Hate Crime Laws Are Not Working - An Open Letter

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An Open Letter to;

Kenny MacAskill MSP, Scottish Justice Secretary,

Lord Advocate, Frank Mulholland QC,

The Chief Constable of Police Scotland, Stephen House,

The Equality and Human Rights Commission and 

The Scottish Human Rights Commission,

12 August 2014

Dear Sirs,

Ineffective Protections against Hate Crime

My Partner and I are on the receiving end of vicious Hate Crime, because of our sexual orientation. 

I had been lead to believe that the criminal justice system would protect both my Partner and myself from Hate Crime.  However, despite the grand standing that took place, heralding the introduction of Hate Crime legislation, by the Scottish Government, the Equality and Human Rights Commission and others, the law is a dud. 

The reasons for this; first, the perpetrators of the Hate Crime are all under the age of 16, and are classified as Children, and second, there is no effective monitoring of how the law protects victims of Hate Crime, allowing solutions to this problem to have been identified. 

I have been branded a “Peedo” and a “Beast” in front of my own home.  Our car windscreen has been smashed in.  Stones, bricks and other missiles have all been thrown at our home, our property is subject to regular trespass and Children will even come as far as the front door to bang and shout abuse.  What is more disturbing, is that the Children even solicited the support of wayward adults to assist in their campaign of terror, shouting “Best, Beast, Beast” at me and my home.

The Children concerned were charged and reported (through the Children’s hearing system).  I had hoped this would out an end to it.  However, because they are under 16, they were free to continue the abuse, and to encourage others to abuse us too.  They knew they would get away with it, which is why they continued, after being charged, reported and warned about their behavior. 

I have nothing but praise for my local Police Officers, who have been very supportive.  However, they find that their hands are tied.  The Police simply do not have sufficient resources locally to be effective, despite Hate Crime being classified as a national priority.  I also note, that the Crown Office does not review the effectiveness of the legislation, and the important legal protection that the law is meant to bring. 

Additionally, public policy considerations designed to promote the rights of the Child – even if the Children concerned are perpetrators of vicious abuse – trump those of the right of the victim to seek redress.  This is deeply disappointing, because as a result, my Partner and I are left without an effective remedy and, are left to suffer further torment.

Notwithstanding our legal entitlement to protection from acts of homophobic abuse, harassment and vandalism, there is little the criminal or civil law can do to help us. 

I am a qualified Solicitor, and sought refuge in the civil law.  I attempted to obtain an Interdict, with power of arrest and non-harassment orders against our abusers.  However, even this route was blocked.  In order to take this action, I would have required the cooperation of the local Social Work department, and the Police in order to obtain the identities of the perpetrators of the abuse.  That cooperation was refused owing to “child confidentiality”. 

We also approached the local Council community safety team at the City of Edinburgh Council for help.  It is now four weeks and counting, but no response.  They have done nothing to help us, nor have they offered any support.  Yet, under the Antisocial Behaviour legislation, they could take action.  So why haven’t they?  In my view, it is down to a question of priorities, and upsetting their colleagues in either Social Work or the Housing Department is not a priority.  A local council is highly unlikely to take Court action against itself now, is it?

My partner and I, are now looking to relocate away from Edinburgh.  We have had enough.  I hope that when we move, we get to enjoy the peace and quiet in our own home, and the freedom from abuse, harassment and vandalism, that we should expect. 

I now expect you gentlemen to take decisive action, given our experience, to prevent anyone else having to endure this horrific torment. 

Yours faithfully,

 Daniel Donaldson

Criminalising Mental Health

In Perth sheriff court a man was recently prosecuted for disorderly conduct.  He was depressed and jumped off a bridge.  It was the anniversary of his son's death.

From a mental health practitioners point of view, it is important to provide support to someone who is depressed and potentially at risk of taking their own life.  In this post, I examine whether or not the  criminal law, in the form of the Police and the Crown takes the same view

The Equality Act 2010

As you may be aware, mental ill health often falls within the protected characteristic of "disability" in terms of the Equality Act 2010. Provided that the condition lasts, or is likely to last more than 12 months and also has a substantial effect on a persons ability to carry out day to day activities.

 This important legal protection, is designed to ensure people who have mental Ill health do not experience discrimination and are also entitled to reasonable adjustments in the work place.

This being said, where does it leave the criminal law? Obviously, if someone commits a crime, the police are entitled to investigate and the Crown is entitled to prosecute, in the public interest. However, what happens if someone is depressed and attempts to take their own life?

Police and the Crown 

Before last week, I would have answered the question with a resounding Yes! I would have confidently stated that the Police and the Crown would have had appropriate training in mental health issues, in compliance with their civil law obligations under common law, to take reasonable care, under the human rights act, to act proportionately and also under the Equality Act, as a public authority required not to discriminate and also to promote equality of opportunity as a general duty.

However, today, I am less certain and am now no longer as confident as I was before.

The reason for my uncertainty was the story mentioned above carried online by STV News.  The man was prosecuted and now potentially faces a prison sentence.  The sheriff outlined his reasoning, namely that the man had placed the rescue service at unnecessary risk and he wanted to deter anyone from taking similar action.

I am not in full possession of the facts, as such I cannot comment on the specifics of this case. However, it does concern me from what has been reported that this case was both prosecuted by the Crown and that the Sheriff wished to deter others from jumping off of a bridge.

There was no mention of the man's mental welfare or concern that support should be offered.

Support not Prosecution

If someone is depressed, they require support not prosecution.

Similarly, if someone has taken steps to take their own life life, they also require support.

We cannot allow our criminal justice system to revert to a 19th century system where attempted suicide is criminalised and where people who are experiencing mental ill health are routed through the criminal justice system because they are not offered support, or do not know where to access support.

There are exceptions to this reasoning, if someone is a risk to others, or at risk to themselves then the law must act; but only where it is appropriate to do so.

Concerns 

In the current economic climate, I am concerned that with further cut backs planned, support services for people who have mental ill health will not meet the needs of the people who they are designed to serve.

There is already a high prevalence of mental ill health within the criminal justice system.

My primary concern is that the justice system will become a poor substitute for support services that ought to be there in the first place.