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New ‘vague’ Scots hate crime law ‘could stifle free speech’

A new hate crime law in Scotland is so badly written it could stifle free-speech and see ordinary people in court simply for mis-speaking, a top lawyer warned today.

Thomas Ross, QC, said SNP ministers had failed to properly define offences included in the proposed Hate Crime Bill.  

He warned it would be ‘impossible’ for Scots to know if they had committed a crime, which could lead to debate on controversial subjects being stifled.  

He believes laws are already in place to deal with those who commit hate crimes, while the vague language used in the Bill could lead to serious offenders being acquitted.

Serious concerns have been raised, including over vague language and reference to ‘inflammatory material’. 

Lawyers, politicians, campaigners and religious groups believe the law could have a devastating impact on freedom of speech. 

In particular, they believe a section referring to the ‘stirring up of hatred’ signals that someone could be charged over comments perceived to be offensive, even if this is not intended.

There are also concerns people could be prosecuted for possessing ‘inflammatory material’ – which could include books, blogs, leaflets or social media. Those who share, forward or repeat such material could also face charges.

Mr Ross said: ‘If the Scottish Government is going to create an offence that can be committed unintentionally, drafters of the legislation have to make the essentials of the offence crystal clear. They’ve failed to do that.

‘The language used in the Bill is so difficult to understand that it will be impossible for the man or woman in the street to know when the line is likely to be crossed. 

‘A person might think, “I don’t intend to be offensive and I don’t think this comment is abusive, but what might a mythical sheriff think about it if the procurator fiscal is persuaded to prosecute? Why take the chance”. 

‘As a result a lot of interesting debate simply will never take place.’ 

There are fears the so-called ‘cancel culture’ prevalent online will make its way into law.

Those hounded on the internet include author JK Rowling and historian Neil Oliver. The latter was targeted last month after supporting fellow broadcaster Dr David Starkey by tweeting that he ‘loved him’.

Mr Ross believes the inclusion in the Bill of ‘stirring up hatred’ while failing to cite that this must be ‘intentional’, will cause serious difficulties. The lawyer, who practises with Benchmark Advocates, also said those guilty of serious hate crimes could be acquitted if jurors are unable to understand the law. 

The tweet predated a podcast in which Dr Starkey made controversial comments about slavery, for which he later apologised.

The National Trust for Scotland faced demands to oust Oliver as president, and he has since announced he will step down.

In another case, supermarket worker Brian Leach lost his job at a Yorkshire Asda store after sharing a joke by Sir Billy Connolly, poking fun at religion and terrorists. Asda later reinstated him.  

Mr Ross added: ‘What we tend to find is that the more complicated the essentials of the crime, the more likely it is the defence will be able to argue that the particular circumstances don’t meet the essentials.

‘Jurors are likely to say “I can’t in conscience send this person to the jail when I don’t even understand what the legislation is… I’ll make a conservative decision and just vote for not proven on the basis the case has not been proved beyond reasonable doubt”.  

‘The majority of cases where people would be convicted under this act will be cases where there is already half a dozen provisions which allow that person to be convicted.’ 

He added: ‘If the Bill makes a difference at all, it will make it in the marginal cases – bringing people into the criminal justice system who live their lives without bothering anyone, then make a remark that some person, or some group, finds offensive.’ 

Mr Ross believes it will be of benefit to Lord Advocate James Wolffe to proceed with all prosecutions under the legislation as he is a member of the cabinet, though not a political appointment.

He said: ‘The Lord Advocate is part of the cabinet, so if he elects to do nothing about it the matter could be raised through MSPs.

‘In that situation, it is much easier for the Crown Office to prosecute and leave it to a sheriff or a jury to make a decision. Meanwhile a person who had no intention to offend anyone, far less abuse them, is being dragged through the criminal justice system.’ 

Scottish Tory justice spokesman Liam Kerr said: ‘This Bill could add a significant burden on the courts as the police will have to arrest those they consider have broken the law and it will be down to the courts to decide.’ 

A Scottish Government spokesman said: ‘The proposals in the Bill are based on an independent review undertaken by respected retired judge Lord Bracadale.

‘In making his recommendations to extend the concept of stirring up hatred offences based on race, which has been part of Scots law since 1986, to other characteristics including religion and sexual orientation, Lord Bracadale was clear this would not have the effect of stifling legitimate views or seriously hinder robust debate.’

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