Ignore the falsehoods, the Hate Crime Act has plenty safeguards

“Very good. What day is it due to come into force?”

“April 1.”

It’s around this point in the ­conversation that the Cabinet Secretary’s political ­antennae ought to have begun vibrating ­energetically. Urgent demands for officials to select literally any other day on the ­calendar should have begun forming on their lips.

But objection, it seems, there came none – and the Scottish Government is now ­committed to bringing this controversial set of proposals into force on April Fool’s Day.

Paranoid people sometimes suggest the SNP have wholly captured the civil ­service. This PR coup alone suggests dissident ­forces with a sense of humour are still alive and at work in the Scottish Government’s justice division.

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I’m not a highly remunerated communications professional – I’m no master of spin – but you might think the silly optics of this decision would have occurred to one or two of the legion of SPADs how clustered around the Scottish cabinet.

But apparently not.

When someone presents you with a tempting opportunity to make a fool of yourself, in general, it’s the wiser course to decline to step into the proffered cowpat. But here we are, up to our ankles in it.

All of which is rather irritating – as it has yet again emboldened the many folk in Scottish political life who are having a rare old time peddling fiction about what’s actually in the Hate Crime Act and painting dystopian pictures about the new and terrifying world of repression it will create.

Telling inflammatory lies about this ­legislation is back in fashion. And what’s ­curious is it is generally critics of these ­proposals who are most determined to ­pretend the Act says things it doesn’t say and criminalises behaviour it doesn’t ­criminalise.

There are – I think reasonable – anxieties that the legislation could be weaponised by frivolous complaints about conduct the Act isn’t aimed at criminalising. It’s essential that police officers handling complaints have a thorough sense of the strength of the free expression protections written into the proposals, and prosecutors too.

But surely the best way to avoid that happening is making it clear to people what the Act does and does not say, rather than trying to convince your social media enemies to report you to the cops come April 1. It should be in none of our interests for this prophecy to become true.

That the legislation is getting bad press now is entirely in keeping with its history. When the bill was first ­introduced in 2020, the Scottish Government expressed astonishing naïveté about the firestorm of controversy it would inevitably create.

MSPs deserve credit on a cross-party basis for their work on fixing up the bill. Having contributed in a small way to securing these meaningful improvements, I’m not prepared to pretend they haven’t happened or to indulge folk who’d rather object to what they imagine the legislation says rather than its actual content.

Let’s come down to brass tacks. The first part of the legislation codifies how crimes can be aggravated by prejudice, the second consolidates new offences of “stirring up hatred” against minority groups.

Take aggravators first. We’ve had ­aggravators on the law books for decades. Before, they were scattered all over the Scottish statute book piecemeal – which is why Lord Bracadale recommended codification was needed.

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Aggravators don’t create any new ­offences or make any conduct which is currently legal illegal. As the name ­suggests, they’re attached to existing crimes like assault, vandalism or breach of the peace – are recorded, and reflected in sentencing.

Contrary to what’s been asserted last week, the Act does not say that offences are aggravated by hatred just because the victim feels that way.

For an aggravation to be charged, Scottish prosecutors will have to demonstrate that “at the time of committing the offence, or immediately before or after doing so, the offender demonstrates malice and ill-will towards the victim” based on their age, disability, race, sexual orientation or transgender identity. Under the old and new law, this will almost always be based on what the perpetrator said.

I don’t know about you, but if a knuckle-dragging bigot spits on a priest while ­gobbing up anti-Irish and anti-Catholic slurs, I have no problem with ­classifying that as a hate crime. If you daub a ­synagogue in antisemitic graffiti, most folk wouldn’t see it as state overreach to ­classify that offence as aggravated by ­prejudice.

And if white ­nationalists descend on ­communities distributing ­leaflets for ­“punish a Muslim day”, I’ve no issue with the ­police investigating and ­executing ­warrants against them for it. Describing ­provisions like this as “­madness” is just lazy sloganising.

“Stirring up” offences have also been on the British state book for decades – and they’re rightly controversial as they do criminalise what people say. These ­provisions are seldom used. Reflecting these experiences, the Scottish version of these offences created by the Act are also unlikely to feature daily in the Sheriff Court’s diet of work – because the new hate crimes are much more difficult to prove than most criminal offences which are already on the statute book.

To convict anyone of the new “stirring up” offences, prosecutors must prove the following beyond reasonable doubt. First, would a reasonable person think what you’ve said or done is threatening or ­abusive? Did you deliberately ­intend to stir up hatred against a minority group? Unlike most other offences, being reckless isn’t enough. The complainer’s subjective perceptions of your intentions – again – do not determine your criminal liability under the legislation, and it is flatly ­untrue to suggest otherwise.

Then there are the defences. Would a reasonable person conclude what you’ve said or done is reasonable in all the ­circumstances? If so, you have a ­complete defence. Law enforcers will have to factor this into their investigations and ­charging decisions. The Act gives them a strong steer, telling police and courts to have “particular regard” for freedom of ­expression, “including the general ­principle that the right applies to the ­expression of information or ideas that ­offend, shock or disturb”.

At this stage, newbies to legislation will often object to “reasonableness” being written into the law – but this isn’t new either. All over the law – from the defences of self-defence and provocation to existing crimes – decision-makers are asked to consider what’s reasonable in the facts and circumstances before them.

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As any criminal lawyer can tell you, there are already offences on the statute book which are considerably easier to prove than this, which have none of the defences we find in the new hate crime framework, and which represent much more credible threats to freedom of ­expression.

Take, for example, section 127 of the Communications Act 2003. It’s been in force for 20 years now. Under its ­provisions, you can find yourself arrested and up in court if you send a “grossly ­offensive” message online. There’s no steer from parliament to judges and ­juries about the critical importance of free speech. There’s no requirement to demonstrate intention to stir up hatred against a whole minority. There’s no explicit ­reasonableness defence either. If you want to make frivolous complaints about what someone’s said on the internet, the 2003 Act already gives you everything you need and more.

Philosophically, you might disagree with the concept of hate crime. You might argue an assault is an assault, a murder is a murder – and it shouldn’t matter why someone committed it when it comes to punishment.

These are intellectually defensible ­positions and defensible grounds to have doubts about hate crime proposals generally. But anything resembling this is too often missing from the Scottish ­political debate on this Act, which is distracted, shadowboxing phantoms.