EQUALITY NETWORK - Print Friendly

10/06/2009
Hate crime
Hate crime is defined as crime motivated by malice or ill will towards a social group. There is clear evidence of hate crime against LGBT people in Scotland. Scotland currently has the least progressive law on hate crime of any part of the UK, but that will change in a few months time.

Background
Hate crime is crime motivated by malice or ill will against a particular group of people. Hate crime on grounds of race has been recognised by legislation in Scotland for many years, and more recently (2003) legislation has recognised hate crime on grounds of religious prejudice. The Scottish Parliament passed the Offences (Aggravation by Prejudice) (Scotland) Act 2009 in June 2009, and we expect this to come into effect early in 2010. The new act recognises hate crime on grounds of sexual orientation, transgender identity, and disability.

The new act had its origins in the Scottish Executive's working group on hate crime , set up in 2003. The Equality Network was a member of that group. The working group published its recommendations in October 2004. Its first recommendation was that the hate crime law be extended to cover hate crimes on grounds of sexual orientation, transgender identity and disability.

Following the May 2007 election, in October 2007 Green MSP Patrick Harvie proposed a Member's Bill (a Parliamentary Bill led by a individual MSP rather than the Government) to implement the recommendation. In January 2008, the Scottish Government gave their full support to Patrick Harvie's Member's Bill proposal. The Offences (Aggravation by Prejudice) (Scotland) Bill was introduced in the Scottish Parliament in May 2008. We submitted written evidence and gave oral evidence to the Justice Committee which considered the bill at stage 1. The bill was passed unanimously by the Parliament on 3rd June 2009, and is now the Offences (Aggravation by Prejudice) (Scotland) Act 2009. We expect the new Act to come into effect early in 2010.

What the law says now

Hate crime against LGBT people can take many forms: assault, vandalism and verbal harassment are common. Assault and vandalism are specific crimes in Scotland. Harassment is not a crime as such in Scotland (unlike England and Wales), but any conduct which is likely to alarm or distress others can be prosecuted as the crime of breach of the peace.

The law in Scotland recognises that the circumstances of a crime can 'aggravate' the crime - that is, make it worse, and suggest a heavier or more appropriate penalty on conviction. There is legislation in Scotland that says that if a crime is motivated by malice or ill will on grounds of race or religion, the crime is aggravated, and the court must take the aggravation into account in passing sentence. There are also procedures in place to ensure that crimes aggravated by racial or religious prejudice are dealt with properly and that the prevalence of them is monitored

In the rest of the UK, the same applies to crimes motivated by prejudice on grounds of disability and sexual orientation, but not in Scotland, until the new Offences (Aggravation by Prejudice) (Scotland) Act (see above) comes into effect. When that Act comes into effect, probably early in 2010, it will extend the legislation in Scotland to cover crimes motivated by prejudice on grounds of disability, sexual orientation and transgender identity.

In theory, the common law of Scotland (that is, the law that is not specified in legislation, but has been developed over time by the courts) allows a complaint of a crime to specify that it was aggravated by hatred of any kind, and for the courts to take this into account. All the evidence however is that this 'common law aggravation' is not being effectively used to deal with homophobic and transphobic crime, and there is no monitoring of how many homophobic and transphobic crimes are prosecuted.

The one area of the justice system that does have procedures in place to deal with homophobic and transphobic hate crime is the police service. All police forces in Scotland now monitor the prevalence of homophobic and transphobic incidents. Where a report is made by police to the Procurator Fiscal, that should include details of the homophobic or transphobic nature of the incident. Until the new Act comes into effect however, the Procurator Fiscal Service lacks the tools needed to prosecute the crime as an aggravated crime.

Dealing with hate crime

Even though hate crimes against LGBT people in Scotland cannot yet be prosecuted as aggravated offences, they are still illegal. Assault of any kind is a serious offence, and vandalism is also a crime. Harassment can be prosecuted as a breach of the peace. The police have made big advances in recent years in fair treatment for LGBT people, and so our first suggestion if you are the victim of a hate crime is to report it to the police. If you do not feel confident in speaking directly to the police, some police forces operate a remote reporting system which allows you to report the crime through an independent body such as a support group. Even if you do not want things to proceed to a court trial, it is still useful to report the details anonymously through the remote reporting system, as the offenders may attack someone else, and any information the police have may assist in tracking them down.

There are links to each Scottish police force's website here. Remote reporting details are available online for Lothian and Borders, Strathclyde and for Central Scotland police - some other forces operate remote reporting also, but do not have details on their websites. For more information, try one of the LGBT switchboards.

Independent support for victims of crime can be provided by Victim Support Scotland .

If you are being harassed by someone, then whether or not they are prosecuted for a criminal offence, it may be possible to apply to court for a non-harassment order to stop them - a solicitor could advise on this. If you are being harassed in or around your home, it is worth speaking with your local council. It may be possible for the council to apply for an antisocial behaviour order (ASBO) to stop the people who are harassing you. A further possible source of advice is your local Citizens Advice Bureau.

If you are suffering harassment at work, that is a breach of the employment non-discrimination law, and you could make a complaint to an Employment Tribunal - see our page on discrimination law.