Police Scotland staff have been given a script defending Scottish First Minister Humza Yousaf after he faced a deluge of hate crime reports (Express, GB News, Scottish Daily Express, Telegraph, Times).
The national force issued the email guide to call centre workers and officers, advising them of lines to take in response to claims that the First Minister made a racist speech at Holyrood at the height of the Black Lives Matter movement.
Mr Yousaf, who was then the justice secretary, had highlighted the race of a series of high-profile figures in Scottish public life in June 2020, pointing out that each of them was white, and adding that at 99 per cent of the meetings he went to he was “the only non-white person in the room”.
Such was the volume of complaints about the remarks that Police Scotland issued a guide on a “form of words” to recite when members of the public complain about the First Minister under his new hate crime laws.
It states that Mr Yousaf had been referring to his “own personal experience of racism” and that “nothing said in the speech was threatening, abusive or insulting”. When he had been referring to “white people”, he had been “pointing out a matter of fact”, it adds.
The guide also said: “There was no malice or ill will towards any person or group displayed in anything said, and so it does not meet the threshold to be recorded as a non-crime hate incident [NCHI].”
The email, issued by Police Scotland’s diversity unit after the hate crime laws came into force this month, added that the speech was protected under Mr Yousaf’s rights to freedom of speech.
On the face of it, however, this appears contrary to Police Scotland’s ‘Hate Crime National Guidance’ on the recording of NCHIs, which is still available on its website (here).
The guidance states: “For recording purposes, the perception of the victim or any other person is the defining factor in determining whether an incident is a [NCHI] or in recognising the malice element of a crime. The perception of the victim should always be explored, however they do not have to justify or provide evidence of their belief and police officers or staff members should not directly challenge this perception.”
Elsewhere, the guidance states that NCHIs must be recorded on Police Scotland’s Interim Vulnerable Persons Database (iVPD) “on every occasion”, no matter how trivial or vexatious.
Until very recently, Police Scotland appears to have been following this guidance.
Last month, for instance, Conservative MSP Murdo Fraser was forced to write to Scotland’s top police officer to demand “urgent clarity” after the force recorded a social media post he had written criticising the SNP-led government’s Non-Binary Equality Action Plan as a ‘non-crime hate incident’ (NCHI).
The incident was reported to Police Scotland by a trans activist who claimed that it constituted hatred against non-binary or transgender persons. The Area Control Room and police officer who followed up on the matter determined that, although no crime had been committed and the police would conduct no further investigation, the perception of the complainant meant that his post would be recorded as an NCHI and a reference number was provided to the complainant.
So why has an NCHI been recorded against Conservative MSP Murdo Fraser, but not SNP First Minister Humza Yousaf?
We suspect Police Scotland have quietly decided to bring their NCHI guidance into line with the statutory code of conduct about the recording and retention of NCHIs that applies in England and Wales, which, thanks to a succession of legal and legislative victories by Harry Miller and the FSU, means they’re only recorded in exceptional circumstances.
Why? Because Murdo Fraser, with the help of the FSU, threatened to take them to court if they didn’t.
Humza Yousaf certainly appeared to suggest as much when on April 4th he quietly slipped into an interview the news that Police Scotland are now “looking at the changes that were made in England and Wales recently [regarding the recording and retention of NCHIs] and reviewing their own procedures in that respect”.
Then of course there’s the latest data from Police Scotland, which makes clear that in the two weeks since the legislation was activated approximately 9,000 hate crime reports have been received, with 445 ‘hate crimes’ logged, but only 55 NCHIs recorded. Clearly, “the perception of the victim” is no longer the “defining factor” in determining whether an incident is an NCHI, and Police Scotland must no longer be following their own guidance and recording them “on every occasion”.
If that is the case, and Police Scotland have indeed now brought their national guidance on NCHIs into line with the guidance that the police in England and Wales use, that’s excellent news.
But if so, it would be nice of them to tell us so we can stand down our lawyers. A public body cannot just do these things on the quiet to avoid the embarrassment of admitting they got it wrong.
