Scottish Hate Crime Bill - information and resources.

[ArabellaScott]

Well. Here we go.

Disclaimer: I don't have any special expertise or knowledge. Check everything for yourself.

The Bill:

https://www.legislation.gov.uk/asp/2021/14/contents/enacted


PART 1 Aggravation of offences by prejudice

PART 2 Offence of racially aggravated harassment

PART 3 Offences relating to stirring up hatred



It's part three that is most relevant to women and feminists.

I'll just paste the whole of Part 3:



(1)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting, or

(ii)communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting, and

(b)either—

(i)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or

(ii)a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

(2)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening or abusive, or

(ii)communicates to another person material that a reasonable person would consider to be threatening or abusive, and

(b)in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to a characteristic mentioned in subsection (3).

(3)The characteristics are—

(a)age,

(b)disability,

(c)religion or, in the case of a social or cultural group, perceived religious affiliation,

(d)sexual orientation,

(e)transgender identity,

(f)variations in sex characteristics.

(4)It is a defence for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable.

(5)For the purposes of subsection (4), in determining whether behaviour or communication was reasonable, particular regard must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb.

(6)For the purposes of subsection (4), it is shown that the behaviour or the communication of the material was, in the particular circumstances, reasonable if—

(a)evidence adduced is enough to raise an issue as to whether that is the case, and

(b)the prosecution does not prove beyond reasonable doubt that it is not the case.

(7)For the purposes of subsections (1)(a)(i) and (2)(a)(i), a person’s behaviour—

(a)includes behaviour of any kind and, in particular, things that the person says, or otherwise communicates, as well as things that the person does,

(b)may consist of—

(i)a single act, or

(ii)a course of conduct.

(8)For the purposes of subsections (1)(a)(ii) and (2)(a)(ii), the ways in which a person may communicate material to another person are by—

(a)displaying, publishing or distributing the material,

(b)giving, sending, showing or playing the material to another person,

(c)making the material available to another person in any other way.

(9)A person who commits an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), or

(b)on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

[ArabellaScott]

Further provision relating to the offences
5Powers of entry etc. with warrant

(1)A sheriff or justice of the peace may grant a warrant under this section authorising a constable to enter premises if the sheriff or justice of the peace is satisfied, by evidence on oath, that there are reasonable grounds for suspecting—

(a)that an offence under section 4 has been, or is being, committed at the premises, or

(b)that there is evidence at the premises of the commission of an offence under section 4.

(2)A warrant granted under this section remains in force for a period of 28 days beginning with the day on which it was granted.

(3)A warrant granted under this section may authorise a constable to—

(a)enter the premises by force if necessary,

(b)search the premises and any person found in the premises,

(c)seize and detain any material found on the premises, or on any person in the premises, if the constable has reasonable grounds for suspecting that it may provide evidence of the commission of an offence under section 4.

(4)A constable who is authorised by a warrant granted under this section to seize and detain material may, if the material is only capable of being looked at, read, watched or listened to (as the case may be) after conversion from data stored in another form, require that the material—

(a)be converted into such a form in a way which enables it to be taken away, or

(b)be produced in a form which is capable of being taken away and from which it can be readily converted.

[ArabellaScott]

Guidance from Police Scotland (parts are redacted, but mostly intact. There are 25 pages, and much of it is worth reading.):

https://www.scotland.police.uk/spa-media/5yagp2ye/hate-crime-national-guidance.doc

'Hate Incident - Any incident which is perceived by the victim or any other person, to be motivated (wholly or partly) by malice and ill-will towards a social group but which does not constitute a criminal offence (non-crime incident).
 
While it is accepted that not every hate report will amount to criminality, officers are required to take preventative and protective measures even when a non-criminal offence is apparent. Seemingly low level or minor events may in fact have a significant impact on the victim. Crime type alone does not necessarily dictate impact or consequences of the action. Repeated targeting of a person, whether by the same perpetrator or not, can lead to what is known as the ‘drip drip’ effect i.e. although seemingly minor incidents, the repeated nature could affect the person’s ability to cope. Each individual will be affected differently.'
 


'Motivation

In Scotland, hate crime / incidents mean any crime or incident where the perpetrator’s actions are motivated wholly or partly, by malice and ill-will towards the individual, on the basis of their actual or presumed disability, race, religion, sexual orientation or transgender identity.
 
If the perpetrators actions prior to, or immediately after the incident, demonstrates malice and ill-will towards the victim, on the basis of their actual or presumed disability, race, religion, sexual orientation or transgender identity, then this provides evidence of motivation.
 
Victims of hate crimes / incidents do not have to be a member of any of the above social groups in order to be a victim. For example, an individual who is the victim of a transphobic incident does not have to be transgender, or disclose their transgender identity, for this to be perceived, recorded and investigated as a hate related incident.

Malice and ill-willUnderstanding malice and ill-will is important to understanding the extent of the hate. The term hate implies a high degree of animosity, whereas the definition and the legislation require that the crime must be demonstrated or motivated (wholly or partly) by malice and ill-will.
 
(In the absence of a precise legal definition of malice and ill-will, consideration should be given to the ordinary dictionary definition, to wish someone harm).

Perception

For recording purposes, the perception of the victim or any other person is the defining factor in determining whether an incident is a hate incident or in recognising the malice element of a crime. The perception of the victim should always be explored, however they do not have to justify or provide evidence of their belief and police officers or staff members should not directly challenge this perception. Evidence of malice and ill-will is not required for a hate crime or hate incident to be recorded and thereafter investigated as a hate crime or hate incident by police.
 
The alleged actions of the perpetrator must amount to a crime under Scottish Crime Recording Standard (SCRS) rules. If this is the case, the perception of the victim, or any other person, will decide whether the crime is recorded as a hate crime. If the facts do not identify a recordable crime but the victim perceives it to be a hate crime, the circumstances will be recorded as a hate incident (non- crime incident).

Other Person PerceptionPerception based recording refers to the perception of the victim or any other person. The fact that any person can perceive an incident to be motivated by malice and ill-will is of particular note to police officers or staff, who in themselves can identify that an incident is a hate incident, despite the fact that the victim has not. Some people with a learning disability, dementia, or mental health illness may not realise that they have been the subject of a hate crime or hate incident. Therefore, police staff or officers can still record it as such, based upon their own or a third party’s perception.
 
The other person could also include but is not limited to:
·                     Bystander/witness;
·                     Family member;
·                     Third Party Reporting Centre staff;
·                     A carer or other professional who supports the victim;
·                     Any other person.'


...



'Hate Crime Online Reports

The online reporting facility is available to all members of the public via the Police Scotland website.
...
the incident or crime reported may appear to be very low level however due to it being hate related with the specific targeting of the individual or group because of who they are or who they are perceived to be the impact can be highly significant.'

...
'·                     If investigating a hate crime or hate incident and the enquiry officer perceives the crime or incident to be motivated by malice and ill-will, even though the victim or other person has not highlighted this as an issue, it must be recorded as a hate crime or hate incident (as applicable).'

[ArabellaScott]

https://wingsoverscotland.com/a-very-dark-place/

From Neale Hanvey, MP

'In my reading this act is in conflict with Articles 1, 6, 8, 9, 10, 14 and 17 of the European Convention on Human Rights (ECHR) to which the UK State is a signatory and where in Scotland, civil and political rights are protected by the Human Rights Act 1998 and the related provisions that underpin the Scotland Act 1998.
No public body is outside the rules when it comes to the Equality Act, and the Scottish Government must be legally challenged in this regard. I fully expect to be accused and arrested under this law.'

[ArabellaScott]

Analysis from MBM policy:

https://murrayblackburnmackenzie.org/2024/02/23/he-says-she-says-how-police-scotland-policy-risks-weaponising-hate-crime/

'the imminent Hate Crime and Public Order Act ... provides for the offence of stirring up hatred on the basis of transgender identity. This is based on a test as to whether a reasonable person would find the behaviour ‘threatening’ or ‘abusive’, and an assessment that it was intended to stir up hate. The interpretation that front-line police officers place on ‘abusive’ and ‘hate’ will therefore be critical to how widely the net is cast, in the initial recording and investigating of incidents.

The Act provides for a defence based on protecting rights under Article 10 ECHR (freedom of expression), but this is phrased in very general terms and only applies once a person has been assessed as potentially having committed the offence. It does not of itself provide overt protection from initial investigation and recording, based on a low threshold for defining ‘abusive’ and ‘hate’.
Neither Police Scotland nor the Scottish Government have provided any details or reassurance on how it will protect freedom of expression in this context.'

[ArabellaScott]

Comment from Andrew Tickell in the National:

'There are – I think reasonable – anxieties that the legislation could be weaponised by frivolous complaints about conduct the Act isn’t aimed at criminalising. It’s essential that police officers handling complaints have a thorough sense of the strength of the free expression protections written into the proposals, and prosecutors too.'

'To convict anyone of the new “stirring up” offences, prosecutors must prove the following beyond reasonable doubt. First, would a reasonable person think what you’ve said or done is threatening or ­abusive? Did you deliberately ­intend to stir up hatred against a minority group? Unlike most other offences, being reckless isn’t enough. The complainer’s subjective perceptions of your intentions – again – do not determine your criminal liability under the legislation, and it is flatly ­untrue to suggest otherwise.

Then there are the defences. Would a reasonable person conclude what you’ve said or done is reasonable in all the ­circumstances? If so, you have a ­complete defence. Law enforcers will have to factor this into their investigations and ­charging decisions. The Act gives them a strong steer, telling police and courts to have “particular regard” for freedom of ­expression, “including the general ­principle that the right applies to the ­expression of information or ideas that ­offend, shock or disturb”.'

https://www.thenational.scot/politics/24190310.ignore-falsehoods-hate-crime-act-plenty-safeguards/

https://archive.is/AJ4y2

[ArabellaScott]

Comment from Michael Foran, Lecturer in Public Law at the University of Strathclyde:

'I think@PeatWorrier [Andrew Tickell, see National article]
is right that Hate Crime Act has robust safeguards. The problem is that these safeguards are likely to kick in only when cases get to court. Before that what matters is police practice which could be very heavy handed or it could be reasonable.'
'Which do you think is more likely? If the police investigate every complaint, presumably confiscating phones and laptops for months at a time while they do, safeguards in the Bill are useless until a conviction is brought'
'Concerned lawyers aren’t focused on the risk of prosecution (which will be tempered by human rights considerations). The focus is on the chilling effect that could ensue and the potential weaponisation of the police in response to political disagreement.

https://twitter.com/michaelpforan/status/1769354765811511478

[ArabellaScott]

https://archive.is/qcewD

The Herald on possible effects on the arts/theatre:

'Police Scotland’s officers are being told they should target actors and comedians under Scotland’s new hate <a class="break-all" href="https://archive.is/o/qcewD/www.heraldscotland.com/news/crime_courts/" rel="nofollow noindex" target="_blank">crime laws.
Training, obtained by The Herald, states that material regarded as “threatening and abusive” under the Hate Crime and Public Order (Scotland) can be communicated “through public performance of a play.”'

[ArabellaScott]

Police Federation of Scotland:


'David Kennedy, the general secretary of the Scottish Police Federation (SPF), told The Scotsman the online training packages that officers had undertaken were “just not going to be good enough”.
...
Mr Kennedy added: “Police are going to be inundated with people wanting to <a class="break-all" href="https://archive.is/o/RaIIB/www.scotsman.com/news/politics/hate-crime-law-glasgow-lgbt-sex-shop-designated-official-reporting-centre-for-controversial-new-laws-4553231" rel="nofollow noindex" target="_blank">report a hate crime. We need to make sure the public understand the Act. It certainly won’t be an easy Act to understand.”
...
Mr Kennedy said: “Third party reporting has been there before. But you’ve then got to get the statements from the right people and that can be an issue.
“We could end up with people being charged who should not be charged because people do not understand the law. We are asking officers to police a law that they are unprepared for. And that’s where mistakes will happen.”'



https://www.scotsman.com/news/politics/hate-crime-laws-scotland-warning-people-could-be-wrongly-charged-amid-claims-police-scotland-unprepared-for-new-law-4554538

https://archive.is/RaIIB

[ArabellaScott]

Joanna Cherry calls for a delay:

'“I agree with MBM that given the intervention by the Committee, the lack of preparedness highlighted by the Scottish Police Federation, and the large expansion of the unregulated third-party reporting scheme, the Scottish Government should delay commencing the Act.” The KC said she was very concerned about the “absence of tailored defences for women who hold the view that sex is immutable and who wish to speak plainly about this.”
She added: “I have little doubt that this new law will be weaponised by trans rights activists to try to silence, and worse still, criminalise women who do not share their beliefs.
“A cursory look at social media shows that some of these activists already have one high profile woman in Scotland in their sights. Experience shows that working class women will also be targeted.'

https://archive.is/PxQnw

[ArabellaScott]

An article in The Critic from MBM policy:

https://thecritic.co.uk/how-trans-activists-captured-the-hate-crime-agenda/

'The commencement of the Hate Crime and Public Order (Scotland) will put Scotland on a distinct path from England and Wales, with more widely scoped law and only generic, and therefore unclear and unreliable, protections for freedom of expression. 
...
In Scotland, the single service has yet to catch up on the Miller ruling, whilst the Scottish Government has sought to extend its legislative reach. Just as gender recognition reform in Scotland sought to cement self-identification principles in law, the Hate Crime and Public Order (Scotland) Act will help cement a longstanding unregulated and subjective “hate crime” agenda, affording new opportunities to weaponise “hate” based on nothing more than an unpredictable interpretation of what constitutes “abusive”.'

[ArabellaScott]

https://freespeechunion.org/scotland-office/

The Free Speech Union have opened a Scottish office.

'Free speech is under assault across the United Kingdom, but there appears to be less tolerance for dissenting, non-conformist views in Scotland than the rest of the U.K. And it will get worse when the Hate Crime and Public Order (Scotland) Act is activated (it received Royal Assent in 2021). So, if you’re a Scottish resident worried about being punished for exercising your right to free speech, you should join the FSU.'

[PronounssheRa]

It's an absolute shit storm, which will create a chilling effect on freedom of speech. I'm glad I don't live in Scotland.But it has given us the hate monster for which I'm ever grateful https://twitter.com/sewingwithsteel/status/1769718419073409112

[ArabellaScott]

https://www.citizensadvice.org.uk/scotland/law-and-courts/legal-system-s/police-s/if-you-are-arrested-and-held-in-custody-by-the-police-in-scotland/

Your rights if you are arrested in Scotland.

[ArabellaScott]

How to make a Subject Access Request from Police Scotland:

https://www.scotland.police.uk/access-to-information/data-protection/subject-access-requests/

[Thelnebriati]

Excellent thread. I suspect the first few cases will hinge on the definitions of 'reasonable' and 'insulting'.

[ArabellaScott]

If you are a woman who has ever put her head above the parapet, you may wish to consider what to do if you may become a target for this law.

While it seems unlikely that anyone will be convicted under it, this still leaves possible arrest, interrogation, confiscation of computers/phones etc, a court case, lawyers fees, etc, to deal with.

Internet housekeeping:

It's sensible to register on websites/discussion boards with a throwaway email address rather than one in your real name.

Consider a VPN.

If anyone has the names of helpful lawyers with expertise in this area, it'd be great if you could share them.

Consider joining local feminist/women's rights networks.

[ArabellaScott]

*when I say it's unlikely that there will be convictions, that of course depends on the views of a 'reasonable person'.

[IcakethereforeIam]

The Telegraph has picked up on the risks to actors

https://www.telegraph.co.uk/news/2024/03/19/hate-crime-police-scotland-training-actors-plays-prosecute/

https://archive.ph/5tRn4 breaking the fourth paywall

Whether they do face arrest or not, it's clear that there is confusion and fear.

[Heylo]

(1)A person commits an offence if—

(a)the person—

(i)behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting,

jesus Christ. 2 major issues already

(1) that a person commits an offence based on the offended considers it ‘insulting’. People insult each other all the time. That’s actually terrifying

(2) TRAs are not reasonable, they are nuts

[ArabellaScott]

It is terrifying Heylo.

I know lots of brave women and men are planning to defy the law, but frankly I'm not looking forward to living with the threat of getting hauled off by a police force weaponised to do the bidding of any random who makes an anonymous report.

There is greater risk for anyone who's publically gender critical, but tbh the risk is there for absolutely every Scottish citizen. This law will be there to be abused by any gossip, mentally unstable person or vindictive ex, any mischievous child, etc.

There is no threshold and no need for evidence.

Report anonymously online and the police will investigate.

The crucial thing is the police guidance.

I do wonder if the police, who have raised concerns about the bill since it was in Parliament, are well aware of how stupid the law is and expecting it to be demonstrated as unworkable quite quickly.

Meanwhile, we are living in a country that feels horribly authoritarian, dystopian, and opaque. Its a very far cry from the positive place we had imagined a few years ago

[Rainbowshit]

I'm absolutely terrified. I write to my MSPs on a frequent, almost monthly basis regarding gender ideology!showing them evidence of the harms of self ID. I can't do that anymore can I?

[stealtheatingtunnocks]

What happens when you are arrested? They hold you at the station and question you? Jennifer steamie was questioned at 1am or somrhing ridiculous. So they can hold me over a weekend or public holiday and question me when I should be sleeping?

can I take a book or knitting or so I just sit in the cell tik they take me to be questioned?

my knowledge of police process comes from The bill, which might not be sufficient.

[stealtheatingtunnocks]

Swaine, Jennifer swaine, not Jennifer steamie!

[Igneococcus]

This is a rant more than a useful resource but I rather enjoyed someone not mincing their words for once. I didn't know the the word Clype until an Alex Massie comment a few days ago.
https://www.thetimes.co.uk/article/218c451e-d528-4c09-9292-ca75b01032e1?shareToken=ed35e5ca8d05136f78b45a2adf6bbd3d

[EasternStandard]

@Rainbowshit

I'm absolutely terrified. I write to my MSPs on a frequent, almost monthly basis regarding gender ideology!showing them evidence of the harms of self ID. I can't do that anymore can I?

I’m so sorry you are facing this it’s unconscionable

I fear similar here