Scottish PEN welcomes today’s announcement by Humza Yousaf, Cabinet Secretary for Justice, that key changes will be made to the proposed Hate Crime and Public Order (Scotland) Bill, including a requirement that intention to stir up hatred is proven beyond a reasonable doubt before an offence can be prosecuted.September 23, 2020
Scottish PEN joined many other organisations in raising concerns that the current draft of the Bill required only that behavior was threatening, abusive or was likely to stir up hatred, regardless of intention. In his statement today, the Cabinet Secretary stressed the importance of striking a balance between the defense of freedom of expression and protection of groups targeted by hate crime and stated his hope that this significant amendment would help to build consensus around the Bill. The new requirement will also apply to offences around the possession of inflammatory materials.
Scottish PEN’s response to the recent consultation on the Bill highlighted the possibility of increased self-censorship by writers, a ‘chilling effect’ on journalism and a perceived restriction on artistic freedoms should an ‘intent only’ approach fail to be taken. We believe that restricting offences to situations where intention to stir up hatred can be demonstrated will significantly allay anxieties about the reach of the legislation.
The Cabinet Secretary also indicated an openness to considering how the ‘reasonableness’ defence could be strengthened to take account of artistic or journalistic context. Scottish PEN has argued that the Bill should give clearer guidance on factors which must be taken into account by the court – and earlier in the process, by police officers and procurators fiscal investigating complaints – in assessing whether the complained of conduct is reasonable, and suggest the introduction of the following clause:
“In determining whether the behaviour, communication, or possession of the material is reasonable under sections 3 and 5, the court must have due regard to the literary, artistic, journalistic, comic, or scholarly character of the behaviour, communication or possession, if any.”
This clause could be applied to provocative but nonetheless legitimate forms of writing, expression or research, and would contribute to ensuring the risk of a chilling effect on public discourse is minimised.
Scottish PEN recognises the serious harm caused by hate crime in our society, and the impact it has on writers’ ability to live their lives free of fear or censorship. We welcome the changes outlined today and look forward to constructively contributing to the development of the Bill and ensuring that protection of the freedom of writers is of central importance.
You can read our full response to the consultation on the Hate Crime and Public Order (Scotland) Bill here.
If you have any questions about Scottish PEN’s response, please contact us at firstname.lastname@example.org.