Intention caveat in hate crime bill is ‘retrograde’ step, says Scottish Council of Jewish Communities

Jewish leaders have expressed concern about the Scottish Government’s plan to alter its hate crime bill so intention will need to be proved before a person can be charged with the new offence.

Director of the Scottish Council of Jewish Communities, Ephraim Borowski, told Holyrood’s Justice Committee this would provide a “get out of jail free card”.

But other religious and faith leaders have welcomed the planned amendment, which will see the new offence of stirring up hatred against protected groups apply only when someone intended to do so.

Justice Secretary Humza Yousaf’s announcement in September followed several stakeholders raising concerns about the impact the Hate Crime and Public Order Bill would have on freedom of speech.

The proposed legislation as it currently stands would create a new offences covering threatening or abusive behaviour where there is an intention of stirring up hatred or whether it is ‘likely’ to stir up hatred.

Yousaf confirmed to parliament the lower threshold of ‘likely’ would be removed by an amendment to the bill.

But Borowski said: “The amendment that has been announced by the cabinet secretary is retrograde.

"It essentially provides a get out of jail free card for something that you will see very often in hate-filled posts on the internet, that people having posted their hatred will then end their comments with ‘just saying’ or ‘just asking’.

“They are given a get out of jail free card because they can say ‘we didn’t intend to cause offence, we were merely asking a question’ about, for example, whether the Holocaust happened.”

He instead argued the decision of whether an offence had been committed should be decided on a case by case basis, taking into account wider circumstances and whether a “reasonable person” would expect comments to stir up hatred.

Existing law means people guilty of acts which are intended or likely to stir up racial hatred, having regard to all the circumstances, have committed an offence.

The hate crime bill aims to consolidate this legislation, as well as create new protections relating to age, disability, sexual orientation or transgender identity.

However, other faith leaders giving evidence to the committee broadly supported the amendment proposed for the Scottish Government and suggested it should go further.

Reverend Stephen Allison, representing the Free Church of Scotland, said: “The move to intention is helpful. There was so much concern around the ‘likely to stir up’ aspects of it and the untended consequences of that, that lots of people raised the concern.

“We welcome that being removed. What we would say on that is that intention is a legal term, it doesn’t necessarily mean what common people mean by intention – so we do still have some concerns about the use of intention.”

Further still, others called for the freedom of expression provisions to be broadened to allow expressions of antipathy, dislike, ridicule and insult.

And Muslim Engagement and Development called for specific definitions of different types of abuse to be added to the legislation, such as what is meant by Islamophobia or anti-Semitism.