Hate Crime and Public Order (Scotland) Act 2021

‘An argument occurred on Coldstream Bridge’….a post about the Scottish legislation intended to target malice and ill-will.

Perhaps you really need a Scottish lawyer to walk you through the Hate Crime and Public Order (Scotland) Act 2021, an astonishing piece of legislation. Clearly I am not he (or should I say ‘they’) and can only examine it from an English lawyer’s perspective. But, like many commentators, I am currently far from happy about what I read.

The Act was passed by the Scottish Parliament and only enforceable to the Scottish town of Coldsteam, south of which we English allow prosecutors to apply for an uplift in sentence under the Crime and Disorder Act 1998 and section 66 of the Sentencing Act 2020.

Whilst the English legislation targets ‘hostility’ as an aggravating circumstance when it comes to determining the level of seriousness and sentence, the Scottish Act concentrates on ‘malice or ill-will’ as essential elements of the crime.

I found myself fascinated to know the difference between the meaning of ‘hostility’ and ‘malice or ill-will’. Apparently, ‘malice’ implies a deep-seated often unexplainable desire to see another suffer and ‘ill-will’ implies a feeling of antipathy or limited duration. These concepts were apparently considered at length by Lord Bracadale and the Scottish Justice Directorate who threw 3,255 words in an attempt at clarity. Hostility, on the other hand, undefined in the English legislation, appears to signify that a person is unfriendly to a type or specific group, or shows that they do not like something about them.

To my simple mind, the difference is that the Scottish legislation makes the motivation the crime, whereas in England motivation becomes a factor in punishment.

Courts have always attempted to look into the souls of offenders, but as a libertarian by instinct I am concerned that courts should be required to focus too much on the issue of ‘intention’ in order to determine guilt – to the detriment of judging the real issue – the act.

Now I am sensing that this constitutes a most challenging post, for me as a thinker and writer, and you as a thinking reader. I should add that I am ready to be corrected by those that understand the issue better than me. But from a point of view based on many years of practice as a lawyer, this Scottish legislation is an undesirable development for both Scotland and the whole of the UK.

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