Scotland’s Hate Crime and Public Order Act came into force on April 1, 2024, and six months of implementation experience revealed a legal landscape somewhat different from either the apocalyptic predictions of free speech advocates or the triumphant expectations of civil rights supporters. The reality proved more mundane than either perspective had predicted.
Police Scotland reported receiving more than 3,000 complaints in the first 48 hours after the law came into force, with the vast majority reported online and anonymously. The surge of initial reporting reflected both public awareness of the new protections and individuals testing the boundaries of what constitutes prosecutable conduct. However, police analysis found that the vast majority of those initial reports did not meet the threshold to be classified as actual hate crimes or hate incidents requiring investigative action.
The conviction rate for hate crimes under the new law has remained low in the first six months of implementation. The barrier for prosecution, let alone conviction, has proven consistently higher than many observers anticipated. Dean of Faculty advocates have suggested that meaningful convictions will remain relatively rare, reflecting the high evidentiary threshold required to prove a person intended to stir up hatred.
I’ve reviewed the initial implementation data, and what strikes me most is how the law’s severity created an initial reporting surge that subsequent investigation winnowed down to a much smaller number of prosecutable offenses. This pattern suggests that public awareness of the law exceeded the actual scope of behavior it criminalizes.
The controversial stirring-up offense remains challenging to prosecute because it requires prosecutors to prove intent, not merely that offensive speech occurred. A person must have intended to stir up hatred, not merely expressed opinions that others found offensive. This distinction has proven practically difficult for prosecutors to establish beyond reasonable doubt.
The law’s protected characteristics now include age and variations in sex characteristics, expanding protections beyond the traditional categories of race, religion, sexual orientation, and gender identity. This expansion created legal complexity and raised questions about whether age-related discrimination now falls within hate crime categories or remains a separate domain.
Early criticism from both free speech advocates and civil rights groups has moderated slightly as initial implementation proved less dramatic than either side had feared. The free speech warnings of mass prosecutions have not materialized, but neither have civil rights advocates celebrated a transformative expansion of protected conduct.
The law represents a genuine shift in Scottish legal approach to harmful speech, moving from protection of specific groups to prevention of speech that stirs up hatred against those groups. Whether that approach will prove more effective at preventing harmful conduct remains an open question.