Sectarianism: message received?

This article was originally published on Amansaman.

Sectarianism has rarely been out of the news since a spate of high-profile threats at the start of the year spurred the Scottish Government into action. A “summit” (as in “we have to do summit aboot this”) was held in the run up to the Scottish election, and football clubs, police and politicians promised action. When, after the election, Celtic manager Neil Lennon was assaulted on live television, the rhetoric hardened and the newly anointed SNP majority government pledged new laws to solve the problem.

Fast forward a few months and, while the passage of new legislation has been slowed to allow for proper consultation, the Lennon case has been prosecuted, and this week the jury reached a verdict, sensationally acquitting John Wilson of the assault charge, convicting him instead of a breach of the peace. But more interestingly as far as I’m concerned, the jury chose to remove the statutory aggravation of “motivated by religious prejudice” from the charge, meaning that Wilson was not convicted of a hate crime.

Under Scots law, any charge can have an aggravation attached to it by the Procurator Fiscal to identify additional factors in a crime, but different approaches in different areas mean that they are used haphazardly. Statutory aggravations are a relatively new concept designed to standardise aggravations to identify hate crimes. The first was introduced in 1998, covering racially motivated crimes; in 2003 a statutory aggravation for religiously motivated crimes was brought in; and last year more, covering homophobic and transphobic crimes, were created.

The logic is pretty reasonable. If hate crimes are accurately identified and similarly prosecuted across the country, then sentences can be consistent and the authorities can gather statistics which help formulate policy to combat these type of offences.

So far so good. Juries are being asked to assess the motivations of actions, like those of John Wilson, to decide how harsh his sentence should be. They have to be sure beyond a reasonable doubt of those motivations. So it is right that, when they cannot establish that certainty, such aggravations are dropped from the conviction. Nonetheless, statutory aggravations give a solid and useful method for identifying and monitoring hate crime across Scotland.

So if we have an effective way of prosecuting hate crimes (even if not all prosecutions are effective, as the Lennon case shows) then why is the Scottish Parliament in the throes of constructing more law to tackle sectarianism?

The answer, unfortunately, is that it is trying to “send a message”. A dodgy form of politics and a dodgy form of law, because it is essentially a sleight of hand. “Send a message” politics tries to change behaviour by giving it a special status in criminal law, when in fact the behaviour is already against the law. It tries to set up a hierarchy of badness, making a particular crime worse than another simply because it is part of a social phenomenon which is of concern.

We saw an analogy in the aftermath of the recent London riots, when magistrates were instructed to hand down jail sentences for all offences committed during the unrest. So the smashing of a shop window which might have attracted a fine were it done the day before, attracted six months in prison because it was done as part of that dangerous few nights. By all rational assessment this is ludicrous, and it’s highly likely that a series of expensive appeals will overturn the worst excesses.

The danger with current proposals for anti-sectarian law is that they may do the same. It is one thing to use statutory aggravations to track and monitor hate crimes; it is quite another to enshrine in law that committing a crime on the day of a football match is worse than committing the same crime the day before. A famous political fallacy is in danger of being brought to bear again: “Something must be done; this is something; therefore it must be done.”

Sectarianism is a scourge in parts of Scotland, but so are racism, homophobia and Islamophobia. And if we’re honest, they all have the same root, and it’s nothing to do with religion, race or sexuality. Some people are violent and pig-ignorant. We’ve developed ways of dealing with such people over the centuries, none of which are perfect, but they are the best we have. We ought to think carefully before we send any more messages using the law. They might just get lost in translation.