Hate Crime: Lawyer answers questions about Scotland's new laws

Today (1 April 2024), new hate crime laws come into effect in Scotland.

The new legislation is called the Hate Crime and Public Order (Scotland) Act 2021. It was passed by the Scottish Parliament three years ago but is only now being enforced.

The controversial laws have come under fire over fears it could curb freedom of expression, be ripe for abuse and overwhelm police.

Clyde 1 has spoken to senior law lecturer at Glasgow Caledonian University, Dr Nick McKerrell. to answer some questions about the new law.

What is a hate crime?

Hate crimes are motivated by prejudice against someone, or against a group of people, based on protected characteristics such as age, disability, race, religion, sexual orientation, or transgender identity.

Many forms of prejudiced or offensive behaviour are not hate crimes. It is not against the law to be prejudiced.

To be prosecuted under new laws, the behaviour must be severe enough to actually make it a crime.

The majority of hate crimes in Scotland were already prosecuted under "threatening or abusive behaviour", which is likely to cause a "reasonable" person to be "fearful or alarmed".

For example, if someone shouts threats at a person in the street, using homophobic slurs leaving them in a state of fear or alarm, that is likely to be a hate crime.

But - if someone misgenders a transgender person on social media, that would not be a crime because it is not likely to be, or intended to be threatening or abusive and would not put someone in a state of fear or alarm.

What is new about this law?

The new offence of “stirring up hatred” is something which already existed in law in regard to racial hate crime - now it is being extended to all protected characteristics.

It only applies when there is threatening or abusive behaviour, and it can also be proven that the person deliberately intended for their behaviour to drum up hatred of certain groups.

Again, an example of misgendering someone on social media would not apply.

We can also now see an 'aggravator' added to crimes where it can be proven the crime was committed due to hateful

Dr McKerrell said: "The stirring up hatred part of the law is not completely new because it has already existed for 30 years in the context of racial groups and rationalities.

"The other new part, which still isn't completely new, is 'aggravators'.

"When there's an existing crime, like assault for example, if you assault someone based on their protected characteristic then you can get an additional aggravator to that crime and it can increase the sentence and punishment if you're found guilty of it."

Can I be reported for offending people?

Dr McKerrell explained that simply being offensive does not count as a crime.

He said: "There is a high criminal test, because you have to be threatening and abusive to someone to cause them fear and alarm, and that concept has existed in Scots law for a while.

"What it doesn't cover is just annoying someone, or offending them. That is not an explicit part of the legislation.

"Built into the legislation is a defence of freedom of expression."

Will this law infringe on our right to freedom of speech?

For the first time in law, the definition of freedom of speech has been explained with specific protection.

The law states that people have a right to express ideas that "offend, shock or disturb", so long as they do so without crossing a line into criminality,

Dr McKerrell said: "The defence explicitly says that people are allowed to shock or offend people with their language. That has to be recognised in terms of this law.

"It's quite a high criminal test and being offensive isn't enough.

"If there was some cartoon or a video of a stand-up comedian on social media which was offensive to a group, in my view, that would not meet the test of being threatening or abusive and would fall into the category of freedom of expression.

"All law in the Scottish Parliament must follow the European Convention of Human Rights, that's part of the structure of devolution.

"That includes Article 10, the freedom of expression. All this law is focussed on is the threatening and abusive part."

Will Police Scotland be inundated with hate crime reports?

Last week, Scottish Conservatives leader Douglas Ross said he had recieved warnings from police who say the Bill is flawed.

First Minister Humza Yousaf responded that he was confident in the ability of police to weed out vexatious complaints.

Dr McKerrell weighed in on the debate: "I'm not sure if that is a fair criticism.

"Any new criminal law has an implication for resources, and because of the publicity, people will be aware of this.

"But the police's job, which they are well trained in, is to identify criminal behaviour and their identification of threatening or abusive behaviour will be central to that.

"Whether people now feel offended or insulted, that may make them contact the police, but that would not reach the level of criminal responsibility in this context.

"The police have a separate policy, which is not related to the hate crime law, which is registering hate incidents.

"That is if somebody feels that they've been subject to some form of hate then that can be registered, and that's something which has been ongoing.

"There may be issues with running that alongside this new law, which the police might look at, but that's the position as it currently is and has nothing to do with this law.

"If people do complain, I think the police are well trained in identifying criminal behaviour."

Hear the latest news on Clyde 1 on FM, DAB, smart speaker or the Rayo app.