The Hate Crime and Public Order (Scotland) Act 2021 has caused quite a stir following its commencement.

 

As many predicted, police have been inundated with thousands of complaints against particular individuals whose contributions to a topic of debate - no doubt reasoned and made in good faith - have nevertheless resulted in others reporting them to the police. 

 

Although the police have thus far adopted a temperate approach to the thousands of reports about an internationally renowned author and First Minister, many wonder if the same tact will apply to those in a different weight class. The wave of complaints about those individuals perhaps demonstrates the extent to which the legislation has been weaponised to target those of an opposing view.

 

The concern is the extent to which engaging in lively discourse may leave someone susceptible to a complaint to the police by someone who simply holds an opposing view. What is more, the policy of the police to maintain data where no crime has been established-which are classed as "non-crime hate matters"-naturally leaves individuals questioning the scope of the Act.

 

Many observed that much of what is contained in the 2021 Act is already embedded in other Acts of Parliament. The general concept of aggravation of offences is not new.

 

Whilst the 2021 Act creates the offence of stirring up hatred, some of the language in section 4 is familiar. For example, section 4 of the 2021 Act refers to an offence where a person behaves in a manner that a reasonable person would consider threatening or abusive. Similar to behaviour referred to in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Likewise, section 4 also refers to an offence where a person communicates in a way that is threatening or abusive. Similar to the behaviour referred to in section 127 of the Communications Act 2003.

 

What is concerning is the inclusion of the word "insulting" (in addition to the requirement that conduct or communication must be threatening or abusive). An insult is personal to the honour of the individual on the receiving end of such a comment. That person's offence may not however be shared by the reasonable person. Some will point to the inclusion of the reasonable person's perspective as a protection to those affected by complaints from the hyper-sensitive. However, the possibility of reasonableness as understood by members of the public and the reasonableness that is pushed by the courts may be two different things.

 

Section 4 then requires that any such conduct or communication must intend to stir up hatred against one of the groups defined in the statute. Alternatively, a reasonable person would consider such behaviour to be likely to stir up hatred against such a group.

 

In Section 4(5) it is said that "particular regard" must be had to the importance of the right to freedom of expression by virtue of Article 10 of the European Convention on Human Rights in the determination of what is (or is not) reasonable. The Crown is bound to argue that Article 10 is qualified by limitations such as the duty to behave responsibly and respect the rights of others.

 

Some say that the legislation will result in thousands of reports to police that will not likely see the light of day in court. In opposition to this view, others believe, this politically charged, partisan legislation will likely result in a raft of summary prosecutions. As such, the inexperienced, office manual approach to summary prosecutions that prevails in most courts will likely result in a whole host of behaviours which - on a common sense view - ought not to be anywhere near a criminal court, progressing through the system to the point where the individual is at the peril of the Sheriff's interpretation of what is reasonable or unreasonable.