In a wide-ranging report published yesterday, judge Lord Bracadale recommended extending the list of statutory aggravations to include the sex and age of victims.
While he stopped short of proposing new offences for elder abuse and misogyny, the report’s proposals mean crimes shown to be motivated by age or gender are likely to attract harsher sentences when dealt with by the courts.
In total, Lord Bracadale made 22 recommendations include the expansion of stirring up hatred offences and the repeal of the current racial harassment law to allow all hate crime legislation to be combined in a single Act.
The report found no need to create new laws to deal with hate crime online and said no replacement was required for section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, the controversial legislation which was repealed by MSPs earlier this year.
Publishing his report, Lord Bracadale said: “I want to see a clear, consistent and easily understood scheme of hate crime legislation.
“The current scheme works well although I have suggested some ways in which it might be improved as well as extended.
“It involves what I call a baseline criminal offence, for example assault or threatening or abusive behaviour, aggravated by hostility towards a protected characteristic.”
He added: “I’m recommending the extension of current protected characteristics to include gender and age.
“In relation to gender, I noted there has been an increase in the harassment and abuse of women both in the physical world and online.
“And there has been a cultural shift in the sense that women are not now prepared to tolerate behaviour that they might have put up with in the past.”
He added that stirring up hatred is a “serious and insidious crime” and used the recent “punish a Muslim” campaign as an example.
He said: “In a civilised society people should be able to live together, respecting one another and treating one another fairly regardless of differences.
“Now of course, hate crime legislation on its own will not achieve that but a clear, well defined and implemented scheme does have a powerful contribution to make.”
Under Lord Bracadale’s proposals, if it is proved that an offence was motivated by hostility based on age, or the offender demonstrates hostility towards the victim based on age during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by age hostility.
While it is anticipated the aggravation is likely to relate to offences against the elderly, the victim could be any age.
The report said there was no need to replace section 1 of the Offensive Behaviour at Football Act, but it concluded there is currently “a gap in the law” when it comes to stirring up hatred offences apart from those relating to race.
Gillian Mawdsley, of the Law Society of Scotland, said: “It is critical that we consider whether Scotland has the right legislative protection in place to tackle hate crime wherever and whenever it happens. The review has been very timely given the incidence and publicity of crimes and offences motivated through hate.
“We support Lord Bracadale’s recommendations for a baseline offence and statutory aggravations. In our consultation response we called for all Scottish hate crime legislation to be consolidated and are pleased that this has been supported in the report.
“We think there are enormous benefits to be gained from having a clear set of rules and procedures. It will bring increased clarity alongside a better understanding and application of the law.
“If introduced, his recommendations will modernise the law and its language to make it appropriate to address the needs of the 21st century Scotland.”
Lord Bracadale also recommended amending current legislation to include the word “intersex” as a separate category rather than a sub-category of transgender identity.
And he said consideration should be given to removing outdated terms such as “transvestism” and “transsexualism” from any definition of transgender identity.
Tim Hopkins, director of the charity Equality Network, said: “We are pleased at the recommendation to update the existing law on hate crimes that target transgender people and those that target intersex people, recognising the difference.
“And we welcome the proposal for a new offence to deal with the stirring up of hatred through threatening or abusive conduct. This will fill a gap created by the repeal of the non-football related provisions of the Offensive Behaviour at Football Act. Changing the law is not the whole answer though; more needs to be done to further improve responses by police, prosecutors and courts, and to encourage people to report crimes to the police.”
Scottish Labour’s justice spokesman, Daniel Johnson, said: “This report brings forward a number of positive ways to tackle hate crime in Scotland.
“The findings provide a starting point for a robust and measured debate over how we as a society protect some of our most vulnerable friends and neighbours.
“Scottish Labour notes the concerns raised over the lack of a recommendation for a specific law against misogyny.
“Any law to tackle gender-based hatred must note the inescapable fact that almost all discrimination of this kind is perpetuated by men against women.
“Scottish Labour will thoroughly scrutinise legislation brought forward to parliament by SNP ministers in this area.”
Lord Bracadale has been chairing the independent review since January last year at the request of the Scottish Government, which has accepted Scotland’s hate crime laws should be brought into a single Act and has noted all the other recommendations, on which it plans to consult.
Minister for Community Safety Annabelle Ewing said: “The Scottish Government will use this report as a basis for wider consultation with communities and groups across the country on how to bring forward new legislation that is fit for the 21st century.”
A Scottish Government spokeswoman said Lord Bracadale’s recommendation for new “stirring up” offences would result in the “re-introduction and extension” of powers lost when the Offensive Behaviour at Football Act was repealed.