With the support of the Free Speech Union (FSU), Conservative MSP Murdo Fraser is threatening to take legal action against Police Scotland after a tweet he posted criticising the Scottish Government’s transgender policy was logged as an Orwellian ‘hate incident (non-crime incident)’.
As reported by the Mail, Mr Fraser says the force “behaved not just outrageously, but unlawfully” after learning that his name appears in police files simply for expressing a political view.
In his letter to Police Scotland’s Professional Standards Department, Mr Fraser, the MSP for Mid Scotland and Fife, points out that the Force’s current policy on the recording of hate incident (non-crime incidents) is not compliant with UK law, and its actions in recording a ‘hate incident’ connected to him is therefore unlawful.
He also demanded that Police Scotland change its guidance for the reporting and recording of hate crimes to align it with UK and international human rights law, and permanently delete its record of the hate incident (non-crime incident) recorded against him.
“I have assiduously pursued all available means of resolving this matter,” he writes, “and now reserve all rights to seek the deletion of the hate incident (non-crime incident) and amendment of the unlawful policy by way of judicial review and/or by way of a civil claim in the sheriff court as applicable.”
On 18th November last year, Mr Fraser reposted on X (formerly known as Twitter) a link to a newspaper article about the Scottish Government’s “Non-Binary Equality Plan”, which had been published earlier that week. He accompanied it with the comment, “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat. I’m not sure Governments should be spending time on action plans for either.”
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 hate incident (non-crime incident), and a reference number was provided to the complainant.
The MSP only found out about this because the same individual lodged a complaint with the Ethical Standards Commissioner of the Scottish Parliament, informing them of the original social media post and notifying them that they had reported the matter to the police who had recorded it as a hate incident (non-crime incident) and had provided them with a crime reference number, presumably in an attempt to bolster the credibility of their complaint.
On 20th December, the Ethical Standards Commissioner wrote to the complainant and informed the trans activist that, following an assessment of the complaint, there did not appear to be a breach of the Code of Conduct for MSPs, and no further investigation would be conducted, with the complaint dismissed as inadmissible. It was at that point that the Commissioner wrote to Mr Fraser informing him of the complaint and its outcome.
The next day, Mr Fraser wrote to Chief Constable Jo Farrell asking for a meeting to discuss the matter. The local area commander for Perth and Kinross replied almost three months later, on March 11th this year.
He confirmed that a hate incident (non-crime incident) had been recorded based on the victim’s perception, that there was no associated criminal investigation, but that the incident would remain on police records “in line with national guidance”.
Mr Fraser called in the FSU to back a legal challenge on the basis that Police Scotland has “adopted a cavalier and disrespectful attitude towards me and my rights to freedom of expression and privacy, and the right to be informed of false and damaging information held on police records”.
The MSP argues that the filing of the hate incident (non crime incident) breaches several laws, including the Data Protection Act 2018 (DPA), which is where Police Scotland appear very legally vulnerable.
Under section 35 of the DPA, in processing personal data for law enforcement purposes (i.e., “the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties”), the competent authority – in this case Police Scotland – must ensure that the processing of personal data is lawful and fair, and that either the data subject has given consent to the processing for that purpose, or processing is necessary for the performance of a task carried out for that purpose.
One of the “law enforcement purposes” defined by section 31 of the DPA is “prevention, investigation, detection, or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security”.
In addition, competent authorities must ensure that personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed.
Contrary to these data protection principles, however, Police Scotland’s ‘National Hate Crime Guidance’ is not law but, er, ‘guidance’, and therefore does not provide a ground for processing Mr Fraser’s data that is ‘lawful’ – although as the MSP points out in his letter, even if the processing were lawful, he did not consent to it, and it was not “necessary” (or proportionate).
Further, since Police Scotland confirmed to Mr Fraser that no crime had occurred and no further action would be taken, it did not process the personal data for a law enforcement purpose, i.e. for the purposes of the prevention, investigation, detection or prosecution of criminal offences.
Speaking to the Mail about this legal challenge, Mr Fraser said: “Police Scotland has behaved not just outrageously, but unlawfully according to the legal advice obtained by the FSU. This is Police Scotland attacking free speech, but it is more sinister than that. My tweet wasn’t pointing a finger at an individual, it was critical of a Scottish Government policy. If police are now treating criticism of SNP policy as hate incidents, that is a really serious issue as it shows how Police Scotland has been captured by the SNP policy agenda.”
Toby Young, the General Secretary of the FSU, said Police Scotland “should focus on policing actual crimes, not non-crimes”.
The row comes ahead of the Scottish Government’s draconian new hate crime laws coming into force next Monday, April Fool’s Day.
The Hate Crime and Public Order (Scotland) Act represents a chilling threat to free speech, broadening the offence of ‘stirring up racial hatred’ and extending it to the protected characteristics of disability, religion, sexual orientation, age, transgender identity and ‘variations in sex characteristics’.
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, like Murdo Fraser, hold and manifest the gender critical belief that the category of biological sex must take precedence over a person’s ‘gender identity’ in policy and law.
It’s true that the threshold of criminal liability for a ‘hate crime’ will not be that a victim feels offended (a subjective test), but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive (an objective test).
But Police Scotland has already made clear that it will investigate every single complaint made under the new law, which means that officers will have carte blanche to question people for expressing lawful but dissenting, offensive or contentious views that those with particular protected characteristics – as well as the many activists who purport to speak on their behalf – happen to perceive as ‘hateful’.
That’s something the FSU is concerned about, not least because any reported ‘hate crime’ that is investigated, but that doesn’t ultimately meet Police Scotland’s criminality threshold, may still be logged against the alleged perpetrator as a hate incident (non-crime incident).
Why? Because the defining factor in the case of a hate incident (non-crime incident) is only ever the complainant’s perception of what happened (i.e., a subjective test). Troublingly, this information is sometimes subject to disclosure under an enhanced criminal records check that candidates are asked to produce when applying for certain jobs or volunteering positions.
In other words, what happened to Murdo Fraser isn’t some one-off aberration, but constitutes part of a wider trend towards the criminalisation of speech based on subjective criteria that Scotland’s new hate crime law will only intensify.
From April Fool’s Day onwards, we fear we’ll see many more of these Orwellian ‘hate incident (non-crime incidents)’ getting recorded against Scots who dare to dissent from fashionable orthodoxy. So if you live in Scotland, now might be a good time to join the FSU — membership fees start from just £4.99 a month.
