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WORKING GROUP ON HATE CRIME REPORT
Footnotes
1 Mr Carmichael attended in an advisory capacity.
2 Section 74 of the Act states that an offence is aggravated by religious prejudice if immediately before, during or after the offence, the offender evinces malice and ill-will based on the victim's membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation. Equally, an offence is aggravated by religious prejudice if the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group. When this occurs, the court must take the aggravation into account when determining the appropriate sentence and if the sentence is different from that the court would have imposed if the offence had not been aggravated by religious prejudice, the court must state the extent of and reasons for that difference.
3 Hereafter the Working Group will be referred to as "we".
4 Lesbian, Gay, Bisexual and Transgender
5 See:
* "The Experience of Violence and Harassment of Gay Men in the City of Edinburgh" (Scotland Office Central Research Unit, 1998)
* "First Out...Findings of the Beyond Barriers survey of lesbian, gay, bisexual and transgender people in Scotland" (Beyond Barriers, 2003)
* "Queer Bashing" (Stonewall, 1996)
* "Give us a break": exploring harassment of people with mental health problems (National Schizophrenic Fellowship Scotland research, 2001)
* "Scottish Disability Awareness Survey" (Disability Rights Commission, 2002)
* "Living in Fear" (Mencap, 1999)
6 See:
* "The Hate Debate: Should Hate be punished as a Crime" (edited by Paul Iganski, 2002)
* "Racist Crime and Victimisation" (Ian Clark and Sue Moody, 2002)
* "The Association of Chief Police Officers (ACPO) Guide to Identifying and Combating Hate Crime" (Hate Crime Manual) by ACPO (2000)
* "Consequences for Victims - a comparison of bias- and non-bias motivated assaults" (J McDevitt, J Balboni, L Garcia and J Gu, 2001)
7 See:
* "The Hate Debate: Should Hate be punished as a Crime" (edited by Paul Iganski, 2002)
* "Dealing with Racist Victimisation: Racially Aggravated Offences in Scotland" (Sue Moody and Ian Clark, 2004)
8 See:
* "The Hate Debate: Should Hate be punished as a Crime" (edited by Paul Iganski, 2002)
9 Copies of the publicly available responses are available in full in the Scottish Executive library at K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD. Copies of responses can be viewed by visiting the library or can also be provided by post. Charges for photocopies are made on a cost-recovery basis and are required in advance. To make an appointment to view responses at the library or request copies by post and enquire about charges, contact the Library on 0131 244 4552.
10 Respondents were given the following examples as possible hate crime legislative options:
* The Public Order Act 1986 made it a criminal offence throughout Britain to incite racial hatred. 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.
* Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995, introduced by the Crime and Disorder Act 1998 created a specific statutory offence of racially-aggravated harassment. 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.
* 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 race or religious hatred, then the offence can attract a more severe penalty.
11 The social groups mentioned in the paper were the LGBT community, disabled people, groups defined by age and gender, refugees and asylum seekers, the homeless community, prostitutes and members of certain political groups or holding certain political opinions.
12 Sentencing is, of course, entirely a matter for the court. It is not the role of the Procurator Fiscal to suggest a sentence although they can draw the court's attention to any mandatory sentence. Where the accused pleads guilty the Procurator Fiscal will ensure that all facts relevant to sentence are before the court. In cases which have gone to trial there may be evidence relevant to sentence which was not elicited during the course of the trial. Such evidence would be drawn to the attention of the court prior to sentencing.
13 VIA - Victim Information and Advice - is an information service for victims of particular crimes and is part of the COPFS (see above). One of the stated categories of person to whom the VIA treatment will be offered is anybody who falls with in the category of "vulnerable".
14 The Victim Statement Scheme is at present only a pilot scheme. The pilot scheme operates with victims statements being offered to people depending on the type of offence involved rather than the type of victim.
15 The results of this question should be interpreted carefully. The question was not broken down into whether the respondents were targeted because the perpetrators had malice or ill-will towards people's learning disabilities or whether the perpetrator took advantage of them because they were vulnerable.
16 See:
* "Give us a break": exploring harassment of people with mental health problems" (National Schizophrenia Fellowship Scotland, 2001)
* "Hate Crime Against Disabled People in Scotland: A Survey Report" (Disability Rights Commission and Capability Scotland, 2004)
* "The Experience of Violence and Harassment of Gay Men in the City of Edinburgh" (Colin Morrison and Andrew Mackay, the TASC Agency, 1999)
* "Queer bashing" (Stonewall, 1996)
* "First Out...Findings of the Beyond Barriers survey of lesbian, gay, bisexual and transgender people in Scotland" (Beyond Barriers, 2003)
17 See:
* "First Out...Findings of the Beyond Barriers survey of lesbian, gay, bisexual and transgender people in Scotland" (Beyond Barriers, 2003)
* "An Acceptable Prejudice? Homophobic Violence and Harassment in Northern Ireland" (Institute for Conflict Research, 2003)
18 "Report of Cross-Party Working Group on Religious Hatred" (Scottish Executive, 2002)
19 The definition of breach of the peace is very broad and varies from case to case. In general, however, it can be described as conduct by a person, which is calculated to, or may be likely to, cause disturbance, alarm, annoyance or upset on the part of others.
20 The distinction between the two being that harassment is a course of conduct, while alarming/distressing behaviour is a one-off event.
21 See "Stalking and Harassment in Scotland" (Sue Morris, Simon Anderson and Lorraine Murray, 2002)
22 The Home Secretary, David Blunkett, has recently announced his intention to introduce legislative provision for an incitement to religious hatred offence.
23 We suggest that the legislation should define disability as physical or mental disability or impairment.
"Sexual orientation" appears in several existing statutes, including the Vulnerable Witnesses (Scotland) Act 2004, and we do not think it needs further definition. If a definition were required, there is a satisfactory one in regulation 2(1) of the Employment Equality (Sexual Orientation) Regulations 2003.
"Transgender identity" means those characteristics of a person's identity, appearance or behaviour which are usually associated with the gender opposite to the person's legal gender, and includes, if it is the case, that the person's legal gender has become the acquired gender under the Gender Recognition Act 2004.
24 See: "First Out...Findings of the Beyond Barriers survey of lesbian, gay, bisexual and transgender people in Scotland" (Beyond Barriers, 2003)
25 The Scottish Crime Survey 2000 shows that men are more likely to be the victim of a violent crime than women (5% of male respondents had been victims compared with 2% of female respondents). However, in most incidents (85%) the assailant or assailants were male. This implies that gender is less likely to be the motive behind crimes committed against men.
26 Women predominantly report experiencing violence in a domestic setting (64%) or by an acquaintance (22%): Domestic Violence - Findings from the 2000 Scottish Crime Survey, Scottish Executive, CRU, 2002. The Scottish Crime Survey 2000 reports that only 10% of violent crimes against women are committed by strangers.
27 In cases where the gender of victim and perpetrator was recorded, the victim was female in 90% and the perpetrator male in 91% of incidents of domestic abuse: Domestic Abuse recorded by the Police in Scotland 2002, Scottish Executive November 2003.
28 California is one of the US states that legislates against gender-based hate crimes. Records of hate crime in California in 2001 showed that 0.7% (15) of hate crime events were motivated by the gender of the victim.
29 See "Hate Crimes: Criminal Law and Identity Politics" (James B. Jacobs and Kimberly Potter, 1998)
30 In June 1998 a Code of Practice was issued by the Scottish Office, intended to promote the development of "appropriate adult" schemes. An appropriate adult is an independent person who is present during a police interview to support and assist a mentally disordered person during the interview (and in some cases afterwards). They are not intended to represent the person in the way that a defence lawyer would do, but to help to make sure that, so far as possible, the person understands the questions the police may ask, and is able to respond. For more information, see: http://www.scotland.gov.uk/library/documents5/aas-01.htm
31 There is no precedent of this being done in criminal cases (and there may be difficulties involved in implementing a location restriction through the criminal court) but location restrictions are currently applied through civil proceedings, often related to anti-social behaviour orders
32 This list only includes the names of the individuals or organisations who were willing for their names to be made public and excludes those who wished to remain anonymous.
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