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Article Scotland: Hate Crime Law Enters into Effect

The Hate Crime and Public Order (Scotland) Act 2021 entered into force in Scotland on April 1, 2024. The act serves to consolidate “relevant hate crime laws into one place, and updates and extends some of these laws,” along with abolishing the common law offense of blasphemy.

The creation of a new offense of stirring up hatred against a group with certain characteristics has received considerable attention from the press due to the type of protected characteristics it covers and does not cover. Section 4(2)–(3) of the act makes it an offense to behave or communicate in a manner that a reasonable person would consider to be threatening or abusive with the intention of stirring up hatred against a group of people defined by the characteristics of

(a) age,
(b) disability,
(c) religion or, in the case of a social or cultural group, perceived religious affiliation,
(d) sexual orientation,
(e) transgender identity,
(f) variations in sex characteristics.

This behavior can be a single act or a course of conduct. The requirement that a reasonable person would consider the behavior or communication to be threatening or abusive sets an objective standard. Section 4(1) additionally provides for a broader offense of stirring up hatred against a “group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins.” This offense is broader than the one based upon the protected characteristics mentioned in section 4(3) as it covers behavior or communications that are not only threatening or abusive, but also insulting, and a reasonable person “would consider the behavior or the communication of the material likely to result in hatred being stirred up against such a group.”

Section 4(4) of the act provides “show[ing] that the behaviour or the communication of the material was, in the particular circumstances, reasonable” can serve as a defense for those charged with an offense under section 4. Section 4(5) requires that Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression, be considered when determining whether the behavior or communication was reasonable. Section 4(9) provides that the offense is punishable with up to seven years’ imprisonment or a fine on conviction on indictment, or both penalties.

Section 1 of the act provides that offenses can be considered “aggravated by prejudice” if

(a) where there is a specific victim of the offence—

(i) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates malice and ill-will towards the victim, and
(ii) the malice and ill-will is based on the victim’s membership or presumed membership of a group defined by reference to a characteristic mentioned in subsection (2), or

(b) whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by malice and ill-will towards a group of persons based on the group being defined by reference to a characteristic mentioned in subsection (2).

The characteristics referred to in this offense are age; disability; race; color; nationality (which includes citizenship), or ethnic or national origins; religion or, for cases of social or cultural groups, perceived religious affiliation; and sexual orientation, transgender identity, or variations in sex characteristics.

The act provides that evidence to prove the offense is aggravated by malice does not need to be corroborated; it may come from a single source. If it is proven that an offense is aggravated by prejudice, it does not automatically result in a more severe sentence, but the court “must take the aggravation into account in determining the appropriate sentence.” In doing so, section 2 requires the court to state any difference in the sentence and the reasons for increasing the sentence. If the sentence was not increased, the reasons for this must also be stated.

Critics have expressed concern about the impact of the legislation on freedom of speech. Legislators state that the act protects free speech by providing that it is a defense if the actions are reasonable. It also specifically references the right to freedom of expression, which protects “ideas that offend, shock or disturb.” Women’s groups have noted that the law does not include sex as a protected characteristic. The government, however, has stated that it intends to introduce a separate misogyny law.

Senior police officials have reportedly stated that they expect to receive a large number of complaints relating to social media posts due to the provisions of the new law and have expressed concern that no additional resources have been provided to the police to help them deal with this.

Clare Feikert-Ahalt, Law Library of Congress
April 24, 2024

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Chicago citation style:

Feikert-Ahalt, Clare. Scotland: Hate Crime Law Enters into Effect. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-04-23/scotland-hate-crime-law-enters-into-effect/.

APA citation style:

Feikert-Ahalt, C. (2024) Scotland: Hate Crime Law Enters into Effect. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-04-23/scotland-hate-crime-law-enters-into-effect/.

MLA citation style:

Feikert-Ahalt, Clare. Scotland: Hate Crime Law Enters into Effect. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-04-23/scotland-hate-crime-law-enters-into-effect/>.