Bracadale review calls for single hate crime law

Hate crime in Scotland should be covered by a single legal code, with age and gender being added to the current list of protected characteristics, according to the report by the independent review of the subject published today.

The review, by Lord Bracadale, a retired judge of the Court of Session, was tasked by the Scottish Government with considering whether current laws are appropriate and consistent; whether the legislation needs to be simplified and rationalised; and whether new categories of hate crime need to be created.

Lord Bracadale's report contains 22 recommendations which he hopes will result in a scheme that is clear, consistent and easily understood. They include:

• retaining the current thresholds that the aggravation should apply where the offender demonstrates hostility towards the victim based on the protected characteristic, or the offence is motivated wholly or partly by such hostility;
• exploitation of perceived vulnerabilities (such as age) should not be treated as hate crime, but ministers should consider a separate general aggravation covering exploitation and vulnerability;
• the introduction of aggravations where offending involves hostility on the grounds of gender and age, in addition to the current characteristics of race, religion, disability, sexual orientation and transgender identity; and
• the creation of a wider suite of offences to deal with threatening or abusive conduct which stirs up hatred in respect of each of these characteristics – which would be sufficient to cover online hate crime and hate speech; and
• the consolidation of all hate crime legislation in a single Act.

Having examined for himself the case law in the light of Holyrood's decision to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, Lord Bracadale also concludes that no statutory replacement for s 1 of that Act is needed.

At a press conference to introduce his report, Lord Bracadale said he saw his review "not just as a legal exercise, but also as an opportunity to find out what was happening in the community. So at every stage I spent a lot of time listening to a wide range of people, including those in the criminal justice system, representatives of various community-focused organisations, and concerned individuals". The report had been informed by what he had learned.

The current scheme, he added, worked well but could be improved and extended. He emphasised that there frequired to be a "baseline" criminal offence, such as assault, before the aggravation could apply, and the report proposes a specific protection of freedom of expression in any new legislation relating to stirring up offences, as well as coming down against any new statutory aggravation covering hostility towards any political entity. However in answer to questions he recognised the growing problem of harassment of political candidates, stating "If my recommendations assist, that will be a good thing."

He also explained that it had been going somewhat beyond his remit to discuss a general aggravation covering exploitation and vulnerability, and hesitated to suggest that his proposals should cover behaviour such as abuse of retail workers – the subject of a proposed member's bill at Holyrood.

Lord Bracadale concluded: "In a civilised society people should be able to live together, respecting one another and treating each other fairly, regardless of differences. Hate crime legislation will not achieve that alone. But a clear, well defined and implemented scheme does have a fundamental contribution to make.

"My report is intended to enable Scottish politicians to debate the issues involved and to encourage public discourse. I hope the review has made some contribution to tackling the very real problem of hate crime, and I am grateful to all who participated in it."

Click here to access the full report, and here for a summary leaflet.