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Scotland's New Hate Crime Laws - a review

The new Hate Crime and Public Order (Scotland) Act, came into force on April 1, 2024. Aimed at offering robust protection for victims and communities, these new laws symbolise a consolidation of existing statutes pertaining to hate crimes in Scotland. This legislative reform, deeply rooted in Lord Bracadale’s Independent Review, was developed through extensive consultation. It has not been without controversy, however.

The impetus behind these new laws lies in tackling a perceived surge in "hate crimes", including harassment and violence, The SNP government have claimed the Act sets a "very high threshold for criminality" to ensure justice and fairness in each case. As a criminal defence law firm, we understand the profound impact legislation has on society, as hate crimes threaten the very fabric of community cohesion, demanding a nuanced approach from legal practitioners in Scotland. This article aims to dissect the implications of the new hate crime laws for our clients, spanning across various protected characteristics such as religion, race, disability, and sexual orientation, and to delineate the legal pathways available for those affected.

Understanding the Hate Crime and Public Order (Scotland) Act

In our role as a criminal defence law firm, it's crucial to understand the intricacies of the Hate Crime and Public Order (Scotland) Act 2021, which will impact our clients facing prosecution under this new legislation. Here's a breakdown of key aspects of the Act:

• Modernisation and Extension: The Act was passed by the Scottish Parliament on 11 March 2021 and received Royal Assent on 23 April 2021, marking a pivotal step in modernising, consolidating, and extending existing hate crime laws in Scotland.
• New Offences and Protections:
  • Introduces offences for threatening or abusive behavior intended to stir up hatred against protected characteristics including age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics.
  • Adds to the stirring up of racial hatred offences, in place since 1986, with a higher threshold for criminality to maintain protections for freedom of expression.
• Significant Provisions:
  • Abolishes the offence of blasphemy, signalling a modern approach to hate crime legislation.
  • Provides for the power to add the characteristic of sex, addressing evolving societal norms and ensuring comprehensive protection against hate crimes.
  • Includes detailed provisions for reporting and addressing hate crimes, supporting both the victims and the judicial process in tackling such offences.

This Act sends a clear message that offences motivated by prejudice will be met with serious legal consequences.

The Controversy Surrounding the New Laws

The introduction of the Hate Crime and Public Order (Scotland) Act has ignited  debate, highlighting the delicate balance between enhancing protections for vulnerable groups and preserving the fundamental right to freedom of speech. Critics and supporters alike have voiced their opinions, leading to a polarised response to the new legislation:

• Freedom of Speech Concerns:

  • Critics argue the law's ambiguity may lead to unnecessary restrictions on freedom of speech, fearing the prosecution of individuals for expressing controversial opinions.
  • The Scottish Police Federation and others express concerns over the criminalisation of offensive comments, potentially infringing on freedom of speech.
  • High-profile cases, such as the decision not to take action against J.K. Rowling, underscore the complexities of enforcing the law without compromising free speech rights.

• Operational Challenges for Law Enforcement:

  • A significant portion of police officers  have not received training on how to enforce the act, raising questions about the consistency and efficacy of its application.

• Public and Governmental Perspectives:

  • While some praise the expanded protections, others worry about the potential for false reporting and the impact on free speech. The Scottish government maintains that the law protects victims and free speech, but critics, including J.K. Rowling, fear it signifies the end of free speech in Scotland

This ongoing controversy underscores the complexities of legislating against hate crimes while safeguarding individual liberties, a challenge we, as a criminal defence law firm, navigate in defending our clients' rights under this new legal framework.

Misogyny and Hate Crime Laws

In response to the increasing concerns regarding misogyny and its impact on women and girls, the Scottish Government is taking groundbreaking steps to address these issues through proposed legislation. The Misogyny and Criminal Justice (Scotland) Act, under consideration, aims to specifically safeguard women from various forms of abuse, reflecting an innovative approach in legal protections against misogyny.

Key Features of the Proposed Misogyny and Criminal Justice (Scotland) Act:

1. Statutory Misogyny Aggravation: Establishes a new category outside the Hate Crime and Public Order (Scotland) Act 2021, focusing specifically on misogyny.
2. New Offences: Introduces offences such as Stirring Up Hatred Against Women and Girls, Public Misogynistic Harassment, and Threats of Rape or Sexual Assault or Disfigurement, applicable both online and offline.
3. International Human Rights Integration: Aims to translate international human rights protections into domestic law, improving the legal framework concerning rape, sexual offences, and domestic abuse.

The proposal for this Act is part of a broader initiative to create a legal environment that not only punishes misogynistic crimes but also shifts societal perspectives, emphasising the accountability of perpetrators. This initiative is supported by the establishment of the Independent Working Group on Misogyny and Criminal Justice in Scotland, chaired by Baroness Helena Kennedy QC, which underscores the government's commitment to tackling misogyny through a comprehensive and focused legal approach.

Impact on Law Enforcement and Judicial Systems

The enactment of the new hate crime laws in Scotland has significantly impacted law enforcement and judicial systems, necessitating adjustments in training, resource allocation, and operational approaches to ensure effective implementation and enforcement:

1. Training and Preparedness Challenges:

   • As of now, a notable 20% of police officers have not received training on how to enforce the act, highlighting a gap in readiness among law enforcement personnel to tackle hate crimes under the new legislation.
   • To address this, the Scottish Government has allocated a total of £700,000 for training and resources, aiming to equip police forces and prosecutors with the necessary tools to enforce the new laws effectively.

2. Increase in Hate Crime Reporting:

   • There has been a significant rise in reported hate crimes, with a 9% increase to 6,683 incidents in 2020-2021 and charges brought under hate crime legislation soaring by 33% in the same period.
   • This uptick is partly attributed to the new laws empowering victims to come forward, coupled with enhanced mechanisms for reporting and addressing hate crimes.

3. Operational and Tactical Adjustments:

   • Law enforcement agencies are adapting to the changes by improving communication channels between officers and prosecutors and focusing on the complexities of hate crime investigations.
   • Additionally, the introduction of a new aggravation for crimes motivated by prejudice related to age, gender identity, or sex characteristics necessitates a nuanced approach to identifying and prosecuting hate crimes

Contact Keith Tuck Solicitors for legal advice

For individuals seeking legal advice or representation concerning the new hate crime laws in Scotland, Keith Tuck Solicitors stands ready to assist with a wealth of experience and expertise in criminal defence, contact us using the online enquiry form or by calling 0141 413 8091.