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).

https://archive.is/YflLG

Joanna Cherry KC on the Act .

'OVER the last few days, a succession of men have taken to print and to the airwaves to tell you there is no cause for concern about the new Hate Crime Act coming into force on April 1. One headline even proclaimed concerns were “silly”.
I’m here to tell you that these men are wrong as well as patronising, and that, if you are a woman, you have every right to be concerned. I have no problem with consolidating and updating the existing hate crime aggravators. I believe that if an assault on a gay or a trans person is motivated by hatred of their sexual orientation or their gender reassignment, that should be reflected in the charge and the sentence. When I worked as a senior prosecutor in the High Court, I helped prepare and prosecute such cases.
I am concerned about the creation of the new offence of stirring up hatred against the protected characteristic of transgender identity. Not only is the offence vague but the characteristic is very widely drawn. For example, it extends beyond people who identify as trans to include cross-dressing men.

I’ll explain more below but first get this – biological sex is not included as a protected characteristic in the Act, despite women being one of the most abused cohorts in our society. This means that cross dressing men will be better protected under the law of Scotland than women.'

Oh, this is interesting.

'The retired Scottish judge who prepared the independent report which preceded this new hate crime legislation, Lord Bracadale, recommended that there should be a tailored freedom of expression protection for such women in it.'

(The Bill/Act was brought on recommendation of Bracadale's report on hate crimes).

https://www.craigmurray.org.uk/archives/2024/03/scotlands-hate-speech-act-and-abuse-of-process/

Craig Murray, who has been an ambassador, journalist, and also imprisoned by the Scottish Government, on the new Act.

'It is a well-established principle in Scots law that anything published on the internet, which can be read in Scotland, is deemed to be published in Scotland. The act of publication is not deemed to be the person actually publishing the item, let us say in Tahiti. The act of publication is deemed to be the reader opening the item on their device in Scotland.'

Also:

'In addition to holding that Scots courts have jurisdiction over anything published on the internet anywhere in the world, because if it can be read here it is published in Scotland, Scottish judges have also invented the doctrine of “continuing publication”.As it is the act by the reader of opening the matter online which constitutes publication, every time it is opened by someone in Scotland from the internet that constitutes a new publication. So any “hate speech” that has been online for ten years constitutes a new offence if you read it in Scotland now. “Hate speech” as defined in the Act, anywhere on the Internet, no matter when or where it was published, is going to be a new crime in Scotland if someone opens it or reads it after 1 April.'

If that isn't clear, I'll spell it out:

Anything published on the internet, at any time, can be considered a hate crime if anyone perceives it to be so. Police Scotland have committed to investigating every reported Hate Crime.

'Of the millions of people who could be prosecuted for online content read in Scotland, the intention is selectively to attack those who are gender critical.Now I am in fact not gender critical myself. I still find the intolerance puzzling. But I absolutely defend the right of those who are convinced that trans people are a threat to women’s rights to state their position, free from the legal harassment that is about to be unleashed upon them.
What we are seeing is terrible repressive legislation, amplified by a terrible legal doctrine, leading to massive power by the state over individuals. We are going to see monumental abuse of process. The state will take completely arbitrary decisions on selective prosecution according to a state-political agenda, and will refuse to prosecute millions of other “crimes” under the same Act. This is fascism.'

Thank you for corralling all of this into one place Arabella.

I've used an email in a different name & renamed myself regularly since the "intern" days but I'm not sure that's sufficient anymore & like Rainbowshit I'm on my MSPs frequents flyer list (although mine is not quite as odious😂)

I find the whole thing utterly dystopian- I don't actually agree with "hate crime" at all, I don't understand why hitting someone is worse/should receive a greater punishment depending on who you hit 🤷‍♀️ everyone should be equal under the eyes of the law.

I don't recognise my country.

Edinburgh Festival should be fun for comedians then.

https://www.holyrood.com/editors-column/view,hate-crime-these-laws-offer-no-help-to-women-while-increasing-their-alarm

'The taunting has already begun. Women are already fearful. And the SNP MP Joanna Cherry KC has warned that she has “no doubt” the law “will be weaponised by trans rights activists to try to silence, and worse still, criminalise women who do not share their beliefs”.

Also:

'What bothers me is the chilling and cumulative effect that various pieces of legislation, including this one, have had on women basically because MSPs were either too afraid, too craven, too party political, or too far behind the knowledge curve, that they boxed themselves so far into a corner on what it means to be a man or a woman, that when it came to the census, the forensic examination bill, the representation on public boards bill, the hate crime bill, the rules about transgender prisoners, the use of puberty blockers on children, the debate around trans inclusion in sport, and so it goes on, they were utterly paralysed by their own ignorance and fear, that they, bar some notable exceptions, were unable to enter the fray on anything that smacked of sex and gender. Even when it came to changes in the law.'

I saw someone say recently that the other parties will promise to repeal the HCA.

Will they?

Just reading that article when I came to this bit

You need only recall Patrick Harvie saying there were “shockingly overt homophobic and transphobic amendments” within the hate crime bill. And remember a similar critique of his around the forensic examination legislation in which the former Labour leader, Johann Lamont, successfully campaigned for victims of rape to be allowed to specify the sex of their examiner following such an assault. SNP activists later described the move as a ‘dog-whistle’ for ‘anti-trans campaigners’.

And I wondered how would that interact with the Hate Crime bill? I'm probably, I hope, catastrophising but could a traumatised woman be arrested if she refuses to be examined by a man? What if a woman refuses to have a man do her smear?

Anyone can be arrested for anything. The hate is in the perception of the person reporting. So, yes.

Iain MacWhirter in the Times with an opinion piece on the new law which I think is worth a read

https://www.thetimes.co.uk/article/hate-crime-laws-chilling-effect-is-already-being-felt-j00dzq33n

https://archive.ph/N8IBg mind your ps and qs then cross the paywall

I'm tempted to quote the whole article but this bit will do for now

The independence-supporting law lecturer Andrew Tickell assures us that speech only becomes a crime if “a reasonable person would consider it to be threatening or abusive”. Humza Yousaf recently echoed that assurance at first minister’s questions at Holyrood.

But who exactly is this “reasonable person” protecting our freedoms? Are judges reasonable? In 2019 one of them, James Tayler, ruled that the belief of Maya Forstater, a tax researcher, that people cannot change biological sex “was not worthy of respect in a democratic society”. That was eventually overturned after a lengthy appeal. But Judge Tayler was supposed to be capable of judging reasonableness and somehow didn’t.

How can there be freedom of speech, which (at the very least) requires people to speak freely if people are, metaphorically, going to be patting their words down for wrong think before they even utter them?

'This is the paradox of the reasonable person confronted by an unreasonable law. Is it reasonable to dismiss a law because you think it is unreasonable? Or do you accept it because it is reasonable to obey the law of the land even if you don’t agree with it? This has always been the dilemma faced by people living in oppressive and authoritarian regimes.'

Also this comment in the Times:

This is chilling:
No crime has been committed, yet these offences carry their own form of administrative punishment. This is because the police can release NCHIs under “enhanced disclosure” to HR departments assessing the suitability of candidates for certain jobs. You didn’t get that social work post you were so well qualified for? Just don’t ask

An MSP has had a tweet criticising the Scottish government policy recorded as a Non Crime Hate Incident.

If anyone has wondered how this law would be applied, here you go.

Criticise the government at your peril.

https://www.dailymail.co.uk/news/article-13233691/Scots-Torys-police-row-hate-tweet-claim.html

'Police Scotland has behaved not just outrageously, but unlawfully according to the legal advice obtained by the FSU. This is Police Scotland attacking free speech but it is more sinister than that. My tweet wasn’t pointing a finger at an individual, it was critical of a Scottish Government policy. If police are now treating criticism of SNP policy as hate incidents, that is a really serious issue as it shows how Police Scotland has been captured by the SNP policy agenda.’

On November 18 last year, Mr Fraser shared a column written by Susan Dalgety for The Scotsman, which claimed the SNP Government’s non-binary equality action plan would lead to children being ‘damaged by this cult’.'

From The Police Scotland Online Reporting Form for hate crime.

'Description information

Here are a list of things to think about when trying to describe someone.

• Their name.
• Nickname.
• Age.
• Date of birth.
• Address.
• Sex.
• Height.
• Build.
• Hair colour.
• Distinguishing marks.
• Tatoos.
• Occupation.
• Place of work.
• Email address.
• Phone number.
• Anything about them you can think of will be useful.'

https://www.scotland.police.uk/secureforms/c3/

What do they mean, 'sex'? Is this form transphobic?

That form's a hate crime, it's hate crimes all the way down.

Interview with Neale Hanvey.

https://twitter.com/JNHanvey/status/1772212924280430632

https://wingsoverscotland.com/into-darkness/

I don't understand why Westminster haven't stepped in to block it. I thought that it was because it only (jfc only!) affected people in Scotland so it was within the competence(?) of the devolved powers. However, if it actually applies to anyone anywhere in the world whose words might be heard or read in Scotland (even words that were written or said before 1st April) then it is clearly a massive overreach by ScotGov.

Does it apply in that way?

Fuck. One of my MSPs is Maggie Chapman. See you in the gulag?

I'm hoping the gulag has wifi.

I read that it does, or can be interpreted that way. I want to believe I've been misinformed.

There is so much confusion behind what you can say and what you can’t say.

The only way round it is for the Scottish Government to have a series of public announcements (in different languages too to make it fair) to educate people about what they are allowed to say and what they are not allowed to say. Rules for speaking and writing.

And it seems incredulous I have just written that!!!