Judge calls for law to cover age hate crime
● Report seeks to expand offences linked to stirring up hatred ● Calls for a ‘clear, consistent and easily understood scheme’
A judge has called for offences motivated by a victim’s age or gender to be classed as hate crimes.
In a major review of existing legislation, Lord Bracadale said the list of statutory aggravations should be extended to include sex and age, but stopped short of proposing new offences.
The judge made a total of 22 recommendations.
Offences motivated by hostility to a person’s age or gender should be considered hate crimes according to a major review of existing legislation.
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Behaviour at Football and Threatening Communications (Scotland) Act 2012, the controversial legislation which was repealed by MSPS earlier this year.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 w ha ti 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.”
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: “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.”
Lord Bracadale also recommended amending current legislation to include the word “intersex” as a separate category rather than a sub-category 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.
“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 for-
“The findings provide a starting point for a debate over how we as a society protect some of our most vulnerable people” TIM HOPKINS Equality Network
ward 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.”
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.”
In 1967, in a speech at Newcastle University, Dr Martin Luther King said: “While the law may not change the hearts of men, it does change the habits of men if it is vigorously enforced, and through changes in habits, pretty soon attitudinal changes will take place and even the heart may be changed in the process.” Less than five months later, Dr King was shot dead by a racist escaped prison inmate in one of the world’s most notorious hate crimes.
In a report published yesterday, the Scottish judge Lord Bracadale quoted Dr King’s words as he laid out plans to reform legislation designed to tackle the “serious and insidious” stirring up of hatred against different groups of people.
Currently the law covers a grim list of prejudices based on race, religion, disability, sexual orientation and transgender identity. To those five, Lord Bracadale suggested it was time to add gender and age.
Given the tidal wave of revelations about sexual harassment and violence against women prompted by the Metoo movement, the former category is clearly long overdue and uncontroversial. Nicola Sturgeon has warned the level of abuse that she and other leading female figures have received, particularly on social media, could discourage other women from going into politics. So, in addition to being a crime against the individual victims, it is also a crime against democracy.
But the idea that age should now be included will take many by surprise. This is a list that reflects the groups that an overly large minority of Scots appear to gain pleasure from hating and every prejudice on it shames Scotland. To learn that elderly people should now be protected by the law in a similar way – in the opinion of a senior judge – represents a new low. Elder abuse ranges from neglect and dehumanising treatment in care homes to breach of financial trust, bogus workmen and straightforward violence.
Some will protest that “morality cannot be legislated”, as Dr King admitted was true in his 1967 speech. But he went on to argue that while the law “cannot change the heart… it can restrain the heartless. It may be true that the law cannot make a man love me but it can restrain him from lynching me; and I think that is pretty important also”.
If elder abuse has become so prevalent that it should be treated as a hate crime, we perhaps must consider whether Scotland has become in part a heartless society.