Here’s the reality of Scotland’s hate crime law

Sunday National, 20th October 2018.

Hate Crime Week seems as good a moment as any to realise we don’t seem to have the foggiest clue we mean when we talk about “hate crime” in this country.

Will I be carted off to the Bar-L for making a sexist joke? Is the leering barfly at risk of having his collar felt for boring yet another barmaid with the advice that she’d be prettier if she smiled? What about street preachers? Are they at risk of being lifted, for example, for reciting portions of Leviticus on the High Street? What about bloggers taking controversial perspectives on proposed changes to the Gender Recognition Act? Or bolshie atheists, calling out what they perceive to be the failings and confusions of organised religion? Could they all be in for a chap at the door?

A wise man once said “the beginning of wisdom is the definition of terms.” But in the UK, the language of hate crime is used much more often than it is defined. And that’s a problem. Looked at through the law’s gimlet eye, much of the commentary about what does and does not constitute a hate crime is hopelessly inaccurate.

Hate incidents are conflated with hate crimes. Proponents and critics of hate crime laws both seem inclined to exaggerate how far these laws truly extend. Both routinely claim hate crime legislation catches behaviour which any decent duty solicitor would recognise falls squarely outside the criminal law.

In this birl of ignorance, confusion and anxiety about what hate crime is and how Parliament might change it, we’re at risk of shadow-boxing phantoms and missing the real story. So let’s tidy up these misconceptions. Let’s get the basics right.

Hate crime in Scotland is currently a mess. It developed piecemeal. It is scattered all over the place. Recognising this, the Scottish Government tasked Lord Bracadale with reviewing the whole area. He reported earlier this year, recommending that the statute book should be tidied up into a single coherent piece of legislation. So far, so rational. So uncontroversial.

Turn to the substance of his proposals. What did the judge recommended? You might be under the impression that the elderly jurist has trundled way off piste in his retirement,and has proposed to make windows into all our souls with an unprecedented array of thought-crimes. To describe this as a dramatic overstatement is a dramatic understatement.

In Scots law, hate crime means one of two things. The first, and most important, way our law marks out crimes motivated by hatred are statutory aggravators. The second way the law tackles hate crime are distinctive, stand-alone offences for inciting hatred.

Take aggravators first. How do they work? In one of two ways, essentially. Prosecutors can attach an aggravator to a criminal charge where they find evidence the offence was either motivated by hatred, or where the perpetrator “evinced malice or ill-will” towards the victim immediately before, after or during the commission of the offence, based on their perceived sexuality, religious affiliation, and so on.

One benefit of these aggravators is that they recognise the distinctive damage which hate crimes can do, without illiberally extending the criminal law. They don’t extend the criminal law at all, in fact. If you can’t prove that a common or garden crime has been committed by your hypothetical misogynist or racist or homophobe, there can be no aggravation by hatred based on gender, racism or sexual orientation.

And if the judge or jury is unconvinced by the evidence for a prejudiced motive behind the offending? They can still convict the attacker for assault under deletion of the aggravator. But where our courts are satisfied that a crime was motivated by hatred, this must be recorded and taken into account in sentencing.

One writer suggested this week that hate crime is almost impossible to define, “because it is invariably in the eye of the beholder, and it is the beholder who gets to say what it is.” This argument might have some force to it if bore any resemblance to the legal reality . But it doesn’t.

Crimes aren’t aggravated by racial or religious hatred in Scots law just because the complainer has an ineffable feeling they were robbed because of their national origins or their religious beliefs. Instead – as it always does – the law looks for proof. But not in the subjective emotions of the victim, but the evidence of what the perpetrator said and did. The idea this is mind-bendingly subjective bears no serious scrutiny.

Nor does the idea that aggravators – including new aggravators based on gender or misogyny – would represent a new wave of thought crime or a sinister invasion of free expression. Unless, I suppose, you think it encompasses the right to call me a faggot or a fenian as you kick my head in.

There can be more marginal cases, where the prosecution is based not on physical violence, but what the accused says or does. People still talk a lot about the old common law offence of breach of the peace. The charge isn’t quite a dead letter, but the “two cop BOP” is no longer the most commonly prosecuted crime in Scotland. That crown has been taken by the new statutory offence of “threatening or abusive behaviour.”

Most hate crimes are prosecuted under this heading. So what does the procurator fiscal have to prove to bring home a conviction? They’d have to establish not only that the accused has behaved in a threatening or abusive way, but also show this behaviour was “likely to cause the reasonable person to suffer fear or alarm.” They’d also have to persuade the court and that the accused either intended to put the fear of god up their victim, or didn’t give a damn about the consequences of their behaviour. There’s even a defence that the conduct is, in its context, reasonable. The idea this would criminalise the average blue joker, the winker and the elderly chauvinist —  its fairyland.

Missing from recent commentaries are the real weaknesses in Lord Bracadale’s proposals. Alongside the solid idea of aggravators, the judge has also recommended that there should be a new offence of inciting hatred against all of the listed characteristics, from religious to gender to sexual orientation. For my part, I don’t think Bracadale has set the threshold for criminalisation high enough. His proposals suggest a measure of political naivete. But even a quick read of the main legal tests should underscore that this isn’t a form of criminal offence which is likely to catch the grinding-you-down, everyday sexism of the “give us a smile, love” persuasion.

Above all, the Scottish Government needs to proceed with much more care. The Cabinet Secretary for Justice told SNP conference earlier this month that the Scottish Government’s consultation on hate crime “will ask a specific question on whether to make hate motivated by misogynistic harassment an offence, just as hatred based on religion and race is.” The logic of this sentence is as broken as its syntax.

Much of the current confusion about what is and is not being proposed rests with the cavalier way ministers have talked about their plans. The Scottish Government’s “Dear Haters” campaign recognises that public understanding of what constitutes hate crime in Scotland remains muddy. Given the sensitivity of the issues at play here, Humza Yousaf has the responsibility to be much more circumspect about what is and is not being proposed. For the SNP, intervening in an unclear way, in an area of law already bedevilled with misconceptions, can only be a shortcut to yet another legislative misadventure.

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