The unopposed passing by the Scottish Parliament of the Offences (Aggravation by Prejudice) (Scotland) Bill has again triggered a mix of comments about whether the measure creates privileged groups in the law.
There are those who think that, by specifically providing that it is an aggravation of an offence that it is committed because the victim is of a particular sexual orientation, or has a disability, the law is creating specially protected or privileged groups. This is fallacious because the offence is an offence whoever it is committed against, and to make an aggravated form of it in certain cases could be said to be doing no more than redressing the balance in favour of groups whom experience has shown are likely to be singled out as victims. The aggravation of prejudice must, of course, be proved.
However adding in this fashion to the existing categories of "hate" aggravations - race and religious belief - does tend to undermine the traditionally principled approach of Scots law. Any aggravating features inferring previous malice could always be added to a charge and taken into account when sentencing; if it was felt necessary to reinforce this with special statutory provisions, would it not have been preferable to apply them to any situation where an individual is singled out, whether as one of a defined group or simply because the offender had taken a particular dislke to them?
There are concerted efforts, for example, to crack down on bullying, which is surely a form of hate crime, but a bully's victim will not necessarily be a member of one of the groups now covered by the legislation. At the end of the day if we are to have special recognition and punishment of hate crime, in my view, we should tackle it in all its manifestations. The hate motive is what should be highlighted, punished and recorded; the characteristics of the victim should be secondary.