Risque jokes around the dinner table, insulting an elderly colleague, offensive football chants and even staging a Shakespeare play could all now be counted as hate crimes in Scotland, a lawyer said today.
Under the SNP’s deeply controversial Hate Crime and Public Order Act, it is now a crime to ‘stir up hatred’ in relation to protected characteristics including age, disability, religion, race, sexual orientation and transgender identity.
Britain’s Public Order Act 1986 already criminalises stirring up hatred based on race, colour, nationality or ethnicity, but the Scottish law sets the bar lower by including ‘insulting’ behaviour and requiring prosecutors to prove only that stirring up hatred was ‘likely’ instead of ‘intended’.
Much of the controversy has focused on the impact on people expressing gender critical views. But the impact could go far wider, encompassing everything from shows at the Edinburgh Fringe to social media posts.
Currently it is very hard to say in practice what constitutes a hate crime under the new rules, with the responsibility for deciding what counts as criminal left to Police Scotland.
Alistair Bonnington – a former law lecturer and head of legal at BBC Scotland – said the Hate Crime and Public Order (Scotland) Act could criminalise a wide range of speech, despite the SNP insisting it sets a ‘very high bar’ for prosecution.
Here are some of the activities he says could technically fall foul of the new legislation –
The new law applies to private homes, not just to comments or behaviour in public, raising the possibility that dinner party conversations could be criminalised. Pictured: File photo
Age is included as a protected characteristic under the Hate Crime and Public Order Act. Pictured: File photo
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Private joke to a friend
The new law applies to private homes, not just to comments or behaviour in public, raising the possibility that dinner party conversations could be criminalised.
‘Something you said to your wife or your kid could potentially be a crime,’ Mr Bonnington told MailOnline.
‘When teenagers are growing up they can be mad and we have bred a rather sanctimonious generation.
‘So they could then report their parents, relatives or friends for something like an offensive joke.
‘Jokes among friends could be affected too. I’m originally from Glasgow and almost everything said in a Glasgow pub could be a crime.’
Insults about age
Age is included as a protected characteristic under the Hate Crime and Public Order Act.
Mr Bonnington said a young person insulting an older colleague at work could potentially be considered a criminal offence under the act.
The retired lawyer gave an alternative scenario where someone abuses an elderly passenger on public transport.
‘It’s not uncommon for someone to call someone a stupid old bastard if they do something silly on a bus or a train.
‘Anything like that could fall under it.’
Sectarianism is a significant issue in parts of Scotland, with Old Firm games between Rangers and Celtic serving a focus for the divide between Protestants and Catholics. Pictured: Celtic and Rangers fans in 2016
The character of Shylock in 1598 Shakespeare play The Merchant of Venice is often seen as a reflection of antisemitic prejudice. Pictured: Neil Vipond as Shylock and Carl Reggiardo as Antonio
Football chants about religion
Sectarianism is a significant issue in parts of Scotland, with Old Firm games between Rangers and Celtic serving a focus for the divide between Protestants and Catholics.
‘Theoretically, under this act, almost everybody at these games should be arrested, Mr Bonnington said.
‘Rangers fans have various songs about the Pope which are extremely rude and make a lot of jokes about all Catholic priests being sex offenders.
‘Then Celtic sing Irish republican songs.
‘These religious hatreds could fall within this act. In fact I don’t think there’s any doubt they do – after all the whole point of these songs is to spread hatred.’
Putting on ‘offensive’ plays
The character of Shylock in 1598 Shakespeare play The Merchant of Venice is often seen as a reflection of antisemitic prejudice.
Mr Bonnington said this could technically lead to anyone putting on the play in Scotland being prosecuted under hate crime laws, although he accepted this was unlikely.
‘If you’re asking could you put a legal case then the answer is probably yes,’ he said.
‘The last scene in the Merchant of Venice is extremely antisemitic so you could argue that a performance in Scotland could be a matter for the police to intervene.
‘But there’s an obvious issue of practicality here when it comes to books or plays that have been published for a long time.’
The Fringe features many comic acts and some comedians have had shows cancelled in the past for being too controversial. Pictured: File image of the event
A person will be found to have committed an offence under the new law if they either behave or communicate material – including those online – in a manner that a ‘reasonable person would consider to be threatening or abusive’. Pictured: File photo
Edinburgh Fringe comedy
The world’s largest performance arts festival returns to the Scottish capital this August.
The Fringe features many comic acts and some comedians have had shows cancelled in the past for being too controversial.
‘I’m not saying all these acts could fall under the hate crime laws but a great many could,’ Mr Bonnington.
‘The act compels the police to keep records of these complaints, so we may at least see a very large number of additional complaints coming in.’
‘Threatening’ tweets
A person will be found to have committed an offence under the new law if they either behave or communicate material – including those online – in a manner that a ‘reasonable person would consider to be threatening or abusive’.
Therefore, if an individual was taken to court over comments they had made on social media, a judge would consider what a ‘reasonable person’ would decide upon seeing the evidence.
Mr Thomas said this could lead to social media posts that are fairly innocuous risking prosecution.
‘The test in the act is that a reasonable person would find something threatening. But what could that mean?
‘The SNP are making out that it is a very high bar that must be passed but that isn’t true.’
