Hate crime: mapping the boundaries

Scotland is looking to change its hate crime laws. The Hate Crime and Public Order (Scotland) Bill was submitted in Holyrood on 23 April. According to the Scottish Government, it “seeks to modernise, consolidate and extend existing hate crime law ensuring it is fit for the 21st century”.

Its proposed changes include:

• expanding the list of protected grounds in the hate crime law by adding bias based on age and variations in sex characteristics (and possibly also sex, depending on the outcome from a working group) to those currently protected: disability, race (and related characteristics), religion, sexual orientation and transgender identity;
• introducing a new offence of stirring up hatred against any of the protected groups covered by the bill (currently these offences apply only to stirring up racial hatred);
• consolidation, by pulling most current laws into one bill.

The last of these should be welcomed by both legal practitioners and victims, but there are important conceptual and practical implications of the bill.

We argue that, while the bill brings greater simplicity and more parity for the protected characteristics, there are possible implications for the effective application of the law, and for the concept of “hate crime” itself. There are also lessons for the law reform processes currently being undertaken in Northern Ireland and England & Wales.

Impact and statistics

There were 4,616 hate crime charges recorded in Scotland in 2018-19. More than half were race-related. There were 1,176 charges of sexual orientation hate crime, which has been steadily increasing year on year, 529 religiously aggravated charges, 289 charges with an aggravation of prejudice relating to disability, and 40 with an aggravation of transgender identity (compared to 52 in 2017-18). Under-reporting of hate crime is recognised as a key factor.

While relatively low in numbers when compared with volume crimes like robbery or shoplifting, hate crimes are a daily reality for many people belonging to at-risk groups. They are often associated with more serious psychological, social and community impacts compared with similar, but non-hate crimes (Iganski and Lagou, “Hate Crimes Hurt Some More Than Others”, 30 Journal of Interpersonal Violence 1696 (2015)).

In his independent review of hate crime laws in Scotland, Lord Bracadale outlined three key reasons why the state is justified in legislating to prevent hate crime. These are summarised as:

• “recognition of the additional harm which hate crime offending causes to the victim, others who share the protected characteristic and wider society;
• the important symbolic message which the law can send;
• the practical benefits which arise from having a clear set of rules and procedures within the criminal justice system to deal with hate crime”.

The proposed new measures are meant to offer greater protection for people who experience hate crime. According to Justice Secretary Humza Yousaf: “By creating robust laws for the justice system, Parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated.”

Protected grounds

Even without the proposed reforms, Scots law is already among the most advanced in the world. By providing for higher penalties for offences aggravated by prejudice based on disability, race (and related characteristics), religion, sexual orientation and transgender identity (including intersex), the existing legislation covers most groups known to experience hate violence. Adding new protected grounds places Scotland among the handful of jurisdictions in Europe and North America that recognise “age” and “variations in sex characteristics” as protected grounds in hate crime law. For example, 13 USA states recognise bias based by age in their hate crime statutes, while Greece and Malta have legislated to include sex characteristics.

The bill also improves the parity of protected grounds through new “stirring up of hatred” offences, addressing the hierarchy of victimisation criticised by Lord Bracadale (more on this below). As we will explain, some of these amendments will help to clarify existing laws. However, we argue that other changes lack sufficient evidential grounding and risk further complicating the legal framework.

We welcome the bill’s removal of the awkward understanding of intersex as a type of transgender identity. The recognition of variations in sex characteristics on a par with other protected grounds helps to normalise the intersex identity, and removes legal uncertainty and possible confusion among judges. Separation will allow for the correct recording of the scale and types of transphobic and interphobic crime, enabling better understanding and evidence-based policymaking.

The move to include age as a new protected characteristic is a more controversial one, especially as there remains scant evidence that there are prejudice-motivated crimes based on age that are likely to cause additional harms to victims or others who share their characteristic, as set out by Bracadale.

The Scottish Government noted that: “Although there might only be a relatively small proportion of crimes relating to malice and ill will towards a person because of their age”, it “wants to ensure that these crimes are treated in the same way as other hate crimes through the use of the statutory aggravation model”.

Yet, while the Government has moved to include age, somewhat surprisingly it has excluded “gender” or “sex” from the list of characteristics. Such a move ignores Bracadale’s recommendation that gender hostility should be included under the legislation, considering the significant body of evidence that women experience various forms of violence based on hostility towards their gender. The Government has taken account of opposition from women’s rights organisations who argued instead for a standalone offence of “misogynistic harassment”. Bracadale dismissed this proposal, stating that a “new standalone offence would... have a considerable cross-over with other existing offences, which risks causing confusion and undermining the aim of collecting reliable data”. The bill does provide for a window to allow the characteristic of “sex” to be added at a later stage; but notwithstanding the implications of misogynistic or gender-hostile crimes being labelled as ill will towards someone’s “sex”, there is the additional concern here that decisions about adding characteristics are not being based on any consistent criteria.

Failure to outline clear criteria for inclusion of characteristics in hate crime law could lead to the concept of hate crime becoming too nebulous and, in turn, its potency as a legal category being diminished. The legislature should instead set out general criteria for inclusion of characteristics. Then, using these criteria it can assess whether a characteristic requires legislative protection based on information and evidence provided by statutory agencies and, importantly, civil society groups, community practitioners, and researchers. The Law Commission in England & Wales is currently working to develop a set of criteria for victim group inclusion.

The legal model

Scots law does away with the dual system of legislation that England & Wales employ, simplifying the way in which all hate crimes can be prosecuted and recorded. It is also different to Northern Ireland in that its current legislation (and the new consolidating bill) requires that it is “libelled in an indictment, or specified in a complaint, that an offence is aggravated by prejudice”. As well as being stated in open court, the aggravation, if proved, is recorded on conviction in a way that shows the offence is aggravated by prejudice.

This is unlike England & Wales, and Northern Ireland, where offences motivated by (or which demonstrate) sexual orientation, disability or (E&W only) transgender hostility, will not be labelled as prejudice-based at trial and will not be officially recorded by the courts as a prejudice-based offence. Both the review in Northern Ireland and the Law Commission review in England & Wales should carefully consider the value of prosecuting and labelling any offence as an “aggravated” crime (where there is evidence of hostility), in the way that Scots law does (referred to as the “hybrid” approach by Goodall and Walters, Legislating to Address Hate Crimes against the LGBT Community in the Commonwealth, Equality & Justice Alliance (2019)). Previous research (Hate Crime and the Legal Process, University of Sussex, 2017) has shown that evidence of “hostility” is often filtered out of the criminal process where it does not make up part of the substantive offence being prosecuted. The dual system of substantive offences and sentencing provision found in England & Wales can also lead to confusion amongst legal practitioners, with fewer professionals being aware that the sentencing laws exist.

Despite the Scottish bill providing for much needed simplicity in the law, it has conversely chosen to maintain the somewhat archaic criminal law language of “ill will and malice”, clearly dismissing Bracadale’s assertion that “to a layperson a phrase such as ‘demonstrating hostility’ is more easily understood than ‘evincing malice and ill will’”. In some respects this may be a good move. The University of Sussex study found considerable problems with the application of “hostility” based offences in England & Wales, leading to many disablist offences falling outside the scope of the legislation. However, the legal test of proving “ill will or malice” may prove equally inhibitive in successfully pursuing any age-based hate crimes.

Bracadale notes that most cases of victimisation of older people involve the targeting of victims based on their perceived vulnerability. Cases involving actual hatred or hostility will be few. Yet, as we have seen in relation to disability hate crime cases, it will be very difficult to distinguish between cases involving intentional “ill will or malice” towards a victim’s characteristic and those which involve targeting based on their perception of vulnerability, which may or may not be linked to prejudiced attitudes. Cases that involve a perceived vulnerability are likely to fall outside of both lay and professional interpretations of “ill will and malice”, therefore hate crime laws are unlikely to be successfully applied.

If the law remains on the statute books without being applied in practice, it risks exacerbating the sense amongst concerned groups that the authorities are not sufficiently protecting them from targeted abuse. The University of Sussex study recommendation to consider modifying the legal test to include a discriminatory model, or even combined model, whereby a hate crime can be proved where it is committed “by reason” of someone’s characteristics was rejected, as Bracadale had concerns that this would be too broad. We argue however that this is a missed opportunity to ensure that all types of hate crime, especially age and disability aggravated crimes, can be effectively proved in court.

“Stirring up hatred” offences

The “stirring up” offences, too, have been criticised for being hierarchical, both in terms of what characteristics are covered and the legal tests used to prove different types of hatred.

Currently, only stirring up of racial hatred can be prosecuted as a specific offence in Scotland (religious hatred having been repealed under the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Act 2018). While a greater level of parity is created here by including seven characteristics as potential forms of hatred, the legal test for proving racial hatred will be different to the other six. It will be possible to commit the stirring up of racial hatred by communicating insulting, as well as threatening and abusive material, while all other types of hatred can only be committed by threatening and abusive material.

Bracadale had argued that the word “insulting” should be deleted from the racial hatred provisions, ensuring that all types of stirring up of hatred offences used the same wording. However, the bill maintains this wording. We remain unconvinced that there is sufficient evidence that Parliament should treat racial hatred using a different standard to other forms of hatred that are likely to be stirred up in society. After all, the same freedom of expression provisions apply to all forms of speech, and the defence that the use of language was reasonable in the circumstances will equally apply.

While critics of the bill have expressed concerns that the new law would criminalise people who objected to Government policies such as the reform of the Gender Recognition Act, we see very little reason to believe this would occur in reality. Similar concerns were raised in England & Wales when religious and sexual orientation hatred were added to the law in 2006 and 2008 respectively. Yet few cases have ever been successfully prosecuted, due primarily to the law’s emphasis on freedom of expression. Considering the careful phrasing of the proposed law (including the requirement of threatening and abusive language), and the fact that such provisions used across Europe have been found to be lawful under human rights treaties (European Court of Human Rights, Factsheet – Hate speech (March 2020)), we share the Government’s view that the bill “strikes the right balance, protecting those who fall victim to crime because of the prejudice of others while also protecting the freedom of thought and expression of all citizens”.

Summary: unclear boundaries

Policymakers in Northern Ireland, and England & Wales, will no doubt be paying close attention to the approach taken in Scotland. The reformed law may also be relevant for Ireland, where the Department of Justice & Equality is currently reviewing the outdated Incitement to Hatred Act 1989. The Scottish bill provides for a much needed consolidation that offers greater parity in protection for victims of hate crime. While this simplicity should help to improve the effective application of hate crime legislation, it remains unclear which characteristics should be included in hate crime law. Without carefully defined criteria for inclusion, “hate crime” as a category of law risks becoming too nebulous.

Beyond the who, is the how. While the Scottish bill strikes the right balance between protecting victims and protecting the freedom of thought and expression, it has missed opportunities to modify a legal test that includes archaic language, and which we believe is not fit for purpose for all types of hate crime.