Lord Advocate’s guidelines: Offences aggravated or motivated by prejudice

Please note: For offences that took place before 1 April 2024, you will need to use the relevant previous legislation.

The Hate Crime and Public Order (Scotland) Act 2021, ‘the Act’, comes into force on 1 April 2024 and consolidates all of the relevant hate crime laws into one place, and updates and extends some of these laws.  The Act is not retrospective and offending that predates 1 April 2024 should still be reported under previous legislation.

The Act outlines 7 protected characteristics that can be attached to any substantive common law or statutory offence.  For the purposes of investigating such incidents, the Lord Advocate directs that the following definition be used:

“An incident is aggravated by prejudice if it is perceived to be aggravated by prejudice by the victim or any other person”.

The Lord Advocate therefore directs that, in the investigation of crime, police officers must ascertain the perception of the victim and witnesses as to the motive for the crime.  This must be fully investigated and clearly recorded in police reports to the Procurator Fiscal.  Leading questions should not be used and the sort of questions which could be used includes:

“How do you feel about what happened?

or

“What do you think was the motive behind this incident?”

The Procurator Fiscal should always be advised in police reports of the perception of the victim and witnesses as to motive.

If one of these protected characteristics is perceived to be a factor by the victim or witnesses, this should be investigated, and evidence recorded.  Police officers should bear in mind that victims of hate crime may be reluctant to express their fears or beliefs, including their belief that an incident has been motivated by prejudice, and that victims may often be doing so against a background of previous unreported conduct.  It will be necessary for officers in such cases to make every effort to ascertain the true perception of the victim as to the motive for the crime.

The victim’s belief alone that the offence was aggravated by prejudice does not justify the charging of a statutory aggravation, but if there is evidence to support that opinion, whether from one or more sources (including the victim) that should be reflected in the draft charge presented to the Procurator Fiscal by including the relevant aggravation:

• Section 1(2)(a) Hate Crime and Public Order (Scotland) Act 2021 in relation to prejudice relating to age;
• Section 1(2)(b) Hate Crime and Public Order (Scotland) Act 2021 in relation to prejudice relating to disability;
• Section 1(2)(c) Hate Crime and Public Order (Scotland) Act 2021 in relation to prejudice relating to race, colour, nationality (including citizenship), ethnic or national origins;
• Section 1(2)(d) Hate Crime and Public Order (Scotland) Act 2021 in relation to prejudice relating to religion or perceived religious affiliation;
• Section 1(2)(e) Hate Crime and Public Order (Scotland) Act 2021 in relation to prejudice relating to sexual orientation;
• Section 1(2)(f) Hate Crime and Public Order (Scotland) Act 2021 in relation to prejudice relating to transgender identity;
• Section 1(2)(g) Hate Crime and Public Order (Scotland) Act 2021 in relation to prejudice relating to variations in sex characteristics;

This evidence will most frequently come from words spoken by the accused, but the important point is that there is evidence, not simply a belief on the part of the victim.

Section 1(1) of the Act sets out when an offence is aggravated by prejudice. There are two types of situation where it can arise:

• (a) where there is a specific victim of the offence—

(i) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates malice and ill-will towards the victim, and

(ii) the malice and ill-will is based on the victim’s membership or presumed membership of a group defined by reference to a characteristic mentioned in subsection (2), or

• (b) whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by malice and ill-will towards a group of persons based on the group being defined by reference to a characteristic mentioned in subsection (2)

This means that the aggravation can be applied even in cases where the malice or ill-will is expressed towards a wider group as a whole, without the need for a specific or individual victim to have been identified.

An offence can be aggravated by prejudice under section 1(1)(a) or (b) in respect of more than one characteristic.  For example, an assault may be aggravated by both race and religion.  Evidence of each separate aggravation would be required.

In all aggravations, “presumed” means presumed by the offender.  Thus, it is irrelevant whether the victim is, for example, of a particular religious group, disabled, homosexual or transgender.  It is the motivation of the accused which is the relevant factor.

When investigating cases of racist crime, police officers should be sure to ascertain whether this is an isolated incident or whether the victim has been subject to a course of racial harassment by the accused.  If there is a course of racial harassment, the relevant offence would be racially aggravated harassment under part 2 of the Act.

Section 3(1) of the Act sets out when an offence of racially aggravated harassment is committed. The situations it can arise are as follows:

A person commits an offence if the person—

• (a) pursues a racially aggravated course of conduct which amounts to harassment of another person and—

(i) is intended to amount to harassment of that person, or

(ii) occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person, or

• (b) acts in a manner which is racially aggravated and which causes, or is intended to cause, another person alarm or distress.

Section 3(4) of the Act outlines that a course of conduct must involve conduct on at least two occasions and defines same under Section 3(2) of the Act:

A course of conduct or an action is racially aggravated if—

• (a) at the time of carrying out the course of conduct or action, or immediately before or after doing so—

(i) the offender demonstrates malice and ill-will towards the victim, and

(ii) the malice and ill-will is based on the victim’s membership or presumed membership of a group defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or

• (b) the course of conduct or action is motivated (wholly or partly) by malice
• and ill-will towards a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins.

As with the investigation of offences aggravated by prejudice, the Lord Advocate directs that, in the investigation of crime, police officers must ascertain the perception of the victim and witnesses as to the motive for the crime.

The Act creates new offences of stirring up hatred.  Section 4(1) of the Act relates to the offence of stirring up racial hatred and Section 4(2) of the Act relates to the offence of stirring up hatred relating to the other 6 protected characteristics, namely, age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics.

Section 4(1) of the Act sets out when an offence of stirring up racial hatred is committed.

A person commits an offence if—

• (a) the person—

(i) behaves in a manner that a reasonable person would consider to be threatening, abusive or insulting, or

(ii) communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting, and

• (b) either—

(i) in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or

(ii) a reasonable person would consider the behaviour or the communication of the material to be likely to result in hatred being stirred up against such a group.

Section 4(2) of the Act sets out when an offence of stirring up hatred relating to age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics is committed.

 A person commits an offence if—

• (a) the person—

(i) behaves in a manner that a reasonable person would consider to be threatening or abusive, or

(ii) communicates to another person material that a reasonable person would consider to be threatening or abusive, and

• (b) in doing so, the person intends to stir up hatred against a group of persons based on the group being defined by reference to a characteristic mentioned
• in subsection (3).

Both offences require that the behaviour or communication of material is such which a reasonable person would consider threatening or abusive, with the stirring up racial hatred offence containing additional provision to capture behaviour or communication of material which a reasonable person would consider to be insulting.  

In addition to this, the stirring up hatred offence in relation to age, disability, religion, sexual orientation, transgender identity, and variations in sex characteristics require that the accused person intended to stir up hatred on the basis of these protected characteristics.

The racial stirring up hatred offence requires that the accused person intended to stir up hatred on the basis of race, colour, nationality (including citizenship), or ethnic or national origins or that a reasonable person would consider the behaviour or communication likely to result in hate being stirring up against such a group.

Police officers should be clear that with regard to section 4(1) and 4(2) offences, both elements (a) and (b) are proved when reporting cases of this kind.

Section 4(4) provides that it is a defence to an offence under section 4(1) or (2) for the accused to show that the behaviour or the communication was, in the particular circumstances, reasonable.  This may apply where, for example, a person communicates a threat of serious violence made by someone else for the purpose of alerting a journalist or a journalist reporting a threat of serious violence made by another person.

Section 4(8) defines the different ways in which a person may communicate material to another person for the purposes of an offence under section 4. The different ways in which a person may communicate material to another person are by:

• Displaying, publishing or distributing the material e.g. on a sign; on the internet through websites, blogs, podcasts, social media etc., either directly, or by forwarding or repeating material that originates from a third party; through printed media such as magazine publications or leaflets, etc.
• Giving, sending, showing or playing the material to another person e.g. through online streaming, by email, playing a video, through public performance of a play, etc.
• Making the material available to another person in any way e.g. through the spoken word, the written word, electronic communications, etc. either directly (as the originator of the material), or by forwarding or repeating the material.

Police officers are reminded that the Act specifically distinguishes between offending of this kind and the protection of freedom of expression.  Each case will be established on the individual facts and circumstances, but examples are provided of what would not constitute threatening and abusive under section 9.  For instance, simple discussion or criticism of matters relating to a protected characteristic is not sufficient.

The Lord Advocate directs that officers have regard to the Lord Advocate’s guidelines: Liberation by the police when reporting cases where offences appear to have been aggravated by prejudice.  A copy of those guidelines can be found here.

As with all crime, when reporting offences that appear to be aggravated by prejudice, police officers should include details in the standard prosecution report of the impact of the crime on the victim.  This should include information such as:

• whether the victim is in a state of fear due to the crime;
• whether the victim is considering moving home or business due to the nature of the crime;
• whether there is any impact on the victim’s family or protected community as a result of the crime;
• whether their protected characteristic(s) are known to their family or any other persons, including the accused(s);
• Ask the person concerned how they wish to be addressed e.g. personal pronouns, and make sure this is clearly noted within the report.
• Whether there should be consideration of seeking a Non-Harassment Order and provide victim’s views on same.