The Scottish Government claims the 2021 Act simply modernises Scots law. There have been criminal offences of stirring up hatred against a group of persons defined by race or ethnicity in Scotland since the 1986 Public Order Act.
Under the 1986 Act, to establish a racial hatred offence there must be conduct of threatening, abusive or insulting words, behaviour, material, images or sounds. The prosecution must show the accused intended the conduct to stir up racial hatred, or that racial hatred was likely to be stirred up by it.
The 2021 Act also creates new standalone crimes of stirring up hatred against groups defined by characteristics of age, disability, religion, sexual orientation, transgender identify and variations in sex characteristics.
However, from the 2009 Offences (Aggravation by Prejudice) (Scotland) Act we already had aggravated hate crimes in relation to disability, religion, sexual orientation and transgender identity.
64% of hate crime charges in Scotland involve threatening or abusive behaviour under the 2010 Criminal Justice and Licensing (Scotland) Act.
Latest Crown Office figures reveal 5,738 hate crime reports in 2022/23 – most were for race crime with 3,145 reports, which was 31% lower than in 2011/12. The second most commonly reported hate crime was in relation to sexual orientation.
Why is the 2021 Act controversial? Some women’s rights groups and legal commentators worry that it will be weaponised by gender ideology campaigners to silence critics from expressing freedom of speech.
Last week, India Willoughby, a trans woman, reported J.K. Rowling to Northumbria police for misgendering her on the X platform. The police said the complaint did not meet the criminal threshold.
Are we going to see an avalanche of reports to Police Scotland about social media spats? That would be worrying at a time when the police have said they are no longer able to investigate “minor” crimes.
Police Scotland’s April 2021 guidance on hate crime is problematic. It states, “A hate crime is any crime which is perceived by the victim or any other person, to be motivated (wholly or partly) by malice and ill-will towards a social group”.
Section 4 of the 2021 Act makes it clear that the test for criminal conduct is what a “reasonable person” would consider to be threatening or abusive – in other words, the key test is objective and not subjective.
That’s important, as the way the legislation’s drafted, anyone in Scotland will be able to report a tweet they didn’t like posted by people on the other side of the planet. Police Scotland say they’ll investigate every complaint under the 2021 Act – just how that will work in practice is anyone’s guess.
Police Scotland’s guidance also states: “If the facts do not identify a recordable crime but the victim perceives it to be a hate crime, the circumstances will be recorded as a hate incident (non-crime incident)”.
The prospect of innocent people having a slew of adverse data recorded against them seems insidious and illiberal.
Will the new legislation cause more problems than it seeks to resolve? Will it go the way of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and be repealed?
We shall need to wait and see.
