(This note is not part of the Regulations)
These Regulations commence the provisions of the Hate Crime and Public Order (Scotland) Act 2021 (“the 2021 Act”), to the extent that they are not already in force. The Bill for the 2021 Act received Royal Assent on 23 April 2021. Sections 17, 21 and 22 came into force the following day.
Regulation 3 makes transitional provision which takes effect where there is failure to establish that the time of commission of an offence was before 1 April 2024.
Regulation 3(1) to (3) apply where the accused is charged with the same conduct under both the 2021 Act and any of the provisions of existing law which are listed in the schedule of the Regulations. It applies where a court (or jury, as the case may be) is satisfied that the accused committed an offence charged but it has not been established beyond reasonable doubt that the offence took place before 1 April 2024. If those circumstances are met, regulation 3(2) provides for the penalty that applies on conviction. Where the maximum penalty under the existing law is less than the maximum penalty for the offence under the 2021 Act, the accused may be found guilty of the offence under the existing law and the penalty for the offence under the existing law will apply. Otherwise, the accused may be found guilty of the offence under the 2021 Act and the penalty for the offence under that Act will apply. Regulation 3(3) provides for the interpretation of the maximum penalty.
Regulation 3(4) and (5) make further transitional provision where there is failure to establish that the time of the commission of an offence was before 1 April 2024 and the accused is charged with an aggravation by prejudice under the existing law and under the 2021 Act. Where the court or jury is satisfied in every other respect that the offence has taken place, and the court is satisfied that the offence was aggravated by prejudice, regulation 3(5) provides that the aggravation provision under the 2021 Act will apply.
Regulation 3(6) provides that a reference to an offence in the regulation includes an attempt to commit the offence, inciting its commission, and being involved art and part in it.