Today is the first formal evidence-taking session on the Offences (Aggravation by Prejudice) (Scotland) Bill. On the first panel of witnesses we have Tim Hopkins, the policy and legislation officer for the Equality Network, James Morton, the project co-ordinator for the Scottish Transgender Alliance, and Christina Stokes, the communications officer for Stonewall Scotland. I thank everyone for their written submissions. Having read them, we can go straight to the questions.
The committee is aware that, under the common law in Scotland, it is already possible for courts to take the motivations of an offender into account when determining sentence. Is there any evidence to suggest that the common law is inadequate in that regard? If so, how will the bill significantly improve the current situation?
It is theoretically possible to deal with the kind of aggravations that we are concerned with under the common law, but that is not happening. Nobody has reported to us that an offence against them has been dealt with in that way.
That is clear. Thank you.
No, I have nothing to add.
What about Christina Stokes?
The common law cannot send a clear message that such crimes are unacceptable in a modern Scotland—I suspect that that matter will be addressed later. The statutory aggravations will address the motivation behind such crimes, which the common law cannot do. That said, I completely agree with Tim Hopkins.
So the bill will send an educational message to the public.
Yes. However, we also know that the underreporting of such crimes is a huge problem. Many gay people think that being subject to such offences is simply part of being gay and is nothing serious, but I think that we all agree that such crimes can be horrific and that they need to be dealt with seriously. If the bill sends out a clear legal message—and other messages are sent out thereafter in judgments and so on—that such crimes will be taken seriously, people will realise that they will be taken seriously and will be encouraged to come forward. They will realise that the substantial stress and hassle of reporting a crime, which obviously prolong the agony to a certain extent, are worth it.
That is clear. Thank you.
Good morning, colleagues. The bill does not make provision for a mandatory sentence to be attached where an aggravation has been proven. What kind of sentencing tariffs should be available in order to send out the message that the panel wants to send out?
The Equality Network is quite happy with how the bill is drafted in that respect. The underlying offence could be any one of a broad range of offences, from quite minor offences that would be dealt with by a community sentence up to murder. Specifying a tariff for the change that the aggravation would make to the sentence would be difficult.
Do you accept that it could be viewed as unhelpful for there not to be any specifics with regard to the type of offence? You talked about community sentences. Are there examples of those in relation to these crimes that you would present as best practice in challenging such behaviour?
It is still early days. I am aware of one particular case down south, in Brighton, in which someone committed a relatively minor homophobic attack. Their community sentence for that crime involved working for one of the lesbian, gay, bisexual and transgender community organisations in Brighton.
Christina Stokes made the point that we want to send out a message. You say that particular proposals are still being developed, so what are we equipped with to send that message? The legislation will be passed with batteries not included—we have something that we can use, but we are not sure how we will implement it to send out a clear message about behaviour because we do not have anything that will deal with that behaviour.
There is more than one way to send a message. If the crime is serious, it is likely that the penalty will be higher because of aggravation. A good example with regard to sending messages is the murder that took place a few years ago in England on Clapham common, in which a gay man was the subject of a homophobic attacked and killed. Statutory aggravation was already in place in England and the charge was one of homophobic murder. The judge described the offence as one of "homophobic thuggery", passed a minimum sentence of 28 years and said that he had increased the sentence because of the homophobic element.
Do Christina Stokes and James Morton have anything to add to that? Do you adopt those arguments?
I agree with Tim Hopkins. This is about maintaining the judge's flexibility to set the appropriate sentence. The community sentencing options do not all need to be in place from the start—they can be developed in time, and aggravation can still be taken into account for custodial sentences. I do not view it as something that is not yet ready for adoption—the approach is already successful in England, and a similar approach is being taken to race and religious hate crimes. All the possible community sentencing options were not in place when the legislation on race and religious hate crimes was implemented—they are still in development—but the approach still has an effect in terms of sending a message.
I largely agree with my colleagues—in fact, I entirely agree. We need to bear in mind the fact that the sentence is not the only way to send a message. A judge's very firm remarks on passing a sentence will also achieve that. I would like to leave sheriffs that flexibility—they are the experts, after all.
In their written evidence, the witnesses provided details of the extent of hate crime in Scotland that is motivated by prejudice based on sexual orientation and transgender identity. Will the bill have a significant impact in reducing the level of homophobic and transphobic hate crime and, if so, how? I wonder whether, as she touched on the issue earlier, Ms Stokes could respond first.
I have to say that, although we have evidence, it is not of brilliant quality, partly because the justice services have no consistent means of recording hate crimes. The first thing that the bill would do would be to provide that means, which would allow us to examine the level of such crimes year on year and, indeed, to track trends. That is very difficult at the moment.
The bill will be particularly important in dealing with transgender hate crimes, because at the moment there is a lack of public awareness of transgender people's rights simply as human beings. Indeed, the public tend to see transgender people as less than human, and sending the message that hate crimes against people because of their transgender identity are unacceptable would be a major step forward in raising public awareness. After all, not being able to tell someone's gender clearly does not give anyone the right to attack them in the street. The bill is important because, without it, people will continue to think that transgender people do not count in equality terms. The point has certainly been overlooked in the past.
I agree with my colleagues. As Christina Stokes has pointed out, one of the bill's first effects will be to encourage more people to report crimes. It is likely that in the first couple of years after the bill is passed—if, of course, it is passed—we will see the same thing that happened when the religious aggravation element was introduced, which is that the number of aggravated crimes that are reported to procurators fiscal and prosecuted will go up as people get more confident about reporting them to the police.
Mr Hopkins has anticipated my next question. Can Mr Morton and Ms Stokes give us their views on the other measures that are required to reduce hate crime in Scotland?
Tim Hopkins alluded to the LGBT hearts and minds agenda group report, which is a tremendous piece of work that took an awful lot of time to put together and sets out various ways of addressing certain matters in different areas of life. The short answer to the question is that there must be leadership. We must make it very clear that, in every area of life, homophobia and transphobia are unacceptable and that everyone has rights and deserves to be treated decently.
I strongly agree with the points that Christina Stokes has made. Dealing with transgender equality issues and reducing discrimination and harassment against transgender people are primarily a matter of taking a lead in educating the public about transgender people and their existence and the fact that they are not people to be feared or to be prejudiced against—they are just trying to get on with their lives. I am really pleased to see the Scottish Government leading on that.
The reporting of crimes has been touched on. I am keen to get more information about other reasons why people do not report crimes.
You should bear in mind how recently homosexuality was legalised in Scotland. I was born in 1981, when it had been legal for only a year. People grew up not trusting the police, and they had good reason not to. It takes a lot of time to re-establish trust, and we know that all police forces are working hard to deal with that. However, we start off on the back foot. Given that it was not so long ago that being gay was illegal, if someone is attacked for being gay, their instinct is not going to be to run to the justice services.
We have conducted a number of hate crime surveys among LGBT people in the Equality Network, and one of our questions was why people do not report incidents to the police. Christina Stokes is absolutely right: a lot of people do not report incidents because they do not think that anything will happen or that the justice system will deliver. Some people do not report incidents because they do not trust the police.
In 2007, the Scottish Transgender Alliance carried out a survey of 71 transgender people in Scotland. People gave two key reasons for not reporting incidents to the police. One was fear of being laughed at by the police and the criminal justice system and of being told, "What do you expect if you're transgender? It just goes with being trans." They were fearful of having their identity mocked.
I have a final question for Ms Stokes. Paragraph 4.2 of Stonewall Scotland's written submission states:
I cannot bring a case to mind at the moment, but I can easily get back to you on that. We certainly know of cases in which people were spotted near gay clubs on Elm Row and then beaten up, although the assailant did not know whether the person was gay or straight. I work in the LGBT centre for health and wellbeing in Edinburgh, which is known as a gay building. If I was attacked walking out of the offices, the assailant would not know my sexual orientation, but they would still be committing a homophobic crime. They would not know anything about me; they would simply believe that I was gay but have no evidence to back that up.
Christina Stokes is right. It is fairly well known that there are a number of gay bars near the top of Leith Walk. Trouble often kicks off there late at night and people are attacked because they are waiting at the taxi rank. In such attacks, the attacker does not know whether the person is gay, but the attack is clearly homophobic because of what is said.
As the point about bars was mentioned in Stonewall's written evidence, I ask Christina Stokes to get back to us with the specific instance.
If I can find a specific case, I will certainly get back to you with it.
It has been suggested that the bill would create a hierarchy of rights, with some groups of people having more rights than others. How do you respond to that suggestion?
I have two points. First, as we have just discussed, the bill is not about the victim's identity; it is about the attacker's motivation. The bill will protect everybody from such attacks whatever their identity, just as the law on racial aggravation protects everybody, whatever their race. That is the first point. I am sorry, I had a second point, but I will have to pass over to one of my colleagues. It is always dangerous to say that you have two points.
A few of us have been caught out in that way in the past.
From the perspective of transgender people, we are really pleased that the bill is not framed around somebody having to prove their identity to receive justice and that it is about the motivation of the attacker—whether they targeted somebody because they thought that that person was possibly transgender. There are cases in which people who are not transgender have been targeted because they were assumed to be transgender. For example, an ordinary woman who is simply tall with a deep voice might be accused of being a transsexual woman because she does not fulfil expectations about height and voice. There have been situations in which people going to a venue or working for an organisation have been targeted because assumptions were made about their identity.
I agree with my colleagues. The bill addresses the motivation for the attack. If there is a hierarchy of victims or rights, it exists only in the mind of the attacker, who clearly thinks that some people have less right to walk unmolested. That is the attitude that we are trying to attack. It is not about the victim; obviously, all victims are equal in the eyes of the law.
Is it all right if I come back in with my second point?
Yes. I thought I saw recognition dawning there.
The bill addresses a particular problem or crime hot spot. The evidence shows that certain kinds of hate crime—racist, sectarian, homophobic, transphobic and disability-related hate crimes—are more prevalent and certain kinds of people are more likely to be attacked. We are talking about a targeted criminal justice intervention to deal with a crime hot spot.
I will follow up on a couple of points before I ask my main question. There are many parallels between what the panel said about the underreporting of hate crime and the evidence that the committee has heard for the Sexual Offences (Scotland) Bill in relation to the underreporting of rape and other such sexual offences—to do with the likelihood of conviction and factors such as embarrassment. Is there any research or other evidence to indicate that the level of underreporting of hate crimes, for example against gay people, is different from the level of underreporting of more general sexual crimes or of assaults, which are also underreported?
A survey of 924 LGBT people across Scotland found that only 17 per cent of people who had been victims of harassment or physical attack had reported it to the police. That one data point suggests that there is significant underreporting.
So your argument is that, regardless of the comparative levels of underreporting, the introduction of an aggravation has had an obvious effect on the problem of underreporting.
Yes.
On my more general question, we have had submissions from a number of religious organisations that say that freedom of speech might be threatened by this aggravation, particularly for those who hold what have been described as traditional Christian beliefs. There is obviously an element of overlap between hate crimes of this kind and views that, for example, homosexuality is wrong. What are your observations on that point and its implications for the bill? It is quite an important point.
That is something that we have thought carefully about over the five years for which the Equality Network has been working on the hate crime issue and on possible legislation. It is an important concern to address.
Do you believe that there needs to be guidance for the police and the prosecution authorities? These are quite complex issues that could pose significant problems for someone who is not acquainted with the area, which could lead to the sort of things happening that everyone agrees should not be happening. Do you have any thoughts on that?
Yes. The issuing of guidance to the police will be very important. The Lord Advocate and the Crown Office have already said, in the Crown Office's written submission on the bill, that they will prepare guidance for the police. The Association of Chief Police Officers in Scotland has said that it would welcome that and would work with the guidance. If the bill is passed, there should definitely be guidance for the police, and we are told that it will be forthcoming.
You make a reasonable point that the cases that are cited by the Christian Institute did not result in convictions. Does Mr Morton or Ms Stokes have any points to make in support of, or in addition to, those comments?
I support Tim Hopkins's comments and do not have anything to add.
I agree with Tim Hopkins. The point to remember is that the bill will not create a new offence. A concerned preacher would have to have broken the law already—for example, through a breach of the peace—before the bill would affect them in any way. That is quite a strong test. It is not a question of someone reading from the Bible or preaching a sermon; it goes a bit further than that.
I have a final question on that point. The written submission from the Christian Institute states:
I read that part of the submission, but I did not really understand it. The police investigate crime in Scotland; the procurator fiscal prosecutes; and the courts decide on the sentence—none of that is done by gay activists.
Good morning. I want to pick up on something that is not in the bill. You will be aware that the Equal Opportunities Committee considered the possibility of including similar provisions on age and gender but decided not to do so. Do you have any comments to make either for or against that decision? It was not a decision of the Justice Committee, but we are interested in your views on it.
The view of the Scottish Transgender Alliance is that there are different issues for the minority of people who experience transphobic hate crimes and for people who are the targets of more general sexist crime and domestic abuse because of their gender, rather than their gender non-conformance. We were happy to go with the views of the wider gender equality organisations on whether it would be helpful to include provisions on gender. We do not have a strong opinion on that. We want protection from transphobic hate crime in particular.
The Equality Network's view is that gender-based crime is a huge problem in Scotland, given that 50,000 or so cases of domestic abuse are reported to the police per year, the majority of which involve men abusing women. It is a question of what the right response is. I agree with James Morton that what the gender-based organisations have decided seems to make a lot of sense.
I do not have much to add. I know that my colleagues in gender organisations have considered that issue over a great deal of time, so I will follow their lead on it.
Thank you for confirming that.
I thank the panel for coming to see us this morning and for giving their evidence in such a clear and succinct manner. The committee is very grateful indeed.
Meeting suspended.
On resuming—
We now welcome our second panel of witnesses. Norman Dunning is chief executive of Enable Scotland and a fairly regular attender at this committee; Faye Gatenby is campaigns, parliamentary and policy manager at Capability Scotland; and Charlie McMillan is director of research, influence and change at the Scottish Association for Mental Health. Ms Gatenby, gentlemen, good morning and welcome. We will go straight to questions.
Good morning, colleagues. The committee is aware that, under the current law of Scotland, it is already possible for courts, when determining sentence, to take an offender's motivation into account. Is there any evidence to suggest that the common law is inadequate in that regard? If so, how will the bill improve the situation?
I will kick off, if you like.
As a regular attender.
As a regular attender, but not one who has come this morning to make terribly many contentious points.
We echo points made by the previous witnesses. We have spoken to lots of disabled people about their experiences, and we are not aware of any cases of aggravated crimes being prosecuted. Although the common law is available, it is perhaps not being used in a way that really deals with the issue.
That was a nice, clear answer.
I totally agree with my two colleagues and with the previous witnesses. If we consider the incidence figures for victimisation and hate crime, we see the common law's lack of effectiveness.
Good morning. The bill does not make any provision for mandatory sentencing when an aggravation has been proven. Do you have any views on the types of sentence that offenders should receive when an aggravation has been proven?
We again agree with what has already been said. Flexibility is necessary because of the different sorts and levels of crime. Regrettably, there have been two or three cases of very serious crime—torture, rape and murder—against people with learning disabilities. However, such cases are extremely rare, and our members and our surveys tell us that the main issue is low-level crime, such as breach of the peace, verbal abuse, low-level assault and damage to property. While it is low-level crime, it is serious for the people involved, because it creates fear in them and encourages a general attitude towards them in the community.
The tariff should be appropriate and the prejudice aspect of the offence should be recognised. As has been said, an offence can be anything from a serious matter to what might seem to be less serious. Most of the cases that we have come across have been at what is perceived as a lower level but, as Norman Dunning said, they are important to the people involved.
We can build on programmes throughout Scotland to challenge offending behaviour and its root causes. In this case those causes are prejudice and discrimination, possibly conflated with anger management issues, and the relationship between discrimination, prejudice, anger and hatred in committing offences. In challenging that, we are talking about rehabilitating offenders and about change, which are critical in sentencing. Sentencing should absolutely be guided by the judiciary, but we must develop a range of sentences that goes to the heart of the issue.
Your submissions refer to the extent of disability hate crime. Why do you believe that the bill will significantly reduce hate crime and how will it do so?
If the bill is passed, we hope that it will significantly reduce hate crime. The incidence of such crime against people with experience of mental health problems is completely unacceptable in Scotland in 2009. In some surveys, 71 per cent of respondents said that in the past two years they had experienced hate crime or behaviour that they believed to constitute hate crime. Is that the kind of Scotland that we want to have? People with experience of mental health problems need to believe that they belong to Scotland, too.
I agree with Charlie McMillan that the bill is an important first step that needs to be taken before we can go down the other roads. We—Scotland, the criminal justice system and voluntary organisations—need to understand what hate crime is and what motivates it. With a consistent understanding and a consistent way of recording, collating and analysing information, we can all start to work together to develop innovative ways of addressing the issue.
People with learning disabilities talk to us about bullying rather than crime specifically. We did two limited surveys of people with learning disabilities and found that 65 per cent of adults and more than 90 per cent of children reported being bullied, which suggests that the problem is widespread.
Do Mr McMillan or Miss Gatenby want to say anything about measures in addition to the bill, as Mr Dunning did?
Mr Dunning touched on a number of measures. The bill links across to the societal response to the see me campaign and other on-going anti-stigma campaigning work and wider social marketing work that the Scottish Government undertakes. There is a real argument that that campaigning work needs to come closer together to address the similar issues with which we deal. When we deal with discrimination and prejudice, whether it is homophobia, sexism or to do with disability issues, the object of the prejudice does not matter as much as the constructs that people use. There are ways of addressing that in campaigning work. SAMH is heavily involved, for similar reasons, in the see me campaign and the respect me campaign, which is the anti-bullying service that the Scottish Government funds.
I agree with my colleagues. When we read accounts of crimes that are motivated by prejudice towards disabled people, what comes through awfully clearly is the perception of disabled people as being much less valuable than and not equal to other people in our society. As colleagues have said, that is the nub of the problem, therefore we must change hearts and minds and bring the public and society around. That is done by seeing more disabled people in our communities and in employment, for example working at the desk next to us. It is about familiarity and seeing disabled people not as the other who just goes off to the day centre on the edge of town but as valued members of our community. That issue must be addressed.
A critical point is that we perceive and define people through their difference. There needs to be a huge debate about that in Scotland, because any one of us could become or might be disabled. We cannot assess somebody by just looking at them. In the case of sexual orientation, there is also a fear factor. Many people might be wrestling with their sexual orientation, and how that comes out could be perceived as an attack on others. One in four of us will have a mental health problem at some point in our lives, which means one in four of us in this room. We really need to get away from thinking about people with differences as those people over there and start thinking about us and our society. That is critical and should underpin the baseline that is proposed in the bill.
This is a difficult area. I was struck that Mr Dunning used the word "bullying" to describe the core of what he was trying to put across. Bullying straddles the ideas of both vulnerability and prejudice against people with disabilities. Is it easy to distinguish between the two and is there a need to give advice about that to those who need to interpret the law practically?
People need to take bullying seriously. As I said, most acts of bullying that are reported to us are crimes, although they are not reported as such. There is a variety of reasons for that, but one is that the people to whom the reports are made do not take the matter seriously. That is an issue.
That is the essence of what concerns me. We are trying to craft a law that works practically and makes a difference in the areas that you so graphically described.
In many of the situations reported to us, it is clear that the disability is more of a factor than the vulnerability, because of what accompanies the bullying. That is demonstrated by the language used about people, the things that are scrawled on the windows of their homes and the names that they are called, which are clearly disablist. There is strong evidence that such incidents occur not just because the person is easy to pick on, although there will be an element of that too. One of the bill's strengths is that it does not rely on whether the person is disabled; one has to prove the perception of the offender. That seems right to me.
This is a good example of the need for a consistent approach to hate crime in all its forms, which we referred to earlier. We also need a way to work with the criminal justice system and society in general to develop a clear understanding that can be applied consistently across the board.
I reinforce what Norman Dunning said about bullying. The behaviour that is understood by the term "bullying" has almost gained acceptability—it is seen as a normal part of growing up. That is what we hear time and again from young people who are being bullied. We need to be careful about that, because bullying is unacceptable, whenever it happens. It would be unfortunate if we got caught up in the definitions of bullying and hate crime, as the two behaviours are equally unacceptable.
Given those complex issues, is it important that training and guidance be given to the police, the Crown Office and Procurator Fiscal Service and so on in relation to the implementation of the legislation?
We work quite closely with ACPOS and the Crown Office and Procurator Fiscal Service. They have been at the forefront of addressing many of the equality issues in the United Kingdom and Scotland for the past 10 years or so. They are committed to learning more, working with voluntary sector organisations and challenging the responses of their own officers, because they accept that it is not always the case that the best response is given. There is an openness to the issues and a willingness to develop the guidance by building on what is already in place.
Are you satisfied with the definition of disability in the bill?
We are happy with it. That was an easy question.
We are glad to get that on the record.
It has been suggested, to this committee and to others, that the legislation might create a hierarchy of rights, which would mean that some groups received greater protection than others. What are your views on that?
I totally disagree. The bill is highly targeted to deal with a specific problem. It addresses the needs of the community, based on people's experience. I do not accept that the bill would create a hierarchy of rights. Existing legislation deals with issues relating to race and religion, and the bill will deal with issues relating to disability, sexual orientation and so on. It follows the European and international lead in terms of equality and diversity.
People with learning difficulties are very much an unrecognised group and have had a pretty raw deal in the past. The bill represents an attempt to address that specifically. We have come a long way by moving people out of institutions and trying to get them more accepted in the community, but we have to do more to get the community to accept them to an even greater extent. The bill is one measure that can be used to do that.
One of the strengths of the bill is that it protects everyone. It focuses not on the individual's circumstances but on the other person's motivation. As was said by the previous panel, if there is a hierarchy, it is in the mind of the perpetrator. I do not believe that there is a hierarchy of individuals.
As I did with the previous panel, I conclude by asking about extending the debate to introduce the issues of age and gender. You will be aware that, for various reasons, the Equal Opportunities Committee dismissed the idea of including aggravations based on age and gender. Do you have any observations to make about that?
I do not have anything to add. The experts considered the matter both in committee and at the working group back in 2004 and I am happy to stand by their recommendations.
Having read the evidence that the Equal Opportunities Committee took, we are perfectly content.
Thank you for confirming that.
As there are no further questions, I thank you for your clear and concise evidence. It is greatly appreciated.
Meeting suspended.
On resuming—