Gap in law on religiously aggravated crimes prompts call for review from Lord Advocate

The Lord Advocate, James Wolffe QC, has written to the Justice Secretaray to point out a “potential gap” in the law on religiously aggravated crimes following the murder of shopkeeper Asad Shah.

The Crown Office determined that the killing of Mr Shah, 40, by Tanveer Ahmed, 32 did not satisfy the statutory test for a religiously aggravated offence.

Mr Ahmed said he carried out the murder as the shopkeeper had “disrespected Islam” by claiming he was a prophet.

However, prosecutors said this cannot be construed as aggravated by religious prejudice under the Criminal Justice (Scotland) Act 2003.

Section 74 provides:

“An offence is aggravated by religious prejudice if at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim’s membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation; or the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.”

Mr Wolffe said: “Following careful consideration of the evidence, Crown counsel, the most senior lawyers in Crown Office concluded that the statutory test for an offence to be aggravated by religious prejudice was not met in the circumstances of this case.

“The absence of the statutory aggravation in this charge does not in any way diminish the gravity or seriousness of the crime. The full circumstances of the case were placed before the court for its consideration.

“The case has highlighted a potential gap in the statutory provision on religious aggravation and I have accordingly written to the Cabinet Secretary for Justice to ask him to consider reviewing the legislation.”

Justice Secretary Michael Matheson told STV News: “There may be a potential gap within the legislation at the present moment.

“I think he’s raised a very important issues and as a government we are now going to consider that very carefully and if necessary we will bring forward legislation to address this very issue that the Lord Advocate has raised.”