Aggravation by Religious Prejudice in Scotland: The Lord Advocate’s Lacuna

This post is by Dr Phil Glover.

The Lord Advocate, the Rt Hon James Wolffe, QC, recently wrote to the Scottish Justice Secretary Michael Matheson following the conviction and sentencing of Tanveer Ahmed for the religiously-motivated murder of Asad Shah.  His correspondence referred to a ‘gap in the law’ (the Lord Advocate’s lacuna) and reflected ‘the earlier decision by senior Crown Office and Procurator Fiscal Service counsel that the circumstances of the killing did not meet the statutory test for an offence to be aggravated by religious prejudice’. Mr Matheson’s public response was that ‘as a government we are now going to consider [the Lord Advocate’s letter] very carefully and if necessary… bring forward legislation to address this very issue’.

Following my own research into the current legislative and common law provisions relating to aggravation by religious prejudice, I have reached the same conclusion as the Lord Advocate and also written to Mr Matheson. The purpose of my letter, in the absence of an official consultation, is to provide evidence of the existence of the lacuna, comment on some of its implications and propose a solution which involves amending the current statutory provision for aggravation by religious prejudice rather than the enactment of completely new legislation.

In summary, I recommend that a very simple amendment could be inserted to the provisions of the Criminal Justice (Scotland) Act 2003, s74(2) to include the evincing by an offender of malice and ill-will towards their victim (if any) based on ‘the victim’s public expression of personal religious belief(s)’. This would correct the Lord Advocate’s lacuna. I will now make the case for that assertion.

That the Offence was ‘religiously motivated’.

Asad Shah’s murder was undoubtedly based on religious prejudice and his sentence should have ‘officially’ recorded the fact as a matter of law and of appropriate societal labelling. In passing judgement and sentence, Lady Rae observed that Ahmed’s murder of Mr Shah:

was a brutal, barbaric and horrific crime, resulting from intolerance and which led to the death of a wholly innocent man who openly expressed beliefs which differed from…[those of Ahmed]…this was a religiously motivated crime, although it was not directed towards the Ahmadi community…[a branch of the Muslim faith of which Asad Shah professed adherence]

Lady Rae’s conclusions in the agreed narrative are founded on the fact that Tanveer Ahmed unashamedly and unrepentantly admitted (via a statement made on his behalf by his solicitor) that his conduct was motivated by his religious intolerance of Asad Shah’s expression of personal religious beliefs. Lady Rae’s use of the term ‘intolerance’, as opposed to ‘prejudice’ in her statement is somewhat unfortunate, as Scots Law currently does not make common law or statutory provision for ‘intolerance’. A description of Ahmed’s conduct as motivated by ‘religious prejudice’ would have perhaps served to narrow the Lord Advocate’s lacuna.

It is my view that, regrettably, consistency in Scottish society and Scots law as regards interpretation and usage of terms such as ‘hate crime’, ‘intolerance’, ‘offensive’ and ‘prejudice’ is currently lacking. However, if literal (rather than legislative) English is applied to the Lord Advocate’s issue, it is plain that ‘intolerance’ (unwillingness to accept views, beliefs, or behaviour that differ from one’s own) and ‘prejudice’ (dislike, hostility, or unjust behaviour deriving from preconceived and unfounded opinions) are readily interchangeable. It is therefore not difficult to concur with Lady Rae’s and Tanveer Ahmed’s statements that the brutal murder of Mr Shah was, as a matter of fact, aggravated by religious prejudice. Of course the issue raised by the Lord Advocate is that the circumstances of the murder were not, as a matter of law, aggravated by religious prejudice. As such, the relevant law will now be examined.

Scots Law regulation of ‘Aggravation by Prejudice’

The Scottish Government have acknowledged that Scottish courts possess longstanding common law powers to punish offenders more severely for the commission of prejudice-related crime by taking into account aggravating factors when sentencing. These have been complemented by a number of ‘statutory aggravations for criminal offences and substantive criminal law offences’. Leaving aside the debate over terminology and any potential benefits of consolidation, Scots law’s statutory aggravations include aggravation of substantive criminal offences by: racial prejudice; religious prejudice; disability prejudice; and sexual orientation prejudice and transgender identity prejudice. The current absence of Scots law provisions proscribing age prejudice and gender prejudice aggravations has been the subject of adverse comment. The statutory aggravations that do exist will now be examined. For present purposes, and to demonstrate the evolution of a drafting pattern that has inadvertently facilitated the Lord Advocate’s lacuna, aggravation by religious prejudice is examined last.

Origins of the Drafting Pattern – Racially aggravated harassment

Leaving aside the substantive offences of the (UK) Public Order Act 1986, which introduced the UK and Scotland to the concept of ‘racial hatred’, the first pre-devolution Act (i.e. law passed prior to the establishment of the Scottish Parliament) to directly address racial prejudice was the Criminal Law (Consolidation) (Scotland) Act 1995, as amended by the (UK) Crime and Disorder Act 1998. This enacted a new Scotland-specific substantive offence of racially aggravated harassment. This proved to be the beginning of what evolved into an identifiable drafting pattern, in that a ‘course of conduct’ or an ‘action’ is racially aggravated if:

(a) immediately before, during or immediately after carrying out the course of conduct or action the offender evinces towards the person affected malice and ill-will based on that person’s membership (or presumed membership) of a racial group; or

(b) the course of conduct or action is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

‘Racial group’ means ‘a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins’, ‘membership’ includes association with members of that group, and ‘presumed’ means presumed by the offender. It is immaterial whether or not the offender’s malice and ill-will is also based, to any extent, on the fact or presumption that any person or group of persons belongs to any religious group or any other factor.

In the absence of accompanying Explanatory Notes, the reason why the definition of the term ‘racial hatred’ contained in the Public Order Act 1986, is not replicated in the racially aggravated harassment provisions of the Criminal Law (Consolidation) (Scotland) Act 1995 (as amended) is not readily evident. ‘Evinces’ seems a carefully chosen word meaning ‘to reveal the presence of, or indicate’. ‘Racial hatred’ is replaced by ‘malice and ill-will’. This may be because proving ‘hatred’, a very strong, subjective and emotive term, on the part of an individual offender, was thought to represent too high a threshold for proof beyond reasonable doubt. Despite this ‘drop’ in threshold, the Scottish provisions, which require ‘malice and ill-will’, still demand a higher threshold of nastiness (for want of a better term) as part of the criminal behaviour (the actus reus, in legal circles) than the equivalent English offence. This only requires the transient and less nasty behavioural threshold of ‘demonstrating hostility’ towards the victim. (As an aside, the requirement for different Scots provision is never really made clear, but there was some relevant discussion in the House of Lords: see HL Deb 12 February 1998 vol 585 cols 1265-1325 and in particular Lord Monson on ‘nastiness’, col 1277.)

Aggravation by racial prejudice

The Crime and Disorder Act 1998 additionally introduced section 96, also drafted specifically for Scotland. Aggravation [of a substantive offence] by racial prejudice will occur where:

the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a racial group or the offence is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group.

Unsurprisingly (as they emanate from the same statute) the definitions of ‘member’, ‘presumed’ and ‘racial group’ replicate those for racially aggravated harassment. More importantly for present purposes, the drafting pattern wherein the conduct required (the evincing of malice and ill will towards a person based on their membership/presumed membership of a group an offender perceives as different to, and somehow irritating to him or her) is now becoming clearly evident.

Aggravation by Disability-related prejudice

This pattern continues in the Offences (Aggravation by Prejudice) (Scotland) Act 2009, section 1. As for the older statutory aggravations by racial or religious prejudice, this applies where it is libelled in an indictment, or specified in a complaint, that an offence is aggravated by prejudice relating to disability, and subsequently proved. An offence is aggravated by prejudice relating to disability if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to a disability (or presumed disability) of the victim, or (b) the offence is motivated (wholly or partly) by malice and ill-will towards persons who have a disability or a particular disability.

It is submitted that Scots statutory aggravations by prejudice as drafted therefore continue the now established practice of requiring the offender’s malice and ill-will towards a victim (if any) to be based on the offender’s perception (correct or otherwise) of their victim as somehow different, irritating or repulsive to him or her on account of a particular characteristic (visible or otherwise) that the State has categorised (i.e. grouped together). In this provision, the relevant victim is perceived by the offender as being part of a wider group that the State has categorised as the ‘disabled’ group, or the offender feels predisposed to evincing malice and ill-will towards that State category more generally.

Prejudice relating to sexual orientation or transgender identity

The drafting pattern unsurprisingly continues in section 2 of the same statute.

An offence is aggravated by prejudice relating to sexual orientation or transgender identity if, at the time of commission or immediately before or afterwards, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to (i) the sexual orientation (or presumed sexual orientation) of the victim, or (ii) the transgender identity (or presumed transgender identity) of the victim, or

the offence is motivated (wholly or partly) by malice and ill-will towards persons who have (i) a particular sexual orientation, or (ii) a transgender identity or a particular transgender identity.

For the purposes of the provision, ‘sexual orientation’ is described as ‘sexual orientation towards persons of the same sex or of the opposite sex or towards both’; the Explanatory Notes to the legislation explain this means ‘heterosexuality, homosexuality or bisexuality’. ‘Transgender identity’ is reference to ‘transvestism, transsexualism, intersexuality or having, by virtue of the Gender Recognition Act 2004, changed gender, or any other gender identity that is not standard male or female gender identity’.For this definition, the Explanatory Notes explain that it also:

extends expressly to cover other persons under the generality of broad reference to non-standard gender identity…[including, but not limited to]…those who are androgynous, of…non-binary gender or…otherwise exhibit[ing] a characteristic, behaviour or appearance…[not conforming]… with conventional understandings of gender identity.

As for the previous forms of prejudice, aggravation by prejudice relating to sexual orientation or transgender identity requires the offender’s malice and ill-will towards a victim (if any) to be based on the offender’s perception (correct or otherwise) of their victim as somehow different, irritating or repulsive to him or her on account of a particular characteristic (visible or otherwise) that the State has categorised (grouped). In this case the State is seeking to protect the victim through categorising them as part of a ‘homosexual’ group, ‘heterosexual’ group, ‘bisexual group’ or ‘transgender group’.

Aggravation by Religious Prejudice in Scotland: the current law

The drafting used in Scotland’s statutory provisions providing for aggravation by religious prejudice represent a virtually verbatim derivative of the UK legislature’s older provisions for aggravation by racial prejudice previously outlined. The relevant statutory provision is the Criminal Justice (Scotland) Act 2003, section 74. As with the other statutory aggravations, it applies ‘where it has been either libelled in an indictment or specified in a complaint, and, in either case, proved that an offence has been aggravated by religious prejudice’.

For the purposes of section 74, an offence is aggravated by religious prejudice if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation;

or, the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.

Critically, for present purposes, section 74 defines ‘religious group’ as:

a group of persons defined by reference to their religious belief or lack of religious belief, membership of or adherence to a church or religious organisation, support for the culture and traditions of a church or religious organisation, or participation in activities associated with such a culture or such traditions.

Aggravation by Religious Prejudice: the gap in the law

As for the previous forms of prejudice, aggravation by religious prejudice requires the offender’s malice and ill-will to be based on their perception (correct or otherwise) of their victim as belonging to a group comprising persons the offender sees as somehow different, irritating or repulsive to them. Protection against acts based upon evinced malice or ill-will founded on religious prejudice is therefore only available to self-confessed or ‘obvious’ members of a religious group, or of a social or cultural group with a perceived religious affiliation. There is currently no protection for individuals freely holding or freely expressing individual religious beliefs. This is surely wrong.

As it stands, Section 74 would, ironically and on the agreed narrative, have encompassed Tanveer Ahmed’s conduct if Asad Shah had expressed any religious profession of belief that was not associated with any branch of Tanveer Ahmed’s Muslim faith.

Regrettably therefore, the Lord Advocate’s lacuna is that, as drafted, ‘aggravation by religious prejudice’ cannot be applied to offences committed against individuals exercising, exhibiting or expressing their fundamental human right to freedom of thought, conscience or religion. That human right is enshrined in Article 9(1) of the European Convention on Human Rights.

Asad Shah exercised his personal articulation of religious belief as permitted by this right but he could not be categorised within any particular ‘religious group’ as the State currently requires in the Criminal Justice (Scotland) Act 2003. Mr Shah was not murdered on account of ‘malice or ill-will’ towards a ‘group of persons’ to which he was presumed by Tanveer Ahmed as belonging. He was murdered on account of the ‘malice or ill-will’ Tanveer Ahmed evinced towards his expressed religious beliefs.

The Lord Advocate’s lacuna is therefore (perhaps inadvertently) expressed by Lady Rae in her sentencing statement to Tanveer Ahmed based on an agreed narrative:

This was a…crime, resulting from intolerance…of a wholly innocent man who openly expressed beliefs which differed from yours…this was a religiously motivated crime, although it was not directed towards the Ahmadi community.

As such, unlike any other form of aggravation by prejudice in Scotland, Tanveer Ahmed’s malice and ill-will towards his victim, although founded on religious grounds, does not aggravate his murder of Asad Shah by religious prejudice as a matter of law.

Implications

As such, the Lord Advocate is not only correct, but has acted correctly in his role as the head of a public authority bound to act in accordance with the provisions of the Human Rights Act 1998 by highlighting the lacuna to the Justice Secretary. The Lord Advocate’s lacuna undermines individuals’ rights to State protection of their freedom of thought, conscience and religion, and to freely express that belief, under the following international treaties:

Universal Declaration of Human Rights, Articles 18 and 19;

Charter of Fundamental Rights of the European Union, Articles 10 and 11;

European Convention on Human Rights, Articles 9, 10 and 14.

In addition, the lacuna demonstrates Scotland’s current non-compliance with the Framework Convention for the Protection of National Minorities 1995, which requires (in terms of Article 6(2)) States to ‘take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity’. The use of ‘religious identity’ is particularly noteworthy here as it clearly distinguishes the Framework’s requirement upon States to protect individual persons vulnerable on account of their religious identity from Scots laws current protection of persons only if they can be categorised as falling within a particular religious, social or cultural group.

The lacuna also means that the sentencing provisions of the Criminal Justice (Scotland) Act 2003, s74(4A) cannot apply to crimes motivated by religious prejudice such as that of Tanveer Ahmed discussed herein. As such, Lady Rae’s calculation of sentence was undoubtedly affected (which she made implicitly clear) and despite the obvious aggravation by religious prejudice, Tanveer Ahmed avoided having his conviction appropriately labelled and attracting heavier sanction.

Correcting the lacuna

In my view, the outward expression by an individual of religious belief to wider society is sui generis. Expressions of race, colour, ethnicity, nationality all involve displaying or expressing characteristics or behaviours or physiological features that make the individual expressing them perceivable (rightly or wrongly) as belonging to some wider ‘group of persons’. Similarly, perceptions (correct or otherwise) of individuals’ sexual orientation, transgender identity, age and gender label such individuals as part of a wider group. Such groups have been proven to be marginalised to varying degrees in varying circumstances, and as such have deservedly attracted protection from international and domestic law aimed at preventing discrimination and prejudice directed against those groups and individuals presumed to belong to them. The State has categorised such groups accordingly and afforded definitions for them that are broad in scope and protective ambit. This is laudable.

Expression of religious belief however, simply does not fit this altruistic policy mould. Religious expression is an individual act of expression. The protection afforded by ECHR, Article 9:

includes freedom to maintain or to change one’s religion or beliefs, and freedom to profess or disseminate one’s religion or beliefs, either individually or together with others, in public or in private…[it]…applies to all personal, political, philosophical, moral and, of course, religious convictions. It extends to ideas, philosophical convictions of all kinds, with the express mention of a person’s religious beliefs, and their own way of apprehending their personal and social life.

As such, state protection for those expressing religious beliefs should be on that very basis. This would fundamentally enhance the demonstrably ineffective provisions drafted on the basis of the State’s perception of individual religious practitioners as inevitably forming part of a wider religious, social or cultural group, or an offender’s perception of the individual’s membership (correct or otherwise) of a religious social or cultural group. It is surely not the Scottish Government’s policy to exclude those who murder someone because that someone has expresses a religious belief that is anathema to him or her from the ambit of the statutory aggravation by religious prejudice.

It is submitted that Lady Rae, in the words she chose as part of her sentencing statement for Tanveer Ahmed, has provided a partial draft solution to the problem, and which could be enacted as an amendment to the Criminal Justice (Scotland) Act 2003, section 74(2). The amendment (embedded in the existing drafting) is highlighted in bold.

For the purposes of section 74, an offence is aggravated by religious prejudice if:

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will, based on the victim’s public expression of personal religious beliefs, or the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation.

There would be no need to alter the second and more general definition of the aggravation. It is submitted that this simple amendment would correct the Lord Advocate’s lacuna by providing protection for individuals, such as Asad Shah, freely expressing their personal religious beliefs. It would also ensure that those who evince malice and ill-will based on intolerance of an individual’s publicly expressed personal religious beliefs, would (as was surely intended) fall within the ambit of hate crime legislation, thus correctly aligning Scots criminal law and procedure with wider Scottish Government policy on hate crime.

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