Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Hate Crime and Public Order (Scotland) Act 2021

Type Act of the Scottish Parliament

Publication 2021-04-23

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

PART 1 — Aggravation of offences by prejudice

Aggravation of offences by prejudice

1

(1) An offence is aggravated by prejudice if—

(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).

(2) The characteristics are—

(a) age,

(b) disability,

(d) religion or, in the case of a social or cultural group, perceived religious affiliation,

(e) sexual orientation,

(f) transgender identity,

(g) variations in sex characteristics.

(3) It is immaterial whether or not the offender's malice and ill-will is also based (to any extent) on any other factor.

(4) Evidence from a single source is sufficient to prove that an offence is aggravated by prejudice.

(5) In this section—

“membership”, in relation to a group, includes association with members of that group,

“presumed” means presumed by the offender.

Consequences of aggravation by prejudice

2

(1) Subsection (2) applies where it is—

(a) libelled in an indictment, or specified in a complaint, that an offence is aggravated by prejudice, and

(b) proved that the offence is so aggravated.

(2) The court must—

(a) state on conviction—

(i) that the offence is aggravated by prejudice, and

(ii) the type of prejudice by which the offence is aggravated (by reference to one or more of the characteristics mentioned in section 1(2)),

(b) record the conviction in a way that shows—

(i) that the offence is aggravated by prejudice, and

(ii) the type of prejudice by which the offence is aggravated (by reference to one or more of the characteristics mentioned in section 1(2)),

(d) state—

(i) where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or

(ii) otherwise, the reasons for there being no such difference.

PART 2 — Offence of racially aggravated harassment

Racially aggravated harassment

3

(1) 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.

(2) 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.

(3) It is immaterial whether or not the offender's malice and ill-will is also based (to any extent) on any other factor.

(4) A course of conduct must involve conduct on at least two occasions.

(5) In this section—

“conduct” includes speech,

“harassment” of a person includes causing the person alarm or distress,

“membership”, in relation to a group, includes association with members of that group,

“presumed” means presumed by the offender.

(6) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), or

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

PART 3 — Offences relating to stirring up hatred

Offences of stirring up hatred

4

(1) 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.

(2) 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).

(3) The characteristics are—

(a) age,

(b) disability,

(d) sexual orientation,

(e) transgender identity,

(f) variations in sex characteristics.

(4) It is a defence for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable.

(5) For the purposes of subsection (4), in determining whether behaviour or communication was reasonable, 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, including the general principle that the right applies to the expression of information or ideas that offend, shock or disturb.

(6) For the purposes of subsection (4), it is shown that the behaviour or the communication of the material was, in the particular circumstances, reasonable if—

(a) evidence adduced is enough to raise an issue as to whether that is the case, and

(b) the prosecution does not prove beyond reasonable doubt that it is not the case.

(7) For the purposes of subsections (1)(a)(i) and (2)(a)(i), a person's behaviour—

(a) includes behaviour of any kind and, in particular, things that the person says, or otherwise communicates, as well as things that the person does,

(b) may consist of—

(i) a single act, or

(ii) a course of conduct.

(8) For the purposes of subsections (1)(a)(ii) and (2)(a)(ii), the ways in which a person may communicate material to another person are by—

(a) displaying, publishing or distributing the material,

(b) giving, sending, showing or playing the material to another person,

(9) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), or

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

Further provision relating to the offences

Powers of entry etc. with warrant

5

(1) A sheriff or justice of the peace may grant a warrant under this section authorising a constable to enter premises if the sheriff or justice of the peace is satisfied, by evidence on oath, that there are reasonable grounds for suspecting—

(a) that an offence under section 4 has been, or is being, committed at the premises, or

(b) that there is evidence at the premises of the commission of an offence under section 4.

(2) A warrant granted under this section remains in force for a period of 28 days beginning with the day on which it was granted.

(3) A warrant granted under this section may authorise a constable to—

(a) enter the premises by force if necessary,

(b) search the premises and any person found in the premises,

(c) seize and detain any material found on the premises, or on any person in the premises, if the constable has reasonable grounds for suspecting that it may provide evidence of the commission of an offence under section 4.

(4) A constable who is authorised by a warrant granted under this section to seize and detain material may, if the material is only capable of being looked at, read, watched or listened to (as the case may be) after conversion from data stored in another form, require that the material—

(a) be converted into such a form in a way which enables it to be taken away, or

(b) be produced in a form which is capable of being taken away and from which it can be readily converted.

(5) In this section—

(a) “constable” has the same meaning as in section 99(1) of the Police and Fire Reform (Scotland) Act 2012,

(b) “premises” means any place and includes any—

(i) land or building,

(ii) vehicle, vessel, trailer, aircraft or hovercraft,

(iii) tent or moveable structure.

Recording conviction for offence under section 4

6

Where a person is convicted of an offence under section 4, the court must—

(a) state on conviction, and

(b) record the conviction in a way that shows,

the characteristic (or characteristics) to which the offence relates (by reference to it being an offence under section 4(1) or by reference to one or more of the characteristics mentioned in section 4(3)).

Forfeiture and disposal of material to which offence relates

7

(1) Where a person is convicted of an offence under section 4—

(a) the court may order the forfeiture of any material to which the offence relates, and

(b) the court may order that any of the forfeited material be disposed of in such manner as the court may direct.

(2) An order made under subsection (1)(b) does not take effect until—

(a) if an appeal is brought against the conviction or sentence, after the appeal is finally decided or abandoned, or

(b) otherwise, after the expiry of the period within which an appeal against the conviction or sentence may be brought.

(3) For the purposes of subsection (2), the lodging of an application for a stated case or note of appeal against sentence is to be treated as the bringing of an appeal.

Individual culpability where organisation commits offence

8

(1) This section applies where—

(a) an offence under section 4 is committed by a relevant organisation, and

(b) the commission of the offence involves consent or connivance on the part of a responsible individual.

(2) The responsible individual (as well as the relevant organisation) commits the offence.

(3) For the purposes of this section—

(a) “relevant organisation” means an organisation listed in the first column of the table in subsection (4),

(b) “responsible individual” means, in relation to a relevant organisation—

(i) an individual falling within the corresponding entry in the second column of the table in subsection (4), or

(ii) an individual purporting to act in the capacity of an individual falling within the corresponding entry.

(4) The table is as follows—

*Relevant organisation*	*Individual*
company as mentioned in section 1 of the Companies Act 2006	director, manager, secretary or other similar officer
company as mentioned in section 1 of the Companies Act 2006	member, where the company's affairs are managed by its members
limited liability partnership	member
other partnership	partner
any other body or association	individual who is concerned in the management or control of its affairs

Protection of freedom of expression

9

For the purposes of section 4(2), behaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes—

(a) discussion or criticism of matters relating to—

(i) age,

(ii) disability,

(iii) sexual orientation,

(iv) transgender identity,

(v) variations in sex characteristics,

(b) 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,

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

Interpretation of Part 3

10

(1) This section applies for the interpretation of this Part.

(2) “European Convention on Human Rights” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950.

(3) “Material” means anything that is capable of being looked at, read, watched or listened to, either directly or after conversion from data stored in another form.

(4) References to an offence under a particular section include references to an offence of—

(a) attempting to commit an offence under that section,

(b) aiding, abetting, counselling, procuring or inciting the commission of an offence under that section,

PART 4 — Further provision relating to hate crime

The characteristics

Meaning of the characteristics

11

(1) This section applies for the interpretation of sections 1, 4 and 9.

(2) A reference to age includes a reference to an age range.

(3) A disability is a physical or mental impairment of any kind.

(4) For the purposes of subsection (3) (but without prejudice to its generality), a medical condition which has, has had, or may have a substantial or long-term effect, or is of a progressive nature, is to be regarded as amounting to an impairment.

(5) A group defined by reference to religion is a group of persons defined by reference to—

(a) religious belief or lack of religious belief,

(b) membership of or adherence to a church or religious organisation,

(d) participation in activities associated with such a culture or such traditions.

(6) A reference to sexual orientation is a reference to sexual orientation towards—

(a) persons of the same sex,

(b) persons of a different sex, or

(7) A person is a member of a group defined by reference to transgender identity if the person is—

(a) a female-to-male transgender person,

(b) a male-to-female transgender person,

(d) a person who cross-dresses,

and references to transgender identity are to be construed accordingly.

(8) A person is a member of a group defined by reference to variations in sex characteristics if the person is born with physical and biological sex characteristics which, taken as a whole, are neither—

(a) those typically associated with males, nor

(b) those typically associated with females,

and references to variations in sex characteristics are to be construed accordingly.

Power to add the characteristic of sex

12

(1) The Scottish Ministers may by regulations add the characteristic of sex to the list of characteristics in one or more of the following provisions—

(a) section 1(2),

(b) section 4(3),

(2) Regulations under this section may modify sections 14(3) and 15(4) by making provision about the information relating to the characteristic of sex which may require to be included in reports under those sections.

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