Gender and age should be added to hate crime laws, Lord Bracadale report recommends

Young Muslim women - Image credit: Garry Knight via Flickr

Age and gender should be added to hate crime laws as protected characteristics, an independent report for the Scottish Government has recommended.

Lord Bracadale was commissioned in January 2017 to carry out a review of Scotland’s hate crime legislation.

In his final report, published this week, he recommends adding new ‘statutory aggravations’ relating to gender and age.

This means that if someone committed, for example, fraud against an elderly person because of their age and vulnerability, an additional penalty could be applied.

Intersex should also be considered a separate characteristic from transgender, it says.

The report also recommends that hate laws are simplified, bringing all hate crime legislation together in one place, and for the language used to be updated.

Bracadale also calls for the current offence of stirring up racial hatred to be extended to stirring up hatred against groups of people for other reasons, such as gender, age, disability, belief or sexual orientation or gender identity.

However, the report said that no new legislation was required to deal specifically with online hate crime or with offensive behaviour at football matches, because they could be prosecuted under existing laws.

Commenting on the report, Minister for Community Safety Annabelle Ewing said: “The Scottish Government will use this report as a basis for wider consultation with communities and groups across the country on how to bring forward new legislation that is fit for the 21st century.

“We have been consistently clear that legislation alone will not achieve the inclusive and equal society that we aspire to, however the laws passed by parliament do form a clear basis for what is and is not acceptable in the communities we are elected to serve.

“We will continue to work with communities across Scotland to build trust and understanding and, wherever possible, prevent hate crime from happening in the first place.”

Scottish Labour's shadow cabinet spokesperson for Justice, Daniel Johnson, said the report brought forward “a number of positive ways to tackle hate crime in Scotland”.

He said: “The findings provide a starting point for a robust and measured debate over how we as a society protect some of our most vulnerable friends and neighbours.”

But he added: “Scottish Labour notes the concerns raised over the lack of a recommendation for a specific law against misogyny.

 “Any law to tackle gender-based hatred must note the inescapable fact that almost all discrimination of this kind is perpetuated by men against women.”

His party colleague James Kelly, whose member’s bill repealed the Offensive Behaviour at Football Act, said: “This is a major blow for SNP ministers who shamelessly defended the Football Act up until its demise.”

The findings have also been welcomed by the Greens and the Liberal Democrats.

John Finnie, the Greens’ justice spokesperson, says the recommendations on transgender identity and age hostility were particularly welcome and would provide a “timely update”.

Liberal Democrat justice spokesperson Liam McArthur MSP said there was an opportunity to “provide clarity, boost public understanding, close loopholes and give victims greater confidence to report hostile and hateful actions”.

The Law Society of Scotland said the recommendations would bring clarity to the law.

Gillian Mawdsley, solicitor in the Law Society of Scotland's policy team, said: “It is critical that we consider whether Scotland has the right legislative protection in place to tackle hate crime wherever and whenever it happens.

“The review has been very timely given the incidence and publicity of crimes and offences motivated through hate.

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“We support Lord Bracadale’s recommendations for a baseline offence and statutory aggravations.”

She continued: “In our consultation response we called for all Scottish hate crime legislation to be consolidated and are pleased that this has been supported in the report.

“We think there are enormous benefits to be gained from having a clear set of rules and procedures.

“It will bring increased clarity alongside a better understanding and application of the law.

“If introduced, his recommendations will modernise the law and its language to make it appropriate to address the needs of the 21^st century Scotland.

“The recommendations recognise the need to update language and clarify how sentencing and recording of convictions should deal with aggravations.

“Specific legislation will raise awareness and help change attitudes by actively promoting a transparent and fairer society.”

However, women’s groups have expressed disappointment with the recommendation that gender-based hate and harassment only be added as an aggravating factor to existing offences rather than a standalone offence.

In a joint statement, Rape Crisis Scotland, Scottish Women’s Aid and Engender said: “The question of how to tackle misogynistic online abuse, sexual harassment in public spaces, and incitement to misogyny is one being raised worldwide.

“Women and girls face epidemic levels of misogynistic hate in schools, in the workplace, on city streets, and online.

“We called for a standalone misogynistic hate crime to be created in Scotland as a way of disrupting this epidemic.

“We think the recommendations put forward in this report do not pay enough attention to international experience and evidence.

“Other nations and states have found that simply adding gender to a laundry-list of groups protected by hate crime legislation leads to underreporting, under-investigation, and under-prosecution.

“We don’t want a law that languishes unused, giving impunity to perpetrators.”