What is Scotland’s Hate Crime law and how does it work?

Police Scotland used a cartoon "hate monster" in a public information campaign

Scotland's new hate crime law came into force on 1 April.

It deals with various issues but the two main ones are stirring up hatred and offences aggravated by prejudice.

Stirring up hatred

The new law creates a new crime of "stirring up hatred" relating to protected characteristics.

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

(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 (sometimes known as being intersex)

So, the material and behaviour must be BOTH threatening or abusive AND intended to stir up hatred.

It also includes a crime of stirring up hatred based on race, colour, nationality (including citizenship), or ethnic or national origins. This was already illegal in Scotland, England and Wales under the Public Order Act 1986 but, in an attempt to streamline the criminal law in Scotland, is now part of the Hate Crime Act.

The bar for this offence remains 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".

(In England and Wales stirring up hatred over race, religion or sexual orientation by threatening behaviour remains illegal although, again, the racial hatred law has a lower bar than the other protected characteristics.)

The maximum sentence for stirring up hatred is seven years imprisonment.

Aggravated offences

The Hate Crime Act also consolidates the existing law in Scotland 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.

The protected characteristics are the same as for the stirring up hatred offences (listed above).

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.

Free speech

Supporters of the new 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".

Finally, the law also contains a caveat that 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 - age, disability, sexual orientation, transgender identity, variations in sex characteristics.

For religion, the law is slightly different.

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 relating to, or expressions of antipathy, dislike, ridicule or insult towards -

(i) religion, whether religions generally or a particular religion,

(ii) religious beliefs or practices, whether religious beliefs or practices generally or a particular religious belief or practice,

(iii) the position of not holding religious beliefs, whether religious beliefs generally or a particular religious belief,

(c) proselytising, or

(d) urging of persons to cease practising their religions.

This is important, say some campaigners, because it extends more protection to criticism of religion that it does to, say, criticism of some transgender activism.