Are Scottish ‘Hate Crime’ laws fit for purpose?

By Fraser Sutherland, Campaigns Manager Humanist Society Scotland

Few will forget the shocking religiously motivated murder of popular Glasgow shopkeeper Asad Shah in 2016. But the legacy of this crime and how the perpetrator was charged in the Scottish legal system plays a significant part in a wider contemporary debate and review of the countries hate crime laws.

Part of the Scottish Government public education campaign on Hate Crime

There have been recent moves by both the Scottish Government and Police Scotland to prioritise tackling hate crime in Scottish society, with extra funding and public awareness campaigns. While it is a phrase used quite regularly in our legal system and in public life there is no written definition of what constitutes a hate crime. The current working definition used by the government is:

“a crime committed against a person or property that is motivated by ‘malice or ill-will towards an identifiable social group’.”

Added to this is the fact that laws covering these crimes or ‘aggravations’ are varied and piecemeal in nature. They have developed over time and have in fact lead to different approaches towards different kinds of prejudice. Different laws cover racially motivated crimes to those targeting religious groups or differing legislation to tackle attacks on LGBT individuals. On the face of it, having differing legislation may make sense, after all different groups may face different kinds of crime or malice.

However is there a case for rolling such criminal offences together into one law to challenge prejudice across society?

Added to this cocktail of legal reams is the much discussed, debated and especially among some football fan groups, hated, Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. There is a serious attempt currently in the Scottish Parliament to scrap this law lead by James Kelly MSP who described it as:

“flawed on several levels, including its illiberal nature, its failure to tackle sectarianism, and that the police already have appropriate charges to prosecute.”

Something the Scottish Government has always denied, putting the case forward that the act gives police and prosecutors the required powers to deal with sectarian or other threatening behaviour at football games. The Community Safety and Legal Affairs Minister Annabelle Ewing said in defence of the act recently:

James Kelly MSP, attempting to scrap the Offensive Behaviour at Football Act

This Government stands on the side of the many tens of thousands of football supporters who want to enjoy watching our national game with family and friends in an atmosphere that is not tainted by offensive, abusive and prejudicial behaviour.

The act came about after a number of sectarian incidents surrounding the Old Firm football clubs of Glasgow in 2011 including violence at games both on and off the pitch, numerous arrests and even parcel bombs were sent targeting high profile supporters.

Questions were asked in parliament, action was demanded both from footballing authorities but also national government. At the time football broadcaster Chick Young said after a match that resulted in numerous arrests:

“In 40 years of covering Old Firm matches, this one is up there with one of the most scandalous I have ever seen. I can’t believe the behaviour of the people on the park and time after time I have said this is something that has a ripple effect which is felt deep into the night.”

The result was legislation that created additional criminal offences “in relation to a regulated football match which is likely, or would be likely, to incite public disorder” as well as other controls relating to threatening communications. Much criticism has been made about the fact that activity that would be an offence at a football game is not consider so, for example, during a parade or protest. In addition to sectarian behaviour the act also controversially included making an offence of:

“other behaviour that a reasonable person would be likely to consider offensive.”

Football fans protest against laws targeting behaviour at Scottish matches

A clear problem exists – who decides what is offensive? 

Away from football however other problems exist with the way in which, no doubt well meaning hate crime legislation, has come to be used in real life situations.

In the context of any legislation which seeks to protect individuals from hate crimes there needs to be a wider appreciation of the need to protect free speech where it is not deliberately malice or hateful. For example criticism of a theological or philosophical position is not an attack on individuals, despite some individuals seeing it as inappropriate or offensive.

There is clearly a distinction to be made between incitement to or carrying out of a crime against a person based on a protected characteristic and a reasonable criticism of a religious or political viewpoint.

Section 74 of the Criminal Justice (Scotland) Act 2003 provides means for courts to tackle offences where it has been aggravated by religious prejudice with particular sentencing. However to come under this act a victim must be part of “a defined religious group”.

In the case relating to the murder of Asad Shah mentioned previously, the case did not meet this narrowly defined test. Mr Shah was a member of the Ahmadi sect of Islam, who do not believe that Muhammad was the final prophet, something which some other Muslims consider Blasphemous. Mr Shah had posted videos on social media which could have been interpreted as he was claiming to be a prophet himself.

Glasgow Shopkeeper Asad Shah, was murdered because of his beliefs

The man charged with his murder, Tanveer Ahmed pled guilty and released a statement to the effect he had killed Mr Shah because he felt that the Prophet had been disrespected and Mr Shah had claimed to be a prophet himself. As this was an individual manifestation of Mr Shah’s beliefs and not something that other members of the Ahmadi sect necessarily shared, the prosecution decided he was not targeted as part of “religious group”.

This case, and what it reveals about the current law should be of concern to Humanists and Atheists in particular.

As was seen in the case of Mr Shah’s brutal murder his murderer did not face additional charges of religiously motivated violence despite openly claiming so, just because Mr Shah’s views did not conform to an “established religion”. Humanist Society Scotland believe that the law should recognise an individual’s manifestations rather than purely membership of a set group. Where it can be shown that the manifestation of an individual’s belief was an aggravating factor in an offence then the court should be able to take that into account.

All Scotland’s Hate Crime laws are currently subject to an independent review by Lord Bracadale which the Society have made representations to and we would encourage any members who had views on the subject to respond by the consultation deadline of 23rd November 2017. More details of how to do so can be found here.

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