The Hate Crime and Public Order (Scotland) Act, passed in 2021, followed a review of hate crime legislation by Lord Bracadale.
There has been a statutory offence of incitement to racial hatred since 1965 but the 2021 Act creates other offences of ‘stirring up’ hatred in several other categories.
These are called ‘protected characteristics’: age, disability, religion, sexual orientation, transgender identity and ‘variations in sex characteristics’ (relating to ‘physical and biological characteristics of the body’).
What does ‘stirring up’ hatred mean and how can you break the law?
It is conduct which encourages others to hate a particular group of people.
To fall foul of the law, you would have to behave in a manner that a ‘reasonable person’ would consider to be threatening or abusive – or, in the case of racial hatred, insulting.
The law also applies to communication of material – for example on social media – in addition to comments or behaviour.
Other crimes, such as assault, can be ‘aggravated’ by offences under the Hate Crime Act, if a motivation of ‘malice and
ill-will’ can be shown towards someone with ‘protected characteristics’ – for example if someone is assaulted because of their race or disability.
What is a ‘reasonable person’?
A ‘reasonable person’ is an ordinary citizen, famously referred to by Lord Devlin as the ‘man on the Clapham omnibus’ – and it is a test used in other areas of the law.
The test is intended to be objective so a police officer
or prosecutor has to put themselves in the position of a ‘reasonable person’ to make a judgment about potentially unlawful comments or behaviour.
What are the possible penalties?
Someone convicted of stirring up hatred under the Act after a jury trial could be jailed for seven years, or be hit with a fine, or both.
For a less serious offence – tried by a sheriff sitting without a jury – they could be jailed for a year, or fined, or both.
Is there any legal defence to a charge under the Act?
Yes – it is a defence to show your behaviour or commun-ication was ‘reasonable’ in the circumstances.
When considering reasonableness, there must be ‘particular regard’ to the importance of the right to free speech – even when it is offensive, shocking or disturbing.
Under the Hate Crime Act, the threshold of criminal liability is not that a victim feels offended but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive.
Do all minorities covered by the Act have the same legal protection?
No, there are differences. ‘Race’ includes nationality and citizenship as well as colour and ethnicity.
The offence of stirring up racial hatred can be committed not only where behaviour or communication is threatening or abusive, but also where it is insulting.
This is not the case for sexual orientation, transgender identity, age or disability.
For these categories, it is not an offence if actions or speech are merely insulting – they would have to be threatening or abusive and intended to stir up hatred.
What about religion?
‘Discussion or criticism’ of religion is permitted under the Act – together with ‘expressions of antipathy, dislike, ridicule or insult’.
Stirring up hatred on religious grounds is an offence, but the threats or abuse ‘would have to be truly outrageous before the criminal law was interested’, according to legal expert Professor Adam Tomkins, a former Tory MSP.
Ridiculing or even insulting someone’s religion might be unwelcome – but it would not be criminal under the Hate Crime Act.
Does the law apply only in public?
No – it also applies to private homes, not just to comments or behaviour in public, raising the possibility that dinner party conversations could be criminalised.
Critics say this level of state intrusion is unjustifiable and Lord Bracadale, who carried out the review which led to the new law, was opposed to the move.
Professor Tomkins, a legal expert at Glasgow University, backed the broad principles of the Act – but ultimately voted against it while an MSP over the extension of its reach to people’s homes.
Will it undermine artistic freedom?
Police Scotland insists it will not ‘target’ actors and stand-up comedians who take part in productions or make jokes which could be considered to contravene the Act.
But it has said that all complaints about alleged hate crimes will be investigated – so if a spectator contacted police about a joke by Frankie Boyle, for example, it would be taken seriously.
The Scottish Police Federation (SPF), representing rank-and-file officers, has warned that the Fringe festival in Edinburgh could be ‘busier than normal’ this summer, as officers may have to question comedians who are the subject of hate crime complaints.
What have the police said about the Act?
The Association of Scottish Police Superintendents has warned that activists could seek to ‘weaponise’ the new legislation.
Officers could be swamped with vexatious complaints – at a time when Police Scotland has said it will no longer investigate minor crimes.
It also warns that public trust in the police could be damaged if the service is drawn into online spats – taking officers away from investigating more serious crime.
The SPF has said officers have not received adequate training – and believes that not all of them will have been trained in enforcement of the new legislation by today.
Will ‘misgendering’ be a criminal offence under the Act?
Women’s campaigners say no explicit safeguards have been written into the law to protect those who insist that (for example) people cannot change sex, or that only women can be lesbians.
First Minister Humza Yousaf claims that ‘if you were to say a trans man is not a real man or a trans woman is not a real woman, you would not be prosecuted’ – as long as you did not intend to stir up hatred.
JK Rowling has said she will not delete social media posts which could breach the ‘ludicrous’ law after she was embroiled in a misgendering row with transgender broadcaster India Willoughby.
What is a ‘hate incident’?
The recording of ‘non-crime hate incidents’ pre-dates the Hate Crime Act – but there could be more of them as a result of its implementation.
Officers can log an incident where no criminality has been proven to build up a picture of the prevalence of racial tension, for example, in the community, and reports can be made by third parties – such as someone who overhears a remark and believes it could be a hate crime.
Tory MSP Murdo Fraser revealed last week he was the subject of a non-crime hate incident after a trans activist reported him over a tweet critical of SNP Government non-binary policy.
Mr Fraser is threatening legal action against Police Scotland to have the policy scrapped.