Chapter 4: Statutory aggravations: some issues
In this chapter we cover a number of issues on the statutory aggravation provisions which arose during the initial stages of this review. (The current statutory aggravations were outlined in chapter 3.)
The current thresholds and the use of the phrase “evincing malice and ill-will”
As we explained in chapter 1, there are two alternative ways in which an act may be considered to be a hate crime. These tests are set out in the legislation.
One threshold is that at the time of the offence or immediately before or after, the offender “evinces” towards the victim “malice and ill-will” relating to their group. For example, even if there is no other evidence that the accused was motivated by malice and ill-will, they may still use hostile language about the person’s race or sexuality.
The phrase “evincing malice and ill-will” is well-known to Scottish criminal lawyers. For generations, courts have treated murders as more serious (or aggravated) where the perpetrator “previously evinced malice and ill-will” against the victim: for example, if the accused had made threats prior to the murder. The phrase may, however, not be particularly accessible. There may be an argument that it would be better replaced with a more easily understood alternative, such as “demonstrating hostility”.
The other threshold is that the offence is motivated by malice and ill-will towards persons who have a particular characteristic. In other words, the reason why the person committed the offence was because of malice and ill-will in relation to a protected group. Motivation can be difficult to prove.
So, the statutory aggravation provisions mean that a general offence will be considered aggravated as a hate crime if (a) the perpetrator showed malice or ill-will based on the protected characteristic, either before, during or after committing the offence; or (b) there is some other evidence that the perpetrator was motivated by such malice and ill-will.
Do you consider that the current Scottish thresholds are appropriate? Please give reasons for your answer.
Should “evincing malice and ill-will” be replaced by a more accessible form of words? If so, please give examples of what might be appropriate.
Perceived associations of certain groups
In our initial evidence gathering, we have heard of cases where individuals feel that they have been subject to criminal conduct because of the perceived associations or connections between a group to which they belong and another group.
A specific example relates to the perceived links between the Jewish community and Israel. Some within the Jewish community report that the level of threatening behaviour which they experience in relation to political discourse about the state of Israel is much greater than would have been the case if they were not Jewish. They report a sense of feeling ‘held to account’ for the actions of a political state for which they have no responsibility.
Under existing hate crime law, an offence is aggravated if it is motivated by malice and ill-will against a religious group, but there is no equivalent aggravation if an offence is politically motivated. There may be some circumstances in which acts are motivated both by antipathy towards a political idea and towards a religious group which is thought to be connected to that idea.
Similar issues arise in relation to perceived links between Muslims and Islamist terrorist organisations, or indeed between Catholics and the IRA and between Protestants and the UVF. Existing Scottish provisions on religiously aggravated offending specifically cover ‘a social or cultural group with a perceived religious affiliation’ (which might, for example, cover the Orange Order). However, there is no equivalent provision relating to a religious group with a perceived political or social association.
Should an aggravation apply where an offence is motivated by malice and ill-will towards a political entity (e.g. foreign country, overseas movement) which the victim is perceived to be associated with by virtue of their racial or religious group? Please give reasons for your answer.
Religiously motivated offending
A specific issue about religiously motivated offending is raised in the review’s remit. This arises from a murder case in 2016.
On 7 July 2016, at the High Court in Glasgow, Tanveer Ahmed pled guilty to the murder of Asad Shah, a shopkeeper in Glasgow. Mr Shah was a member of the Ahmadi sect of Islam. Most Muslims believe that Muhammad was the final Prophet and many consider that any statement to the contrary is blasphemous, but Ahmadis believe that Muhammad was not the final Prophet. Mr Shah had used social media to publish messages which were capable of being interpreted as meaning that he himself claimed to be a prophet. When Tanveer Ahmed pled guilty to the murder, he issued a statement explaining that he had committed the murder because he felt Mr Shah had disrespected the Prophet Muhammad and had claimed to be a prophet himself. There was no suggestion that other members of the Ahmadi sect considered Mr Shah to be a prophet. Therefore, Tanveer Ahmed’s statement could be interpreted in terms of his attitude of malice and ill-will against the individual religious beliefs of his victim and the way in which the victim had expressed those beliefs.
The current religious statutory aggravation only applies where the offence is motivated by malice and ill-will towards members of a religious group. It does not apply where the malice and ill-will is directed towards individual religious beliefs or practices. Accordingly, prosecutors took the view that the case did not fall within the current definition of hate crime in Scotland.
The current law assumes that individuals always form part of a wider religious, social or cultural group when practising their religion or belief. However, it has been suggested that this approach is too narrow, and the law should also apply to offences motivated by intolerance of the expression of an individual’s beliefs.
The counter argument is that it does not matter whether the specific religious aggravation applies to this kind of offence because the judge was able to impose a strict sentence anyway. In passing sentence, Lady Rae specifically commented:
This was a brutal, barbaric and horrific crime, resulting from intolerance and which led to the death of a wholly innocent man - who openly expressed beliefs which differed from yours - but - who also exercised an understanding and tolerance of others whose religious beliefs might be different from his own.
It is accepted by you in the agreed narrative that this was a religiously motivated crime, although it was not directed towards the Ahmadi community.
However, this approach means that the conviction would not be recorded as religiously aggravated. It would not appear as a hate crime on the offender’s criminal record and would not be included in hate crime statistics, so the overall picture of hate offending may not be clear.
Should an aggravation apply where an offence is motivated by malice and ill-will towards religious or other beliefs that are held by an individual rather than a wider group? Please give reasons for your answer.
Transgender and intersex
The statutory aggravation in section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 includes aggravation by prejudice against transgender or intersex people.
Transgender is an inclusive umbrella term for anyone whose gender identity (our internal sense of our gender) or gender expression (how we express our gender, for example through clothing, speech and social interactions) do not fully correspond with the sex they were assigned at birth.
We heard from the Equality Network and the Scottish Trans Alliance that the language used within the definition of transgender identity in section 2 needs to be updated. The definition is welcomed as inclusive, but is considered to be out of date in its detailed language.
The definition also incorrectly suggests that intersex is a form of transgender identity. Intersex is an umbrella term used for people who are born with variations of physical sex characteristics that do not always fit society’s perception of male or female bodies. It is important to be clear that intersex (which is about our physical body) is not the same as gender identity (which is about our sense of self).
Do you have any views about the appropriate way to refer to transgender identity and/or intersex in the law?
‘Intersectionality’ is the idea that an individual’s experience is not governed solely by one aspect of their identity, but by a number of elements. So, for example, a Muslim woman’s experience of discrimination or hate crime might be very different from the experience of a Muslim man or a non-Muslim woman.
Hate crime legislation in Scotland has been developed over time through the creation of a series of provisions which each ‘protect’ a specific group. Many of the campaigning organisations with an interest in hate crime have a focus on one particular group, and some academics have argued that the ‘silo’ approach in existing legislation – focusing on specific identities - can lead to competition between groups for resources or recognition and confusion for victims.
There are undoubtedly important questions for criminal justice authorities and policy makers about how to deal effectively with criminal conduct which affects victims differently because of multiple aspects of a person’s identity. However, the important question for this review is whether the offences set down in legislation are an effective means to tackle such conduct.
We have heard from members of the Crown Office and Procurator Fiscal Service that charges can have more than one statutory aggravation – for example, in cases where the conduct in question is motivated by malice and ill-will relating to both religion and disability. In this context, it is important to remember that statutory aggravations can apply where the offence was partially motivated by the form of prejudice – it does not need to be the only motivation. The annual COPFS hate crime statistics also recognise this. Where a charge has more than one hate crime aggravation, it is included in the overall figures for each type of hate crime into which it falls.
Does the current legislation operate effectively where conduct involves malice and ill-will based on more than one protected characteristic? Please give reasons for your answer.
Email: Independent review of hate crime legislation - secretariat, firstname.lastname@example.org
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House