Hate crime
Scottish hate crime law is mainly in the Hate Crime and Public Order (Scotland) Act 2021, in force since 1 April 2024. Any offence can be aggravated by prejudice based on age, disability, race, religion, sexual orientation, transgender identity or sex characteristics. Stirring up hatred is a separate offence.
Law checked as at 25 September 2026. Legal information only, not legal advice, and not a prediction of any sentence.
At a glance
| Also known as | Aggravation by prejudice, Stirring up hatred, Hate Crime and Public Order (Scotland) Act 2021 offences |
|---|---|
| The law | Hate Crime and Public Order (Scotland) Act 2021, sections 1 and 4 |
| Where it is tried | an aggravated offence is tried in whichever court suits the underlying offence (Justice of the Peace court, sheriff court under summary or solemn procedure, or the High Court). Stirring up hatred can be prosecuted under summary procedure in the sheriff court or on indictment. |
| Maximum penalty | Aggravation by prejudice does not raise the statutory maximum for the underlying offence, but the court must take it into account, explain its effect on the sentence and record it on the conviction. Stirring up hatred (section 4): on summary conviction, up to 12 months' imprisonment and/or a fine of up to £10,000; on indictment, up to 7 years and/or an unlimited fine. |
Maximum penalties are the most a court can impose for the worst cases. Most sentences are far lower, and the actual sentence depends on the facts, any guilty plea and the court's assessment.
What the prosecution must prove
- Aggravation: the underlying offence, such as assault, threatening behaviour or vandalism, is proved.
- Aggravation: at the time of the offence, or immediately before or after, the offender showed malice and ill-will towards the victim based on the victim's actual or presumed membership of a protected group, or the offence was motivated wholly or partly by such malice and ill-will.
- Stirring up hatred (section 4): the accused behaved in a threatening or abusive manner, or communicated threatening or abusive material (for race, insulting behaviour or material is also covered).
- Stirring up hatred: for race, the accused intended to stir up hatred or a reasonable person would consider it likely to do so; for the other characteristics, the accused must have intended to stir up hatred.
- An aggravation can be proved by evidence from a single source, although the underlying offence still has to be proved in the normal way.
Defences and common issues
- For stirring up hatred: the behaviour or communication was reasonable in the particular circumstances, with particular regard to the right to freedom of expression (section 4(4) and (5)).
- Freedom of expression protections (section 9): discussion or criticism of the protected characteristics, and criticism, ridicule or insult of religion, are not treated as threatening or abusive solely for that reason.
- Disputing the aggravation: no malice and ill-will was shown, or it was not based on a protected characteristic.
- Defending the underlying offence itself, since the aggravation falls away if that offence is not proved.
Frequently asked questions
What counts as a hate crime in Scotland?
A hate crime is any offence aggravated by prejudice under section 1 of the Hate Crime and Public Order (Scotland) Act 2021. The protected characteristics are age, disability, race (including colour, nationality and ethnic or national origins), religion, sexual orientation, transgender identity and variations in sex characteristics. The offender must have shown malice and ill-will based on one of these, or been motivated by it. The Act also created offences of stirring up hatred. It replaced earlier laws, including the offence of racially aggravated harassment.
Is sex or misogyny covered by Scottish hate crime law?
Not yet. At the time of writing, sex is not a protected characteristic for aggravation or stirring up hatred under the Hate Crime and Public Order (Scotland) Act 2021. Regulations made in March 2026 under section 12 of the Act will add sex, meaning biological sex, to both from 5 April 2027, for conduct on or after that date. A separate misogyny offence was proposed after a working group reported, but no such offence is in force. Other offences, such as threatening or abusive behaviour, still apply to abuse aimed at women.
Can I be prosecuted for something I post online about a protected group?
Possibly, but being offensive is not enough on its own. Stirring up hatred requires threatening or abusive behaviour or material, or for race also insulting material. For characteristics other than race, the prosecution must prove you intended to stir up hatred. It is a defence that your conduct was reasonable, having regard to freedom of expression, and discussion or criticism of protected characteristics or religion is protected. Posts can also amount to other offences, such as threatening or abusive behaviour, which can be aggravated by prejudice.
What happens at sentencing if a hate crime aggravation is proved?
The court must say on conviction that the offence was aggravated by prejudice and which type of prejudice was involved, and record the conviction in that way. It must take the aggravation into account when deciding the sentence. The court must also state how much the sentence differs from what it would otherwise have been and why, or explain why there is no difference. The aggravation does not increase the maximum penalty for the underlying offence, but it usually makes the sentence more severe.
Does the victim have to belong to the protected group for it to be a hate crime?
No. The aggravation applies where the offender shows malice and ill-will based on the victim's membership of a group or presumed membership, meaning what the offender assumed about them, even if the assumption was wrong. Membership also includes association with members of the group, such as a friend, partner or relative. Where there is no specific victim, an offence can still be aggravated if it was motivated by malice and ill-will towards a group defined by a protected characteristic.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
- Hate Crime and Public Order (Scotland) Act 2021
- Hate Crime and Public Order (Scotland) Act 2021, section 1
- Hate Crime and Public Order (Scotland) Act 2021, section 4
- Criminal Law (Consolidation) (Scotland) Act 1995, section 50A (repealed)
- Hate Crime and Public Order (Scotland) Act 2021 (Characteristic of Sex) (Amendment and Transitional Provisions) Regulations 2026 (SSI 2026/150)
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