made by those who opposed the introduction of legislation. Responses for and against legislation can be divided by the type of respondent as follows:

5.6 The relatively small sample sizes involved in these responses means that it is important not to read too much into the figures. However, in general, the organisations more opposed to legislation appear to be the organisations involved in the administration of criminal justice and religious organisations. Only three age organisations responded to the consultation but two of the three were against legislation.

5.7 Some of the criminal justice organisations which were opposed to legislation focused on two arguments: the fact that the existing common law was adequate and preferable to legislation, and, related to this, that there would be practical problems involved in any new legislation. These organisations felt that the common law was able to deal with hate crimes appropriately because of its flexibility. In terms of any new legislation, there were concerns regarding the ability to distinguish between prejudice and vulnerability, a "hierarchy" of victims being created and problems in defining social groups. However, these views were not consistently held amongst organisations representing the same parts of the criminal justice system. Extracts from the responses from the Scottish Police Federation and Association of Chief Police Officers Scotland (ACPOS) are set out for comparison below:

"From an operational point of view, there is a strong feeling from our members that it will be more difficult to present a case to the court based on any statutory provisions rather than a common law charge where the facts speak for themselves and the court can take account of any motivation for the crime which becomes apparent in the presentation of the evidence."
(Scottish Police Federation; Reference number 088)

"Although existing statutory legislation and Scottish Common Law may address the issue of hate crime, new legislation may provide a more effective means of identifying, recording and monitoring such crimes as well as reassuring communities."
(ACPOS; Reference number 162)

5.8 Two of the three age organisations which responded to the consultation and were not in favour of legislation gave their reasons as being that they felt the existing law was adequate, that new legislation would be discriminatory, it would make the system more complicated and there would be difficulty in getting sufficient evidence to back up the complaint.

5.9 We do not find the argument that the law is working adequately at present convincing. Amongst the community groups which responded from the LGBT and disability communities there were none who reported the satisfactory use of the common law to deal with hate-aggravated crimes against their communities. Although under-reporting of hate crime may be caused by a number of factors, we feel that the research relating to under-reporting (see paragraph 5.1) reflects that the law is not working adequately. In addition, even if the law was working adequately, we are currently unable to assess it objectively because of the lack of recording and monitoring mechanisms. We also note that the same argument was made at the time of introduction of the legislation relating to hate crime aggravated by racial prejudice, and that both research and anecdotal evidence suggest that the legislation has improved the handling of these offences.

5.10 We acknowledge that some crimes against members of disadvantaged groups is opportunistic crime, motivated by perceived vulnerability rather than by malice and ill-will. However, we feel that a similar issue arises when police and prosecutors are confronted with an alleged racist crime and they have to consider whether there is sufficient proof that, for example, an attack on a black person was motivated by racism or whether it was motivated by some other reason (see paragraph 3.5). We believe that the form of existing legislation on crime aggravated by racial or religious prejudice, which requires proof of motivation of malice and ill-will related to prejudice, sufficiently distinguishes hate crime from other kinds of crime.

5.11 Nor do we agree with the argument that hate crime legislation creates a "hierarchy" of victims. There is clear evidence that certain groups are disproportionately targeted for crime motivated
by malice and ill-will (see paragraph 3.2). It is that disproportionate targeting which creates a "hierarchy". We are therefore comfortable with the concept of legislation which addresses specified types of hate crime so long as the scope of the legislation is clearly evidence based. In a society which aspires to equal opportunities and freedoms for all, it is necessary to make provision to combat specific forms of discrimination and prejudice. With regard to the practicalities of drafting legislation to cover effectively the kinds of hate crime we identify, we note that the existing legislation on offences aggravated by racial or religious prejudice does not appear to have encountered significant difficulties in this regard.

5.12 For the religious organisations which were not in favour of legislation, the main concern was the threat to freedom of speech and their ability to express their particular religious perspective on homosexuality.

"It is important to stress that Christians completely oppose criminal acts against anyone regardless of "sexual orientation". Nevertheless, we are concerned an aggravated offence will be used to threaten and intimidate those who hold traditional views on sexuality."
(The Christian Institute; Reference number 104)

5.13 We feel that the different types of legislation would have different levels of impact on freedom of speech. This is discussed in more detail below.

Type of Legislation

5.14 The group considered three types of legislation which would have an impact on offences and sentencing: a statutory aggravation, a statutory hate crime offence and an incitement to hatred offence.

Statutory aggravation

5.15 There are existing provisions on racial (Section 96 of the Crime and Disorder Act 1998) and religious hatred aggravation (Section 74 of the Criminal Justice (Scotland) Act 2003). If any criminal offence is motivated by, or accompanied by an expression of, malice and ill-will on the grounds of racial or religious hatred, then that factor must be taken into account by the judge when sentence is being considered. In 2003-04, there were 196 convictions in Scotland for racially aggravated offences under Section 96. Between its introduction in June 2003 and June 2004 there have been 140 convictions involving religiously aggravated offences under Section 74.

5.16 We noted that extending the statutory aggravation legislation beyond race and religion to cover other types of hate crime was supported by the majority of respondents to the consultation. In addition, five of the 21 respondents who did not support new legislation nevertheless said that if any were introduced, it should be a statutory aggravation. As noted above, similar statutory aggravation legislation in England, Wales and Northern Ireland has this year been extended to cover sexual orientation and disability. Extending the statutory aggravation would have the benefits noted in paragraphs 5.1 to 5.4 above, while not detracting from the existing flexibility of the common law to deal with other kinds of aggravating factor. Extending the legislation on the same terms as the existing statutory aggravations which deal with racial or religious hate crime would retain maximum consistency in the handling of identified hate crime. We do not consider that a statutory aggravation would impact on freedom of speech - it does not criminalise any behaviour that is not already criminal.

Statutory hate crime offence

5.17 The Crime and Disorder Act 1998 created a specific statutory offence of racially-aggravated harassment, by inserting a new section 50A into the Criminal Law (Consolidation) (Scotland) Act 1995. Under section 50A, it is a criminal offence to pursue a racially aggravated course of conduct which amounts to harassment of a person, or to act in a racially aggravated manner which causes, or is intended to cause, a person alarm or distress. In 2003-04 there were 848 convictions in Scotland for racially-aggravated harassment.

5.18 We noted that the Cross-Party Working Group on Religious Hatred ¹⁸ did not recommend extending the offence of racially-aggravated harassment to cover harassment motivated by religious prejudice. Nevertheless the number of convictions for s. 50A racially-aggravated harassment offences (see above) would suggest that this legislation is useful in dealing with racist crime.

5.19 A concern that has been raised about this legislation is that to obtain a conviction it is necessary to prove both the harassment (or alarming or distressing behaviour) and the racist motive. In contrast, if a person is charged with an offence racially-aggravated under the general statutory aggravation law described in paragraphs 5.15 and 5.16 above, and the racist motive is not proven, the accused can still be convicted of the non-aggravated offence. Despite this concern, however, the high conviction rate for proceedings for s. 50A racially-aggravated harassment offences suggests that in practice the need to prove both elements of the offence has not caused major difficulties in obtaining convictions.

5.20 We also noted that there are more charges each year for s. 50A racially-aggravated harassment than for other offences combined with a statutory racial aggravation. Moreover, research into hate crime indicates that "lower-level" behaviour such as hate-based abuse and harassment are more common than serious assaults. This suggests that there is a real need to address this kind of behaviour for other groups in addition to racial groups.

5.21 Some consultation responses indicated concern at the introduction of offences which are only criminal when motivated by hate, and suggested that harassment should be an offence regardless of motivation, although an offence that, like any other, could be aggravated by a statutory hate motivation. We also heard evidence that any offence currently prosecuted as racially-aggravated harassment could almost certainly be alternatively charged as a breach of the peace. ¹⁹ This suggests that a stand-alone offence of hate-aggravated harassment would not be needed if breach of the peace were applied rigorously to such offences and combined with a statutory hate aggravation.

5.22 However we were also concerned about the need to send a clear message, to victims, to perpetrators, to the criminal justice agencies and to the public generally, that this kind of offence is not acceptable and will be addressed. We felt that if breach of the peace were relied upon, together with a new statutory aggravation, to deal with these "lower-level" hate crimes, then there would need to be clear guidance from the Lord Advocate to the police to ensure that the law was applied consistently and rigorously. We were shown a card, carried by police officers, describing the scope and application of the s. 50A racially-aggravated harassment offence and would want to see such accessible information for police officers extended to cover the use of hate-aggravated breach of the peace charges for harassment and alarming or distressing behaviour.

5.23 Some members of the Working Group felt that the way forward should be to create a new general statutory offence of harassment or alarming or distressing behaviour. ²⁰ This offence could then be used along with a statutory hate aggravation to address behaviour which for the racially-aggravated case is covered by the s. 50A racially-aggravated harassment offence. With the introduction of a new offence, a strong message would be sent about the seriousness with which such behaviour is viewed. Other members of the Working Group considered that such a statutory offence would be unnecessary, as it would in effect be a statutory version of the existing crime of breach of the peace.

5.24 Currently under Scots law (unlike English law), there is no specific criminal offence of harassment. However, the Protection from Harassment Act 1997 contains provision for a non-harassment order to prevent further harassment from taking place through civil proceedings. A breach of the order is a criminal offence, punishable by up to 5 years' imprisonment.

5.25 The Scottish Executive issued a consultation paper in March 2000 to examine the law as it relates to stalking and harassment. The consultation ended in June 2000 and the way forward was announced to Parliament in January 2001. The consultation exercise did not produce a single, agreed set of recommendations or solutions, but key issues arose from it including the need for new research. The Scottish Executive commissioned extensive research on stalking and harassment, the results of which suggested that there was no need for a new offence. ²¹ However, we noted that the main focus of this study was on stalking rather than the kind of harassment experienced as hate crime.

5.26 In conclusion we are concerned at the number of victims of hate crime who suffer from hate-aggravated harassment or alarming or distressing conduct. We would therefore like to see further consideration given to the introduction of a general statutory offence covering these kinds of behaviour, which could be applied with a statutory hate aggravation to address these hate crimes. Alternatively, and as a minimum, we recommend the robust application of breach of the peace, together with a statutory hate aggravation, to address this problem. Guidance will be needed to the police to ensure consistent and rigorous application of the law.

5.27 In addition, Local Authorities should be encouraged to use Antisocial Behaviour Orders (ASBOs) to address hate-aggravated harassment which falls short of a criminal act.

Incitement to hatred

5.28 The Public Order Act 1986 made it a criminal offence throughout Britain to incite racial hatred. ²² The offence covers the use in public of words or behaviour, the display, publication or distribution of written material, the public performance of plays, and the public distribution, showing, playing or broadcast of video or audio recordings, if the material concerned is intended to, or is likely to, stir up racial hatred. It is also illegal to possess such material with a view to making it public. In 2003-04 there was one conviction in Scotland for the office of incitement to racial hatred.

5.29 We feel that the incitement to hatred offence risks penalising freedom of speech too much for it to be extended beyond racial hatred. We recognised the concerns of some religious organisations who felt they should legitimately be able to express their own views on homosexuality, without being convicted of an offence. We therefore do not recommend the extension of an incitement to hatred offence.

Types of Prejudice covered

5.30 In considering which types of prejudice should be covered by legislation, there is clear evidence that the LGBT community and disabled people are targeted as victims of hate crimes (see paragraph 3.2). As we have noted earlier, a hate crime is characterised by the motive of the perpetrator in relation to the identity or presumed identity of the victim. We consider that in keeping with the formulation in the existing legislation, which appears to work well, new legislation should cover offences aggravated by malice and ill-will against a person's membership or presumed membership of a group defined by reference to their sexual orientation, transgender identity, or disability. ²³ Like the existing legislation, membership of a group should be defined as including association with members of that group. The inclusion of both sexual orientation and transgender identity is required because evidence shows that transgender people are victims of hate crime as much as lesbian, gay and bisexual people and that the underlying prejudices are closely linked. ²⁴ The ACPOS definition of "homophobic incident" includes incidents targeting transgender as well as LGB people but the current legal definition of sexual orientation would exclude such incidents.

5.31 Like the existing statutory aggravation provisions, the legislation should cover offences motivated by malice and ill-will against a group regardless of whether the victim was in fact a member of that group; for example it would cover a homophobic attack on a heterosexual person wrongly assumed to be gay.

5.32 Age and gender are more complicated areas. While the most obvious example of a person's age affecting their susceptibility to crime is someone who is older, more vulnerable and less physically capable of defending themselves, the Scottish Crime Survey 2000 reported that men between the ages of 16 and 24 years old were the age group most likely to be the victim of violent crime. The fact that most of this crime is perpetrated by other young people (for the most part, men) suggests that behaviour and lifestyle, rather than prejudice against people because of their age per se, contributes to the high levels of crime against younger people.

5.33 Two of the three age organisations which responded to the consultation were opposed to legislation covering age. For our part, we feel that there needs to be more consideration of the extent of crime motivated by malice and ill-will against people of particular ages because of their age, in consultation with organisations working in the age field, before extending hate crime legislation to cover age.

5.34 In respect of gender, it is clear that there are a number of different facets to gender-based crimes. The issue of crimes against women was of particular concern to the Group, because of the number of organisations who responded to the consultation on this issue and based on evidence of the gender-divide in criminal offences. ²⁵ As a Group, we recognise that abuse of women by men is a major problem and is related to wider gender inequality. Several submissions to our consultation from women's organisations argued that when women are abused because they are women, then that implies gender-based malice and ill-will on the part of the abuser.

5.35 A question was raised as to whether domestic abuse should be considered in respect of legislation around hate crimes. The statistics show that most violence against women is committed by men they live with or know. ²⁶ A representative from the Scottish Executive's Violence Against Women Unit gave evidence to the Group on domestic abuse. The Unit's view is that domestic violence is abuse of power within a relationship, whereby (mainly) the man seeks to exert his power over his female partner ²⁷ but does not generally abuse other women. Therefore, the Unit does not view domestic violence as a hate crime. A number of the Group disagreed with this view, as did those respondents working in this field. They saw domestic violence as part of a spectrum of gender-based violence committed against women, and thus a gender hate crime because the woman is targeted because of her gender. At the same time, we noted that hate crime against other groups has a certain random nature to it, that individuals are targeted because of their real or perceived membership of a particular social group, rather than because of any prior relationship between perpetrator and victim.

5.36 Among the consultation submissions, Scottish Women's Aid proposed that consideration should be given to the introduction of a specific statutory aggravation of domestic abuse. In other words, where an offence is committed in the context of domestic life or a domestic relationship that should be treated as an aggravation. We feel that this suggestion is worthy of further consideration by the Scottish Executive.

5.37 More generally, we recognise that violence against women is related to the attitudes and behaviours in our society which undermine women's position and their equality to men, ranging from the media's sexualisation of girls and young women through to pornography, prostitution and the trafficking of people. Nevertheless, despite lengthy consideration, the Group did not reach agreement that a statutory aggravation on grounds of gender could be used effectively to tackle these complex, inter-related and diverse issues. In particular it was felt that there would be practical difficulties in gathering evidence in individual cases of malice and ill-will on gender grounds.

5.38 Nevertheless we believe that the position should be kept under review. We noted the growing trend in US hate crime legislation to include gender, while also observing that gender hate crimes in California only constitute a small minority of hate crimes committed, ²⁸ and that some US academics remain unconvinced that hate crime legislation in general is necessary. ²⁹ More generally we would encourage the Scottish Executive to undertake further work in this area
to tackle the undermining of women in our society and to investigate how this is related to violence against women.

5.39 We also looked at other groups who may be the victim of hate crimes, including refugees and asylum seekers, the homeless community, gypsy/travellers and prostitutes. We were particularly concerned by reports of attacks on refugees and asylum seekers because of the stigma associated with their status. In terms of legislation, if an attack refers to the victim's race then the offence is covered by existing race legislation. However, that legislation does not currently refer specifically to refugees and asylum seekers.

5.40 We are concerned that the various other groups mentioned may also suffer from hate crime but we did not feel sufficiently knowledgeable to make any firm recommendation relating to such groups. We do, however, recommend that legislation should be framed in such a way so as to allow any other group to be added to the legislation by statutory instrument if sufficient evidence emerges to show they are victims of hate crime.

Recommendation 1: The Scottish Executive should introduce a statutory aggravation as soon as possible for crimes motivated by malice or ill-will towards an individual based on their sexual orientation, transgender identity or disability. The legislation should be framed in such a way as to allow this protection to be extended to other groups by statutory instrument over time if appropriate evidence emerges that such other groups are subject to a significant level of hate crime. The legislation should ensure the recording of hate-motivated incidents (by the police), and reports and decisions of proceedings (by COPFS) and convictions (by Scottish Criminal Records Office).

Recommendation 2: Hate-aggravated harassment and alarming and distressing behaviour is a major concern. Consideration should be given to whether a general statutory offence of harassment and alarming or distressing behaviour would be an effective tool to combat such conduct. This would then be applied with a statutory aggravation as described in recommendation 1. If such an offence is not introduced, guidance should be issued to police and prosecutors to ensure the rigorous application of breach of the peace, together with the statutory aggravation, to such offences.

Recommendation 3: The Scottish Executive should review the area of criminal law on violence against women and continue to investigate the link between the undermining of women in society and crimes of violence against women with a view to combating both. A statutory aggravation for domestic abuse should also be considered by the Executive.

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