According to official Police Scotland figures, a total of 9,374 hate crimes have been reported since the country’s draconian new Hate Crime law was activated on 1st April, with only 0.6 per cent deemed legitimate.
The Hate Crime and Public Order (Scotland) Act broadens the offence of ‘stirring up racial hatred’, extending it to the protected characteristics of disability, religion, sexual orientation, age, transgender identity and ‘variations in sex characteristics’.
The Bill won the backing of a majority of MSPs in March 2021, despite concerns that the entire section on stirring up hatred (section three) was “fundamentally flawed” and represented an “attack” on freedom of speech.
Activation of the legislation was then delayed while Police Scotland began the process of “training, guidance and communications planning”.
Putting aside race (which is handled slightly differently to the other protected characteristics) committing the ‘stirring up’ offence requires:
1) Behaviour or communication to another person of material that a “reasonable person” would consider threatening or abusive; and
2) Intention to stir up hatred against a group of persons defined by a protected characteristic.
As per the legislation’s protections for freedom of expression, it will not be deemed “abusive and threatening” to engage “solely” in “discussion or criticism” about age or any of the other protected characteristics.
Scots are also expressly permitted to voice “antipathy, dislike, ridicule or insult” for religion.
However, that carve-out does not apply to the legislation’s other protected characteristics, raising serious free speech concerns, not least for those who express gender critical beliefs and challenge basic tenets of gender ideology.
In the latest official statistics to be published since the law came into force, Police Scotland said that between 15th April and 21st April, 390 hate crime reports had been received, representing an 80 per cent fall on the previous week. A further 30 reports were logged as ‘non-crime hate incidents’, or NCHIs.
Of the nearly 9,400 online hate crime reports received in total since April 1st, just 616 have been recorded by officers as potential hate crimes, and 79 as NCHIs.
The NCHI data is particularly interesting from a free speech perspective, given that Police Scotland’s national guidance on the recording and retention of NCHIs says officers must record all reports of hate crimes as NCHIs, with no exceptions.
That’s because, for Police Scotland, the defining factor when it comes to a NCHI is only ever the complainant’s perception of what happened, even when there isn’t a shred of evidence to support the claim that the accused was motivated by hostility towards one or more protected characteristic.
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 NCHI.
A few days later, a trans activist reported his post to Police Scotland claiming that it constituted hatred against non-binary or transgender persons. The Area Control Room and 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 a NCHI, and a reference number was provided to the complainant.
So if Police Scotland have received nearly 9,400 hate crime reports since the new Hate Crime Act was activated on April 1st, but only recorded 79 of them as NCHIs, it follows that they have abandoned their publicly available guidance.
So what is Police Scotland’s new policy when it comes to the recording of NCHIs? Are they planning to tell us at some point? And how did they arrive at this new policy?
We suspect the country’s national force have suddenly 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 do we suspect that? Because Murdo Fraser, with the help of the FSU, had 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”.
But if so, it would be nice of them to tell us so we can stand down our lawyers.
A public body can’t just do these things on the quiet to avoid the embarrassment of admitting they got it wrong.
