Hate crime law: Force for good or recipe for disaster?

 

Hate crime law: Force for good or recipe for disaster?

15 March 2024

By James Cook,

Scotland editor

https://www.bbc.com/news/uk-scotland-68570614

 

The law aims to give protection for individuals around their sexuality and gender identity, among other protected characteristics

 

What do a sex shop, a mushroom farm and a "hate monster" have in common?

 

They're all at the heart of a blazing row about prejudice, offence and freedom of speech in Scotland.

 

A public information campaign highlighting the introduction on 1 April of the Hate Crime and Public Order (Scotland) Act has begun — and is itself controversial.

 

It includes a Police Scotland video featuring a character called the hate monster who gets "bigger and bigger, "till he's weighing ye doon."

 

"Then, before ye know it," the subtitled video goes on, "ye've committed a hate crime."

 

The video has been ridiculed on social media as patronising.

 

The former Scottish Labour leader Johann Lamont described it on X, formerly Twitter, as "puerile," adding "the notion that hate is driven by economic disadvantage insults all who support their families and communities despite poverty."

 

"It ignores the hatred exercised by those who are financially secure," she added.

 

 

Supporters of the new legislation say the row about the video is a distraction from what they regard as a serious and essential attempt to make Scotland a more tolerant society.

 

First Minister Humza Yousaf was the justice secretary who shepherded the Hate Crime bill through the Scottish Parliament, declaring at the time that it "sent a strong and clear message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated."

 

The law criminalises threatening or abusive behaviour which is intended to stir up hatred against someone who possesses, or appears to possess, certain characteristics.

 

They are age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics sometimes known as being intersex.

 

Stirring up racial hatred by using threatening, abusive or insulting behaviour was already illegal under the Public Order Act 1986 and that remains the case under the new legislation.

 

The new law also provides for stiffer sentences for offenders convicted of crimes deemed to be "aggravated by prejudice," — in other words if they demonstrate malice or ill-will towards their victim based on the protected characteristics listed above, with the addition of a category for race, colour, nationality or ethnicity.

 

Controversially, the protected characteristics in the act do not include sex itself, an omission criticised by some feminist groups.

 

"This new law leaves women unprotected from hate crime," the Scottish National Party MP Joanna Cherry KC told me.

 

It would, she predicted, "be weaponised by trans rights activists to try to silence, and worse still, criminalise women who do not share their beliefs."

 

"There is no right not be offended," added Ms Cherry.

 

The Scottish government points out that it is preparing separate legislation relating to misogyny (hatred of women) after a review led by the human rights lawyer, Baroness Helena Kennedy KC.

 

But even some supporters of the new hate crime law as it stands have concerns, particularly about enforcement.

 

Police Scotland has pledged to investigate every hate crime complaint it receives, even though last week the force said it would no longer investigate every "low level" crime in Scotland, including some cases of theft.

 

David Kennedy, general secretary of the Scottish Police Federation, the union which represents rank-and-file officers, said it was "a recipe for disaster."

 

Officers "were only receiving a two-hour online training package," on the new legislation, he told Mornings on BBC Radio Scotland, adding "the police don't have time" to deal with a deluge of complaints.

 

"They can barely attend the calls that are in law at the moment never mind a new act coming in place," warned Mr Kennedy.

 

There are concerns around how the new law will be enforced by police

Police Scotland said in addition to the training package, it was offering an extensive programme of workshops "to allow officers to gain more understanding and ask any questions they may have."

 

The Scottish government insists its budget for next year "includes record police funding".

 

Nonetheless, concerns about police resources are shared by Roddy Dunlop KC, the dean of the Faculty of Advocates, which regulates senior lawyers in Scotland.

 

He said there was a danger of police being deluged by potentially trivial complaints made by people "who claim to have been insulted by something that's been said online."

 

Hate crime reporting centres

Police Scotland said no officer was available to be interviewed by BBC News about its approach to the hate crime legislation but it issued a statement which said: "Hate crime can be verbal or physical and can take place anywhere, including online.

 

"We want everyone targeted by hate crime, or those who witness it, to have confidence to come forward.

 

"They can be assured they will be treated with dignity and respect, and that the circumstances they report will be fully investigated."

 

To help people do so, the force is promoting "third party reporting centres" where "victims or witnesses of hate crime" who don't feel comfortable going to the police can make an allegation.

 

Such sites have been in place for a decade. Libraries, charities and victim support services make up the vast bulk of them.

 

But the inclusion of places such as a mushroom farm in East Lothian and Luke and Jack's sex shop in Glasgow have raised eyebrows.

 

Luke and Jack's founders, who describe themselves as "passionate purveyors of pleasure products," robustly defended their inclusion in the network, insisting they were well placed to help with reporting crime.

 

"We're not actually taking any of the information ourselves," he explained, adding "we're just kind of handholding and making sure that the police are getting all the information that is necessary."

 

Ironically, publicity about the shop's role had led to a "disturbing" online backlash, he said, forcing the introduction of extra security measures for staff.

 

The Scottish government said no minister was available for interview.

 

'Stirring up hatred'

In a statement it defended the use of third party reporting centres but also promised to set up a "short-life working group" to "re-evaluate the criteria of a third-party reporting centre, recording and maintenance of the scheme and how to improve support for centres and victims."

 

More generally, the looming introduction of the hate crime bill has reignited debate about the Scottish government's approach to issues of personal freedom.

 

In 2018, MSPs voted to repeal a controversial law introduced by the SNP which criminalised the "stirring up of hatred" against certain people or groups in relation to football matches, as well as outlawing certain "threatening communications".

 

The following year, SNP ministers abandoned attempts to appoint a named person to safeguard the welfare of every child in the country, after the UK Supreme Court criticised the plan as a breach of privacy.

 

MSPs made significant amendments to the current hate crime legislation when they were scrutinising the bill in parliament after lawyers, journalists and comedians raised concerns that it impinged on free speech.

 

Roddy Dunlop KC said the actual law was much improved from its original draft, in particular because freedom of expression was now "baked-in" to it.

 

However, he said, some "very understandable concerns" remained, and the Scottish state appeared to be more willing than it had been in previous times to interfere in people's private lives.

 

Mr Dunlop also said there was a danger of "completely malicious" complaints being recorded and retained by police, and urged the Scottish government to clarify how such data would be handled.

 

The UK government is grappling with similar issues as it discusses violence, hatred and intolerance in its attempt to define extremism.

 

But come April Fool's Day, many eyes will be on Scotland to see if it has managed to strike the right balance between authoritarianism and liberalism - and between freedom and safety - as it attempts to slay the "hate monster".

 

This article was amended to clarify the wording of the new legislation