A piece in today’s Times:
Children risk exposing their parents to hate crime charges by repeating private conversations about transgender rights in the playground, a frontline police representative has claimed.
The hate crime bill being debated in parliament, as drafted, would criminalise conversations over the dinner table if they were deemed to deliberately incite abuse of minorities, MSPs were told.
Calum Steele, general secretary of the Scottish Police Federation, which represents frontline officers, said that children could unwittingly inform on their parents if “insulting” remarks about transgender rights, immigration or refugees were repeated in the playground.
Humza Yousaf, the justice secretary, has said that there should be no “dwelling defence” for conversations in the home that incite hate crimes.
His position was broadly supported by senior figures in Police Scotland, the Law Society of Scotland, the Faculty of Advocates, and the Crown Office and Procurator Fiscal Service (COPFS) who gave evidence the Scottish parliament’s justice committee today.
However, they unanimously opposed plans to prosecute people who behaved in an “insulting manner”.
Mr Steele said that, taken together, the plan to criminalise “insulting” behaviour without the defence that the conversation took place in the home could expose family members to prosecution if a third party who disagreed with their views filed a complaint.
He agreed that there was no general defence for committing a crime in your own home but acknowledged “there are some fairly hot topics that can be discussed in homes that can find themselves being repeated in public”.
He said: “The very obvious one that presents itself front and centre at this moment in time in Scotland is transgender identity. A conversation can take place in a home and be repeated in the playground — ‘my mum or my dad said’ — and then repeated to parents who hold a different view.
“Whilst that, at a conceptual level, could be insulting, I don’t think it would too much of a stretch for someone to argue that that was hateful and abusive. It is not beyond the realms of possibility that legitimate discussions over immigration and refugees in the home could similarly find themselves reported to the police as hate crimes.
“Conversations in private are repeated outside the home, perhaps innocently by members of the household, and an abusive label is applied to that.”
Anthony McGeehan, a procurator fiscal in the COPFS policy team, said that “insulting” behaviour should be removed from the bill but backed the justice secretary’s plan to prosecute over inflammatory conversations in the home.
He said: “Unfortunately, hate crime occurs in domestic settings and the absence of a dwelling defence in the wider context of Scottish criminal law, I would suggest, is not remarkable.”
Assistant Chief Constable Gary Ritchie, Police Scotland’s lead on crime prevention, also backed the prosecution of private conversations. He said: “Some of the potential offences are so insidious that . . . for someone to be considered to be protected just because they are in their own home, I think, goes a bit too far.”
Roddy Dunlop, QC, dean of the Faculty of Advocates, which represents Scottish lawyers, said: “For the state to step into the home and interfere with freedom of expression does seem rather draconian.
“On the other hand, there are many instances when the state does just that. It is equally criminal to punch somebody in your own home as it is on the street. You want to stop the radicalisation of children by hate speech within the home in the same way as you do someone on a soap box on a street corner.”
He said that the need to stamp out radicalisation outweighed the risk that “one’s least favourite uncle becomes the subject of a complaint to the police because of what he said over the Christmas turkey”.
Michael Clancy, director of law reform at the Law Society of Scotland, said: “There is no sanctuary of the home for most aspects of criminal law, and I don’t think there should be a sanctuary when it comes to hate speech.”
Andrew Tickell, lecturer in law at Glasgow Caledonian University, stressed that some of the public commentary on prosecuting conversations in the home had been “quite ridiculous”. He said: “Most criminal defences do not have a dwelling defence. Indeed, some types of crime mostly happen within dwellings like murder, rapes and domestic abuse.”
ANALYSIS
Humza Yousaf will have breathed a sigh of relief as the legal profession swung behind his plan to criminalise conversations in the home that incite abuse of minorities.
The SNP’s Hate Crime Bill attracted international attention last week thanks to the public opprobrium of firebrands like Nigel Farage and George Galloway.
Ms Yousaf was soothed by evidence from Andrew Tickell, an academic, and others who said that since people do not avoid charges if they murder, rape or beat their partners at home, neither should hate-mongers. However, he cannot escape their wider conclusion that the rest of the bill is a bit of a guddle.
Witnesses unanimously backed the view of Lord Bracadale, QC, who was commissioned to review the law by Scottish ministers, that the word “insulting” be removed as it should not be a crime to insult someone.
Mr Yousaf stood by his bill last week, insisting that only racist insults would be criminalised while religious bigotry, homophobia and transphobia would merely be “aggravators” for crimes.
Police representatives and legal experts pointed out that this risks sending a message that insulting a homosexual is not as bad as insulting an Asian person.
Dr Tickell, a law lecturer, said the need to stamp out hate is too important to be denied by sloppy drafting.
He said: “A number of students came to me some years ago and said, ‘I cannot come to class because I’ve seen that tomorrow is Punish A Muslim Day’.
“I find the way that this bill has been discussed, often from a position of extreme casual privilege, to be quite repulsive.”
Mr Yousaf’s critics should pay heed to the dark forces peering through the cracks in the bill that they seek to expand into gaping chasms of Orwellian hyperbole.
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