Scotland‘s new hate crime law has come into force, with JK Rowling and Elon Musk among its critics. The Harry Potter author and the owner of social media platform X both claim the legislation could harm free speech. Senior police officers say they expect a flood of complaints about online posts.
But the Scottish government insists the law provides protection from hate and prejudice without stifling individual expressionI think there has been a lot of misinformation,” about the legislation, said the Victims and Community Safety Minister Siobhian Brown, before going on to claim, inaccurately, that it was “passed unanimously” by MSPs in 2021.
In fact the law was approved by 82 votes to 32 with four abstentions after heated debate about its contents.The Hate Crime and Public Order (Scotland) Act 2021 creates a new crime of “stirring up hatred” relating to age, disability, religion, sexual orientation, transgender identity or being intersex.
The maximum penalty is a prison sentence of seven years.A person commits an offence if they communicate material, or behave in a manner, “that a reasonable person would consider to be threatening or abusive,” with the intention of stirring up hatred based on the protected characteristics.
Stirring up hatred based on race, colour, nationality or ethnicity was already illegal in Great Britain under the Public Order Act 1986 but, in an attempt to streamline the criminal law in Scotland, that too is now part of the Hate Crime Act.
The bar for this offence is lower than for the other protected characteristics, as it also includes “insulting” behaviour, and as the prosecution need only prove that stirring up hatred was “likely” rather than “intended”.
Free speech protection
Supporters of the hate crime law point out that it contains safeguards designed to protect freedom of speech.
For example, it states that it is a defence for a person charged with stirring up hatred to show that their actions were “reasonable.”It also references the right to freedom of expression in Article 10 of the European Convention on Human Rights, which includes protection for “ideas that offend, shock or disturb.”
To be convicted of a hate crime, “you have to be really threatening and really abusive, and there has to be reasonable assumption from others that that is the case,” said Ms Brown.
As well as the offence of stirring up hatred, the Hate Crime Act also consolidates the existing law on crimes which are “aggravated by prejudice.”
These are where an offender demonstrates malice or ill-will towards their victim based on a protected characteristic, which can be taken into account by a sheriff or judge with a longer sentence or a higher fine than would otherwise have been the case.For example, if an assailant punched someone in the face while also making a hateful comment about their age, that might be assault aggravated by age-related hatred.
This is the first time that age has been included in the list of protected characteristics for aggravated offences, a move welcomed by some campaign groups. It’s going to be a positive thing for the country,” said Adam Stachura of the charity Age Scotland.
Others are less enthusiastic.
Source: BBC
