Humza Says You've Had a Bit Too Much to Think

Pic: A Force For Good campaigned against Humza Yousaf's Bill when it came before Holyrood in 2021.

The "Hate Crime and Public Order (Scotland) Act 2021" comes into law on 1st April, and is detailed on the UK Legislation website here.

It is the creation of the then Justice Secretary, Humza Yousaf, who opened his Bill to Public Consultation in 2020. A Force For Good contributed our suggestion for an extensive "Freedom of Speech" clause.

It was debated and passed on the 10th and 11th of March 2021 at Holyrood. A Force For Good was there to demonstrate against it and to make the case for freedom of speech. A report of our 2-man demo – during the height of a lockdown period – is published here and we recorded the "Free Speech Hall of Shame, and Fame" list of the MSPs who voted for and against it here.

After 3 years, it is to become law on 1 April 2024.

In this article, Alistair McConnachie, who has a degree in Scots Law, explains what it is about.

Firstly…

WHAT IS a "HATE CRIME"?

The Holyrood website definition says: "Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice."

The Crown Prosecution Service of England and Wales uses the following definition of a "Hate Crime":

"Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person's disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity."

There is no legal definition of hostility so we use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.

To summarise: a "Hate Crime" is a crime aggravated by hostility or prejudice, or perceived hostility or prejudice, against a victim with a legally-defined characteristic.

DISTINCTION between VIOLENT HATE CRIME and HATE SPEECH CRIME

When we consider the matter of "Hate Crimes", we should keep a distinction in our heads between violent crimes, and speech "crimes".

A violent Hate Crime could be a group of youths of one colour violently attacking a youth of another colour based on the colour of skin. That is a brutal crime, which is completely distinct from a "Hate Speech Crime" where someone's feelings may have been hurt!

The politicians, media, and legal profession tend to blur the distinction between such "Hate Crimes", when clearly there is a huge difference between crimes of hateful violence, and supposed "crimes" of "hateful speech". The two tend to be conflated. They tend to get thrown into the same pot.

So, let's keep that distinction in our heads.

WHAT IS "AGGRAVATION"?

Part 1 of Humza's Law details the definition of an Aggravated Offence.

To "aggravate" something, is to make it worse.

Burglary is stealing. Aggravated burglary is stealing with a weapon. The possession of the weapon makes it worse and is likely to result in a more severe sentence.

A racially aggravated offence is an offence which is considered to be made worse if the alleged offender demonstrates hostility towards the victim based on his membership of a racial group, or the victim's colour, nationality, ethnic or national origins.

The concept of "aggravation" – which enabled a harsher sentence for those convicted of crimes motivated by prejudice – was introduced for racial and religious incidents by the Crime and Disorder Act 1998 (Sec 28-32 for England and Wales, and Secs 33 and 96 for Scotland).

At the time, in 1998, there was considerable opposition to this approach. We reviewed some instances in our submission to the Scottish Parliament in 2020, entitled Free Speech For Scots.

However, it is a fact that violent crimes motivated by racial hatred do exist!

Twitter is awash with horrible videos and reports of racially-motivated violence!

These serious crimes of violence could accurately be termed "Hate Crimes" to the extent that it can be shown that the perpetrators are racially hateful towards the people they are attacking.

As we say, though, those sorts of serious violent crimes are of a completely different degree from "Hate Speech Crimes", even though the politicians, media and legal profession tend to conflate the two under the catch-all title of "Hate Crimes", as if they are both equally bad.

In defining "aggravation", Part 1, Sec 1, Para 3 of Humza's Law says: "It is immaterial whether or not the offender's malice and ill-will is also based (to any extent) on any other factor."

What this means is that, for example, if the alleged victim previously had a hostile relationship with the alleged offender, then that would not be an "excuse" for any threatening, abusive or insulting language which the offender might utter, or any prejudice which the offender might indicate towards the victim.

RACIALLY AGGRAVATED HARASSMENT

Part 2 of Humza's Law is related to "Racially Aggravated Harassment".

Harassment has long been a crime, and it requires a "course of conduct". That is, a pattern of behaviour over time. In this case it requires "conduct on at least two occasions" [Part 2, Sec 3, Para 4].

Hopefully, that is something that most people can avoid getting caught up in. However, we can see how a long-running argument between neighbours of a different race, could trap one party into the unfair accusation of "racially aggravated harassment".

"EXPRESSION OF PREJUDICE" as a CRIME in ITSELF

Once the idea that a violent crime could be aggravated by prejudice was set into law, the law then expanded to embrace the idea that the expression of prejudice itself – in certain circumstances – could be the specific crime.

That is, the expression of what might be called "prejudice" – even without any physical harm or loss – could, in certain circumstances, be the crime itself.

WHAT ARE THOSE CIRCUMSTANCES?

This is important to understand: The expression of supposed prejudice itself is not the crime. It becomes a crime when it is paired with the circumstance of an "intention to stir up hatred", or when it is "likely to stir up hatred".

This is detailed in Part 3 of Humza's Law.

Part 3, Sec 4, Paras 1-3 detail this specifically.

Para 1 relates to racially aggravated offences.

Para 1(a) requires the behaviour to be "threatening, abusive or insulting".

The concept of race is expanded in Para 1(b)(i) to refer also to "colour, nationality (including citizenship), or ethnic or national origins". It also refers to the intention "to stir up hatred". Sub para (b)(ii) refers to the likelihood of "hatred being stirred up".

Part 3, Sec 4, Para 2(b) expands the crime wider than race, and includes victims who have a "characteristic", mentioned in Para 3.

The crime in Para 2(a)(i) is a little different from the one described in Para 1 since the option that the behaviour can be "insulting" has been removed.

Furthermore, the notion that something is "likely to result in hatred being stirred up" has also been removed for the special characteristic people, and only the specific intention "to stir up hatred" is required as per Para 2(b).

If convicted you could potentially spend up to 7 years in jail, as per Part 3, Sec 4, Para 9(b).

Part 3, Sec 8 establishes criminal culpability for the whole organisation where a responsible individual in the organisation commits the "crime".

PROTECTION for FREEDOM of EXPRESSION

Part 3, Sec 4, Para 5 lists Article 10 of the European Convention of Human Rights as a general protection for freedom of expression on matters related to Sec 4.

Part 3, Sec 9 details a protection for "freedom of expression" on matters related specifically to Sec 4, Para 2 (the special "characteristics" issue) although not for Sec 4, Para 1 (the race issue).

The rest of Part 3 is about the power of the police, including powers of entry for Hate Crime on Hovercraft as per Sec 5, Para 5(b)(ii).

Part 4 is about definitions of "characteristics". Part 5 abolishes "the common law offence of blasphemy". Part 6 is "general provisions", and there are 2 Schedules, the first of which relates to "service providers" and the second of which is changes to previous Acts.

THE CONTROVERSY of "HATE SPEECH"

Why is "Hate Speech" a controversial concept?

The first is a Legal issue.

It is a "crime" which is difficult to pin down in Court because it depends upon subjective judgement. Furthermore, it can be contrary to the legal concept of "the guilty mind".

1. It requires us to consider what is, and is not, "malicious" or of "ill-will"? It requires us to consider what is "threatening" or "abusive" or "insulting" language? Often this can just be a matter of opinion. It is often likely to be a subjective judgement.

2. It requires us to consider whether the person "intended" thereby to stir up hatred. That then requires us to consider what "stirring up" means in any particular context, and indeed what "hatred" even is?

3. If we decide that the accused did not intend to stir up hatred, then the person can still be caught on the hook of whether the behaviour was "likely to stir up hatred". That is, was he "likely" to do something that he actually had absolutely no intention of doing!

Therefore, under this law, you can get convicted of a so-called crime, even though you do not possess a "guilty mind" – even though you did not intend to do what the court accuses you of, and of which it is convicting you!

This is contrary to the long established principle – in Scots Law – of "mens rea", which translates as "guilty mind".

At the end of the day, a lot of these judgements will come down to a subjective matter of opinion on what is "hatred", and what is "stirring up", and what is "intended" and what is "likely".

All of these things will differ from person to person, judge to judge, jury to jury. The crime can be very "fluid". It is very difficult to pin down. It depends almost entirely on the subjective opinions of the judge and jury.

Secondly, there is a Political objection.

Hate Speech Crime can be considered to be a legal concept intended deliberately for the political purpose of control, suppression and punishment of legitimate political debate.

This is because the fear of being accused of such a "crime" can stop people saying what needs to be said in order to do what needs to be done.

In that sense, the threat of a criminal conviction for "Hate Speech" can be used as a political tool to silence opinion. It can be used deliberately to suppress and criminalise legitimate political speech.

HUMZA could FALL FOUL of his OWN LAW – specifically Sec 4, Para 1.

Remember Humza Yousaf's infamous "white speech" which he delivered when he was Justice Secretary. That was when he was complaining about all the white people in positions of power, in Scotland, of all places!

Well, that could certainly be considered, by some, to be "insulting", as per Sec 4, Para 1(a)(ii).

The group in this case being "defined by reference to race, colour, nationality, or ethnic or national origins" and otherwise known as the White Scottish, as per Sec 4, Para 1(b)(i).

And, while he did not have any intention "to stir up hatred", he could theoretically be accused under Sec 4, Para 1(b)(ii) where "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."

Now, while we're being tongue in cheek, we're also serious! We're demonstrating the subjective, not objective, nature of the matter!

APPENDIX 1

POLICE are RECORDING "NON-CRIME HATE INCIDENTS"

A "Non-crime Hate Incident" is an "incident" which could be said to involve prejudice against a person who is a member, or perceived to be a member, of a "group being defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins", or a group which possesses a protected "characteristic" as defined in Part 3, Sec 4, Paras 1-3 of the "Hate Crime and Public Order (Scotland) Act 2021" but which does not meet the threshold to be considered a "crime".

That is, it is an incident which is not attached to an "intention to stir up hatred" or a "likelihood of hatred being stirring up", as explained above.

These "incidents" are noted anyway as "Non-crime Hate Incidents", even if it is just one person's word against another, and regardless of how trivial the incident.

This is unfair, and potentially harmful, to wrongfully accused people. It is also a waste of police time.

However, the Scottish Executive, has spent the last 3 years embedding this Act throughout Scottish "civil society" to the point where it has set up a long list of "Hate Crime Third Party Reporting Centres" throughout Scotland!

You can find your local "Hate Crime Third Party Reporting Centre" on the Police Scotland page here.

Article from Scottish Daily Mail, 14-3-24: