Hate Crime and Public Order (Scotland) Act 2021

Hate Crime and Public Order (Scotland) Act 2021

2021 asp 14

The Act

Part 2 – Offence of racially aggravated harassment

Section 3 – racially aggravated harassment

30. Section 3 provides for an offence of racially aggravated harassment. This replicates the effect of the offence of racially-aggravated harassment in section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 (“the 1995 Act”), which is separately repealed by paragraph 2 of schedule 2.

31. The offence can be committed in two ways; firstly, by pursuing a racially aggravated course of conduct which amounts to harassment of a person (and is intended to, or occurs in circumstances where it would appear to a reasonable person that it would, amount to such harassment) (section 3(1)(a)) and, secondly, by acting in a manner which is racially aggravated and which causes, or is intended to cause, a person alarm or distress (section 3(1)(b)). For the offence to be committed, the offender must either: demonstrate malice and ill-will towards the victim based on the victim's membership or presumed membership of a group of persons defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins, or be motivated by malice and ill-will towards members of such a group. Subsection (3) makes clear that it is immaterial whether or not the offender’s malice and ill-will is also based on any other factor. Subsection (4) provides that a course of conduct, as mentioned in section 3(1)(a), must involve conduct on at least two occasions.

32. Subsection (5) of section 3 defines some of the words used in the section. In particular, “membership” in relation to a group is defined to include association with members of that group.

33. Subsection (6) sets out the maximum penalties for an offence under section 3. In addition to setting the maximum penalties for fines, it provides that the maximum term of imprisonment on summary conviction for an offence under section 3 is 12 months. This matches the equivalent maximum term of imprisonment on summary conviction for an offence under section 50A of the 1995 Act, as modified by section 45 of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007. On indictment, the maximum term of imprisonment for an offence under section 3 is 7 years, which, again, matches section 50A of the 1995 Act.