Sunday National, 14th March 2021.
Good, basic information can be hard to come by – particularly when things get politically heated. If you’ve been watching Holyrood this week, you can’t have missed the controversy around the Hate Crime and Public Order Bill which passed on Wednesday with cross-party support, 82 votes to 32. In the paper today, Ruth considers the issue of women’s inclusion – and exclusion – from the Bill.
As a criminal lawyer, I want to give you a more general insight into what the Bill actually says and explain how it fits into the law already on the books in Scotland, as this has often been obscured by much of the debate about these proposals and anxieties it has provoked.
A great deal of the commentary around the Hate Crime Bill bears no perceptible connection to what the legislation actually says. Whether or not you support the idea of having stirring up offences on the statute book – hopefully we can agree to disagree about what’s actually in the Bill rather than chasing phantoms. So let’s park the lazy generalisations and superheated claims. Let’s aim for light rather than heat.
Go back to the beginning. Back in January 2017, the Scottish Government gave Lord Bracadale a commission to look at the state of hate crime law in Scotland. The judge reported his findings in May 2018. He concluded that our legislation on hate crime was a mess and merited consolidation. Over the years, Holyrood had recognised a wider and wider range of aggravators – from religion to sexual orientation, transgender identity and disability – scattered across different statutes. In parallel, racial hatred was the only stirring up offence Scots law recognised, while south of the border, this had been extended to sexual orientation and religion.
Bracadale recommended consolidation and extension of the law, so consolidate and extend the Scottish Government did. It sounded like a tidy piece of technical law-making – but Bracadale and the Government clearly underestimated the explosive potential of legislating in this area. The idea of a Hate Crime Bill touches on a range of sore points and sensitivities in our culture and was always likely to prompt a backlash. If ministers were naïve about the extent of that controversy – well they ken noo.
Given that controversy, you might be wondering why Holyrood passed the Bill so emphatically this week. And to understand that, you need to understand how dramatically the Bill has changed since it was first introduced. And rightly so. Alongside many others and organisations, I thought the Scottish Government had got the balance wrong in its first draft, that the new stirring up offences needed refined, and free speech protections extended.
And that’s precisely what’s happened. This element of the Bill is a good example of Holyrood’s Justice Committee doing the work they were meant to do – testing the evidence, scrutinising the detail, forcing amendments, fining and refining the law. Specific provisions on theatres and performances were also knocked out of the proposals, as were unnecessary provisions on the “possession of inflammatory material.” What we’re left with is a Bill of two main parts. Part 1 consolidates the law on offences aggravated by prejudice. Part 2 extends the law by recognising new offences of stirring up hatred.
Let’s take them in turn. The main way hate crimes are recognised in Scots law is by “aggravators.” That’s true now, and will remain true once the new Bill comes into force. These aggravators don’t change the substance of the criminal law. Instead, they can be attached to criminal charges – assault say, or breach of the peace or threatening or abusive behaviour – where there is evidence that the crime was motivated by bigotry.
Aggravators are usually proven by what the accused person said immediately before, during or after the commission of the crime. If a homophobic slur accompanies a blow from a fist, for example, or if the abuse doled out is anti-Irish or anti-Catholic – then these are the kinds of cases where an aggravator will be attached to the indictment or complaint. These aggravators are based on the perceptions of the perpetrator – not the characteristics or perceptions of the victim.
Subjecting a Sikh to anti-Islamic harassment would still be an offence aggravated by religious prejudice, notwithstanding the fact the bigot got their victim’s religion wrong. Equally, the fact a victim of assault feels like they were singled out on the basis of one of their characteristics isn’t enough to evidence an aggravator either. If proven beyond reasonable doubt, aggravators are recorded and taken into account by the judge on sentencing. It should be obvious that aggravators do not threaten anyone’s legitimate freedom of expression.
Part 2 of the Bill raised wider concerns – and rightly so – as it does extend the criminal law. But in order to convict anyone of the new offence of “stirring up hatred,” prosecutors will now have to overcome a formidable series of legal tests. Firstly, they’ll need to show you acted in a manner which “a reasonable person would consider to be threatening or abusive.” Despite what you might have read, someone taking subjective offence to something you’ve said or something you’ve tweeted is not criminalised by this legislation. Comb through all the sections of this legislation, and you’ll only find the “o” word mentioned once – in a paragraph making it clear that the ideas which offend are protected by the right to free expression.
The Bill is now clear that “discussion or criticism” of issues around religion, disability, transgender identity or sexual orientation cannot, in and of itself, amount to threatening or abusive behaviour. There has to be something more to it to bring the behaviour within the ambit of the criminal law. On top of that, we also need to prove two more things. Firstly, we need to show that the threatening or abusive behaviour complained of was intended to stir up hatred. If we can’t establish that the accused person actually intended to vilify a section of the population based on their sexuality, say, or their religion – then there’s no crime.
Above and beyond that, there’s also a defence of reasonableness. If prosecutors can’t prove beyond reasonable doubt, on corroborated evidence, that you’ve acted in an unreasonable way, there’s no crime either.
After further amendments this week – inspired by the Human Rights Act – even this reasonableness defence has been further strengthened. In deciding whether the conduct was reasonable, the courts are told to have “particular regard” to the importance of free expression, “including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb.”
Taken together, these interlocking tests create high thresholds for criminalisation. And higher, I’d argue, than any of the existing offences we might use in Scotland to catch this kind of behaviour. The common law crime of breach of the peace – which is always trotted out as some kind of solution in these contexts – has none of these caveats and exemptions for free expression, and remains much more vaguely defined than the language used here. The statutory offence of threatening or abusive behaviour – which has been on the statute books in Scotland since 2010 – places no particular emphasis on freedom of speech, and can be committed recklessly into the bargain. Section 127 of the 2003 Communications Act even makes it a crime to post material online which is of a “grossly offensive or of an indecent, obscene or menacing character,” and sets out no legal framework for evaluation what “offensiveness” might mean in this context.
Some critics of the Hate Crime Bill have taken issue with concepts which have been used in Scots law for decades. Stirring up offences have been with us for longer than I’ve been alive. The offence of “threatening or abusive behaviour” has formed part of Scots law since 2010. You’ll find a “reasonable person” test woven through almost every part of Scotland’s civil and criminal laws. If you think the idea of proving intention is too vague – then we’re going to need to junk our laws on theft and fraud, and murder too.
Whether or not you agree with the idea there should be offences of stirring up hatred on the statute book – and that’s a philosophical question – it is an objective legal fact that the new stirring up offence will be considerably harder to prove than a whole gamut of crimes already on the statute book which already apply to what you say and what you tweet.
You may not find this fact reassuring, but I’d suggest it should inform your reading of and reaction to the Hate Crime Bill.