Part 4 – Further provision relating to hate crime
The characteristics
Section 11 – Meaning of the characteristics
67.Section 11 sets out further provision which is relevant to the interpretation of the characteristics listed in sections 1(2), 4(3) and 9.
68.Section 11(2) provides that a reference to “age” includes a reference to an age range. This means that, for example, an offence might be aggravated by prejudice under section 1 based on malice and ill-will towards “older people” or “adolescents” rather than the victim’s specific age.
69.Section 11(3) and (4) provides that “disability” means a physical or mental impairment of any kind, and includes a medical condition which has, has had, or may have a substantial or long-term effect, or is of a progressive nature.
70.Section 11(5) defines what is meant by a “group defined by reference to religion”. The meaning is the same as the definition of “religious group” in section 74 of the Criminal Justice (Scotland) Act 2003, which is repealed as a consequence of this legislation (see section 18 and paragraph 4 of schedule 2).
71.Section 11(6) provides that a reference to sexual orientation is a reference to sexual orientation towards persons of the same sex, persons of a different sex or both persons of the same sex and persons of a different sex.
72.Section 11(7) defines what is meant by “transgender identity”. This definition does not only include people with a Gender Recognition Certificate or who have undergone, are undergoing, (or propose to undergo) medical or surgical interventions, but includes people whose gender identities are different from their sex at birth. This includes those who identify as male, but were registered as female at birth, those who identify as female but were registered as male at birth, non-binary people and cross-dressing people.
73.Section 11(8) defines what is meant by “variations in sex characteristics”. The existing definition of “transgender identity” in section 2 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 includes “intersexuality” (section 2 is repealed by section 18 and paragraph 5 of schedule 2). It is now recognised that intersexuality (or a person being born with physical or biological variations in sex characteristics) is separate to a person’s transgender identity. The definition of “variations in sex characteristics” includes people that are born with characteristics not typically associated with males or females. There is a variety of terminology used with reference to variations of sex characteristics and intersex status. For example, some people prefer to use the term “differences in sex development” and some prefer to simply describe their specific variation.
Section 12 – Power to add the characteristic of sex
74.Section 12 provides for a power to make regulations adding the characteristic of sex to one or more of the lists of characteristics set out in sections 1(2), 4(3) and 9(a). Adding the characteristic of sex to the lists in section 1(2) and/or 4(3) would mean, respectively, that an offence can be aggravated by prejudice under section 1 in respect of sex and/or a person’s conduct may amount to an offence relating to stirring up hatred under section 4(2) in respect of that characteristic. Adding the characteristic of sex to the list in section 9(a) would mean that, for the purposes of section 4(2), behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to sex.
75.Section 12(2) provides that regulations under section 12(1) may modify sections 14(3) and 15(4) by making provision about the information relating to the characteristic of sex which may require to be included in reports on hate crime convictions and hate crime recorded by the police.
76.Section 12(3) provides that regulations made under section 12(1) may modify section 11 by adding interpretative provision relating to the characteristic of sex.
77.Section 12(4) provides that the power to make regulations includes power to make incidental, supplementary, consequential, transitional, transitory or saving provision, that different provision can be made for different purposes, and that regulations made under subsection (1) are subject to the affirmative procedure (but see paragraph 78, which explains the effect of section 12(5)).
78.Section 12(5) provides that, before laying a draft instrument containing regulations under section 12 before the Scottish Parliament, the Scottish Ministers must lay a proposed draft of the regulations before the Parliament. The Scottish Ministers must have regard to any representations that are made to them within 40 days of laying the proposed draft, and make any changes to the draft instrument that they consider appropriate.
Providers of information society services
Section 13 and schedule 1 – Provision in relation to providers of information society services
79.Section 13 introduces schedule 1, which makes further provision about offences under sections 3 and 4 in relation to providers of information society services.
80.Paragraph 1 of schedule 1 sets out the conditions under which service providers may be exempted from liability under the offences in section 3 and 4 where acting as “mere conduits” for the transmission of, or provision of access to, information. This means that, provided the conditions in paragraph 1 are met, a business providing access to the internet (e.g. a home internet service provider) is exempted from liability if the person using their service commits an offence of racially aggravated harassment or stirring up hatred while making use of the internet.
81.Paragraph 2 of schedule 1 sets out the conditions under which service providers may be exempted from liability for “caching” information, that is, for the automatic, intermediate and temporary storage of information. This means that when an internet service provider automatically makes and “caches” a local copy of a file accessed by a user of its service (which is done in order to provide a more efficient service) it is not criminally liable in the event that the information consists of material relating to racially aggravated conduct which constitutes an offence under section 3, or relevant behaviour or material which is intended (or likely in the case of an offence under section 4(1)) to stir up hatred in terms of section 4, provided the conditions in paragraph 2 are met.
82.Paragraph 3 of schedule 1 sets out the conditions under which service providers may be exempted from liability for “hosting” information, that is, storing information at the request of a recipient of the service. For example, if a person uses a social network to post racially abusive or anti-religious material, inciting hatred against a racial or religious group, then, provided the conditions in paragraph 3 are met, the social network is exempt from criminal liability.
83.Paragraph 4 of schedule 1 defines certain terms used in schedule 1.
Reports relating to hate crime
Section 14 – Publication of reports on hate crime convictions
84.Section 14 places a duty on the Scottish Ministers to publish reports, on an annual basis, on convictions for offences aggravated by prejudice within the meaning of section 1 of the Act, and offences under the Act. The reports must include information about offences under section 3 or 4(1) (which relate to the characteristic of race, colour, nationality (including citizenship), or ethnic or national origins), about the characteristics to which offences under section 4(2) relate and about the type of prejudice by which offences aggravated by prejudice within the meaning of section 1 were aggravated.
85.Subsection (3) requires that the Scottish Ministers must take reasonable steps to establish whether supplementary information can be provided about any subgroups to which the offences relates, as set out in paragraph (a). If they establish that any such supplementary information can be provided, they must take reasonable steps to obtain it and include it in the report.
86.Subsection (4) provides that these reports must not include information which is capable of identifying an individual in relation to any of the reported matters.
87.Subsection (5) provides that the report may be in any form that the Scottish Ministers consider appropriate, and in particular may be part of another document. This would allow for reports under section 14 and section 15 to be combined.
Section 15 – Publication of reports by police on recorded hate crime
88.Section 15 places a duty on the Scottish Ministers to publish reports on police recorded hate crime on an annual basis. The Chief Constable of the Police Service of Scotland must provide the information that the Scottish Ministers require to be able to comply with this duty.
89.Subsection (2) states that the report should be based on records made by the Police Service of all offences aggravated by prejudice (within the meaning of section 1 of the Act) and all offences under the Act. This ensures that the report will cover all hate crimes which are reported to and recorded by the Police Service, not only those which ultimately result in prosecution.
90.Subsection (3) requires that, where this detail has been recorded, the report includes the age, sex, and ethnic or national origins of both the person recorded as being the victim and the person recorded as being the perpetrator. It does not place a duty on the Police Service to collect this information, but requires the Scottish Ministers to include this information in the report where it has been recorded.
91.Subsection (4) provides that the report must include (to the extent that these details have been recorded):
the particular characteristic (from the list in section 1(2) or 4(3) of the Act) which is recorded as being targeted;
where the characteristic is age, the particular age or age range recorded as being targeted;
where the characteristic is disability, the particular type of disability recorded as being targeted, including whether it is a physical or mental impairment;
where the characteristic is race (or related characteristics), the particular race (or related characteristic) recorded as being targeted;
where the characteristic is religion or, in the case of a social or cultural group, perceived religious affiliation, the particular religion (including lack of religious belief) or religious affiliation recorded as being targeted;
where the characteristic is sexual orientation, the particular sexual orientation recorded as being targeted; and
where the characteristic is transgender identity, the particular transgender identity recorded as being targeted.
92.Subsection (5) provides that these reports must not include information which is capable of identifying an individual in relation to any of the reported matters.
93.Subsection (6) provides that the report may be in any form that the Scottish Ministers consider appropriate, and in particular may be part of another document. This would enable these reports to be combined with, for example, reports under section 14.
94.Subsection (7) defines “Police Service” and “reporting year” for the purposes of section 15.
