Catholic Church suggests Hate Crime review offers opportunity to consolidate legislation

Church comments come in response to the Scottish Government’s independent Review of Hate Crime legislation, chaired by Lord Bracadale.

The review is charged with considering whether existing hate crime law represents the most effective approach for the justice system to deal with criminal conduct motivated by hatred, malice, ill-will or prejudice.

Commenting on the review, Director of the Catholic Parliamentary Office, Anthony Horan who submitted a detailed response on behalf of the Bishops’ Conference of Scotland said: “This process is an opportunity, ultimately, to ensure that the legislation is just and that every group is protected. This does not have to be a “zero sum game” where one group “wins” and another “loses” but rather could be an opportunity to rationalise and simplify legislation. A desirable outcome would be a single aggravation such as section 74 of the Criminal Justice (Scotland) Act 2003. Applied to all protected characteristics equally, it would be a simple and straightforward “message.” which would foster harmony in that all groups would be treated equally in the eyes of the law.”

Mr Horan added: “It is important that any legislation, preserves judicial discretion recognising that Scotland has a Criminal Justice System populated by highly trained prosecutors and Judges. They are best placed to assess the strengths and weaknesses of individual cases and should be free to do so in the absence of their decision being “politicised” by legislation which creates a perceived “scandal” where none exists.”

The Church response also highlights Scotland’s long history of anti-Catholicism and urges Government recognition be given to the historic roots of present conflicts. Pointing out that for over twenty years successive Scottish Governments have dedicated significant resources into programmes and projects designed to tackle the symptoms of sectarianism. The submission adds, that in the same period the growth in such funding has been matched by an increase in religious hate crime.

The response notes, that “an opportunity exists to acknowledge that anti-Catholic sectarianism is qualitatively and quantitatively different from other types of religious hate crime in Scotland. Instances of anti-Catholicism outnumber all other type of religious hate crime combined, in a country where Catholics represent only 16% of the population. This is a product of the Reformation Parliament of 1560 and its condemnation of Catholic doctrine and worship including the ban on the celebration of all Catholic sacraments. No other religion or belief has ever been so proscribed in Scotland, the legacy of this proscription continues to the present day. A recommendation by this review, that the Scottish Government consider issuing a collective, retrospective apology could go some way towards building, repairing and renewing bonds between communities harmed by historical wrongdoing. It could also be the first step in addressing historical iniquities.”

 

Full text of Church’s response

Do you consider that the working definition, discussed in this chapter, adequately covers what should be regarded as hate crime by the law of Scotland?

Yes

Please give reasons for your answer.:

The definition discussed in this chapter is only partially adequate in terms of covering what should be regarded as hate crime. This definition is appropriate in the context of an aggravation and in the context of sentencing.

The questions regarding what constitutes a “hate crime” become more understandable and manageable when placed in the context of an aggravation. When creating a “new offence” these questions become fraught with difficulty. For example, legislation for certain words such as those identified in the consultation paper, could quickly render the legislation obsolete since the words used by society to identify particular groups (whether pejoratively or otherwise) are constantly changing. What constitutes “animus” or “unfriendliness” is constantly in flux depending on the mores of society at any given time. There is a disconnect between what the victim “perceives” to be animus and what the perpetrator thinks of his or her own conduct. The Stonewall commissioned report observes “many perpetrators would not necessarily think themselves capable of committing a ‘hate crime’.” This is the very essence of the difficulties created. When the internal dialogue between members of a particular group about what constitutes “animus” towards them changes more quickly than society’s ability to keep up with these changes there will inevitably be tension. The legislature cannot seek to fill this gap since the gap is protean by its very nature. The use of certain terms in the course of a criminal act is much more readily understandable and the courts can easily apply the objective facts of the case to infer a state of mind on the part of the perpetrator.

How can we prevent tensions and misunderstandings arising over differences inwhat is perceived by victims, and others, to be hate crime, and what can be proved as hate crime?

Please give reasons for your answer.:

The rationalisation and simplification of the legislation would make it easier for victims to understand and easier for police and prosecutors to explain.

It does not serve victims to give them unreasonable expectations. Experience shows that this leads to greater dissatisfaction and upset. The simplification of the legislation would assist in this regard.

The most effective “message” is a straightforward one. A single statutory provision for example, widely known and recognised, which uniformly deals with aggravated conduct is more likely to make an impact in the minds of the general public, reassuring them and warning them as to what constitutes this type of behaviour.

Should we have specific hate crime legislation?

Yes

Please give reasons for your answer.:

We should have specific hate crime legislation in the form of the present section 74 (Criminal Justice (Scotland) Act 2003) aggravation and applied to all groups.

This process is an opportunity, ultimately, to ensure that the legislation is just and that each group with an interest is rendered his or her due. This does not have to be a “zero sum game” where one group “wins” and another “loses” but rather could be an opportunity to create a rationalised and simplified piece of legislation.

To that end, it is submitted, that a desirable outcome of this review would be a single aggravation in the manner of the present section 74 of the Criminal Justice (Scotland) Act 2003. This, we submit, would be the most effective solution. This aggravation could be applied to all protected characteristics equally. It would have the benefit of precedent in terms of its understanding and interpretation by the legal community in Scotland. It would be a simple and straightforward “message.” It would allow the conduct to be assessed in the light of the “suite” of offences already available and already understood by the general public. It would allow Judges and prosecutors to maintain their discretion in a statutory framework with which they are already familiar. It would foster harmony in that all groups would be treated equally in the eyes of the law. It would not create confusing provisions with uncertain thresholds which might lead to the unjust criminalisation of private citizens and the stigma and impact which flows from that coupled with the grievances which can be fostered by such an approach.

It is also critically important that the individual discretion of prosecutors and judges is maintained. Scotland has a Criminal Justice System populated by highly trained prosecutors and Judges. They are best placed to assess the strengths and weaknesses of individual cases and should be free to do so in the absence of their decision being “politicised” by legislation which creates a perceived “scandal” when it is not deployed or insisted upon. This interference with the criminal justice system can provide a staging ground for social media campaigns designed to influence the judicial process which in turn renders the process susceptible to miscarriages of justice.

It should also be noted that for over twenty years successive Scottish Governments have dedicated significant resources into programmes and projects designed to tackle the symptoms of sectarianism. The growth in such funding has been matched by an increase in religious hate crime. Having devoted significant resources to the symptoms of sectarianism it is now appropriate that some attention is being given to its cause, through this review. In this context, an opportunity exists to acknowledge that anti-Catholic sectarianism is qualitatively and quantitatively different from other types of religious hate crime in Scotland. Instances of anti-Catholicism outnumber all other type of religious hate crime combined, in a country where Catholics represent only 16% of the population. This is a product of the Reformation Parliament of 1560 and its condemnation of Catholic doctrine and worship including the ban on the celebration of all Catholic sacraments. No other religion or belief has ever been so proscribed in Scotland, the legacy of this proscription continues to the present day. A recommendation by this review, that the Scottish Government consider issuing a collective, retrospective apology could go some way towards building, repairing and renewing bonds between communities harmed by historical wrongdoing. It could also be the first step in addressing historical iniquities.

Statutory aggravations: some issues

Do you believe there is a need to bring all the statutory sentencing provisions, and other hate crime offences, together in a single piece of legislation?

Yes

Please give reasons for your answer.:

As already stated, a single statutory provision, widely known and recognised, which uniformly deals with aggravated conduct is more likely to make an impact in the minds of the general public reassuring them and warning them as to what constitutes this type of behaviour.

It would be pertinent to note our concerns that the judicial system is becoming too politicised and it is vitally important to maintain a clear distinction between the three arms of democratic governance: the judiciary, the legislature and the executive. The judiciary mustn’t be hamstrung by endless reams of new legislation that is complex, confusing and inaccessible to the judiciary and to the general public.

Do you consider that the current Scottish thresholds are appropriate?

Not Answered

Please give reasons for your answer.:

The current Scottish thresholds are appropriate for the section 74 aggravation.

Should evincing malice and ill-will be replaced by a more accessible form of words?

No

If you support that, please give examples of what might be appropriate.:

For the reasons already set out elsewhere in this consultation, one aggravation would be appropriate.

The words “malice and ill-will” are perfectly understandable and accessible to members of the public and are well understood by the Scottish legal community. They retain the Scottish character of the offence and show continuity with the past in terms of what constitutes the type of behaviour which can meet this test.

Should an aggravation apply where an offence is motivated by malice and ill-will towards a political entity (e.g. foreign country, overseas movement) which the victim is perceived to be associated with by virtue of their racial or religious group?

No

Please give reasons for your answer.:

Again this only becomes manageable in the context of an aggravation of an existing crime since it demonstrates a connected “animus.” The difficulty with criminalising separately this type of behaviour is that it can have a severely illiberal effect. If a crime is committed, then the animus towards the individual, as a result of the protected characteristic, could constitute an aggravation of the crime (regardless of whether that it is further connected with a political entity). Thus, a perpetrator shouting and swearing at an individual whilst referring to their protected characteristic and seeking to draw a connection with the negative actions of a political entity could easily give rise to an inference of malice and ill-will in objectively assessing the evidence.

Should an aggravation apply where an offence is motivated by malice and ill-will towards religious or other beliefs that are held an individual rather than a wider group?

No

Please give reasons for your answer.:

This would be unworkable in practice. The sentence passed by Lady Rae in the Tanveer Ahmed case and her sentencing statement demonstrate perfectly that the administration of justice in individual unusual cases is best left to the deft touch of the Judge than the blunt brute force of legislation.

Do you have any views about the appropriate way to refer to transgender identity and/or intersex?

Do you have any views about the appropriate way to refer to transgender identity:

The fact that the language requires “updating” in the view of the community most directly impacted is a demonstration of the difficulties already alluded to. There is the possibility that any new definition will require to be updated again in the near future. The language currently used is now seen as inadequate when it was deployed in absolute good faith at the time.

Any definition used must take into account the fact that there is a metaphysical disagreement between significant sections of the community regarding the nature of this issue. There is a counter view that biological sex is an intimate part of our identity and that to separate gender and biological sex is a “dualist” approach of separation of mind and body which is novel in the tradition of Western thought. There is the danger of descending into a semantic game which may give rise to inadvertent further offence. Regard should be had to the objective reality of biological sex and the acceptance of biological sex as indicative of gender in large sections of society.

Does the current legislation operate effectively where conduct involves malice and ill-will based on more than one protected characteristic?

No

Please give reasons for your answer.:

This would operate effectively where one aggravation was deployed.

The use of a single aggravation incorporating all characteristics would allow the prosecutor in each individual case to draft as an averment in the charge libelled the particular characteristics struck at in any given offence.

Should the aggravation consistently be recorded?

Yes

Please give reasons for your answer.:

Consistently recording the nature of the aggravation in any case is desirable.

Is it necessary to have a rule that the sentencing judge states the difference between what the sentence is and what it would have been but for the aggravation?

No

Please give reasons for your answer.:

It is unnecessary and potentially counterproductive for a Judge or Sheriff to separately state the impact of the aggravation on sentence. There are potentially unnecessary appeal difficulties if this is overlooked. Additionally, there is the danger of a perceived “minimising” of the nature of the offence where the victim and wider public would otherwise see a sentence as just but for the fact that the part of the sentence attributable to the aggravation is not “enough.” It also artificially seeks to separate the crime from the aggravation when often both aspects are intimately connected.

Standalone offence: section 50A Criminal Law (Consolidation) (Scotland) Act 1995: racially aggravated harassment and conduct Is this provision necessary?

No

Please give reasons for your answer.:

To foster harmony, all protected groups should be treated equally in the eyes of the law and the “suite” of criminal offences presently available are perfectly adequate.

Should the concept of a standalone charge be extended to other characteristics?

No

If so, which groups? Please give reasons for your answer.:

 

Stirring up hatred and online hate crime

Should there be offences relating to the stirring up of hatred against groups?

No

If so, which groups? Please give reasons for your answer.:

If there are to be offences dealing with the stirring up of hatred against groups, do you consider that there needs to be any specific provision protecting freedom of expression?

Not Answered

Please give reasons for your answer.:

Does the current law deal effectively with online hate?

Yes

Please give reasons for your answer. :

Existing provisions are adequate.

Are there specific forms of online activity which should be criminal but are not covered by the existing law?

Not Answered

Please give reasons for your answer. :

Should this be tackled through prosecution of individuals or regulation of social media companies or a combination of the two?

Not Answered

Please give reasons for your answer.:

 

Offensive behaviour at football

How clear is the 2012 Act about what actions might constitute a criminal offence in the context of a regulated football match?

How clear is the 2012 Act about what actions might constitute a criminal offence in the context of a regulated football match? :

Should sectarian singing and speech, and the waving of banners and making gestures of a sectarian nature at a football match be the subject of the criminal law at all?

Not Answered

If so, what kind of behaviour should be criminalised?:

Does equivalent behaviour exist in a non-football context?

Not Answered

Not Answered

Please give reasons for your answer.:

Is it beneficial to be able to prosecute in Scotland people who usually live in Scotland for offences committed at football matches in other countries?

Not Answered

Please give reasons for your answer.:

Should a similar provision apply to non-football related hate crime?

Not Answered

Please give reasons for your answer.:

Is it appropriate to have a requirement that behaviour is or would be likely to incite public disorder in order for it to amount to a criminal offence?

Not Answered

Please give reasons for your answer.:

Is there any conduct currently subject to prosecution under section 1 of the 2012 Act which would not be covered by pre-existing common law or legislation?

Not Answered

Please give reasons for your answer.:

Should a football club be able to apply to the court for a football banning order?

Not Answered

Please give reasons for your answer.:

Should the law be extended to other groups?

Do you consider any change to existing criminal law is required to ensure that there is clarity about when bullying behaviour based on prejudice becomes a hate crime?

Not Answered

If so, what would you suggest?:

Do you think that specific legislation should be created to deal with offences involving malice or ill-will based on:

The present protected characteristics of religion, race, disability, sexual orientation and transgender identity are sufficient. This would assist in keeping the legislation both simple and accessible, avoiding confusion and complexity, which are two of the concerns we have raised in relation to the wider legislative context of hate crime.

It is also important to bear in mind the right to freedom of conscience and freedom of speech. There is a danger that suppressing these freedoms in relation to one group will make societal divisions worse and foster grievances. There is a climate of heightened sensitivity in the present culture and there is a very real danger that individual or collective opinions or beliefs will become a hate crime. We must guard against this and ensure basic freedoms, including religious freedom, are protected.

 

Other specific issues

Do you have any views as to how levels of under-reporting might be improved?

Not Answered

Please give reasons for your answer.:

Do you consider that in certain circumstances press reporting of the identity of the complainer in a hate crime should not be permitted?

Not Answered

If so, in what circumstances should restriction be permissible?:

Do you consider that a third party reporting scheme is valuable in encouraging reporting of hate crime?

No

If so, how might the current scheme be improved?:

The police are trained to deal with complainers. An intermediary leaves the process open to criticism and politicisation. Any complaint directed through a third party can give rise to evidential difficulties and potential interference with the process.

Are diversion and restorative justice useful parts of the criminal justice process in dealing with hate crime?

Yes

Please give reasons for your answer.:

Possibly, but it must always be at the behest of the victim.

Should such schemes be placed on a statutory footing?

Not Answered

 

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