Police Scotland acted unreasonably when it logged a non-crime hate incident (NCHI) against Conservative MSP and FSU member Murdo Fraser, and then dismissed his subsequent complaint without properly engaging with the law or the evidence.
That’s the damning conclusion of a 17-page report issued by the Police Investigations and Review Commissioner (PIRC), which has now directed the force to re-examine all three elements of Mr Fraser’s complaint. In a rare move, PIRC has issued statutory reconsideration directions requiring Police Scotland to carry out fresh enquiries and provide a further response within two months.
Mr Fraser, the MSP for Mid Scotland and Fife, described the ruling as a “devastating rebuff” to Police Scotland and a vindication of his decision to challenge what he called an “unlawful” policy that stifles free speech. The FSU supported him throughout, funding legal advice and securing expert representation. At a time when perception-based policing is increasingly weaponised by activists, this case shows what can be achieved when you have us in your corner. We now await Police Scotland’s response with keen interest.
The case stems from a social media post Mr Fraser published in November 2023, responding to the Scottish government’s Non-Binary Equality Action Plan. He wrote: “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 member of the public reported the post as a hate incident. Although officers determined that no crime had been committed, it was still recorded as a NCHI – without informing Mr Fraser. He discovered the recording only after the complainant referenced it in a separate complaint to the Scottish Parliament’s Ethical Standards Commissioner. When he asked Police Scotland to remove the NCHI, the force refused.
His lawyers submitted a formal complaint on three grounds: that the NCHI involved unlawful recording of personal data; that the force’s hate crime guidance was itself unlawful; and that the policy had been applied inconsistently. Police Scotland rejected all three, prompting Mr Fraser to refer the matter to PIRC.
In the first element of the complaint, he cited sections 35 and 37 of the Data Protection Act 2018, which require personal data to be processed lawfully, fairly and transparently. He argued that the force had recorded and retained his personal information without informing him and without a lawful basis for doing so.
‘Chief Inspector D’ – who wrote to Mr Fraser with the outcome – denied that any such data had been recorded, and claimed there was “no evidence” of inappropriate data handling. He argued that the force’s Interim Vulnerable Persons Database (iVPD) was the only mechanism by which an NCHI could be recorded, and that Mr Fraser’s data did not appear there.
But as PIRC found, this was both legally and factually flawed. Mr Fraser’s personal data had been recorded, not only in the log created immediately after the complaint (a log known as STORM), but also in the associated iVPD concern log. These systems, the watchdog noted, are “inextricably linked”, and searchable via cross-referenced log numbers. The applicant’s name, professional title and details of his social media post had originally appeared in both.
PIRC said that Chief Inspector D had failed to assess whether Mr Fraser’s personal data had been processed in accordance with Police Scotland’s own policies or the law. Instead, he appeared to limit his (mistaken) analysis to whether data had been recorded in one database (the iVPD), ignoring the fact that STORM also held information clearly meeting the definition of “personal data” under the Act.
The Commissioner concluded that the force had not considered all the available evidence and had failed to engage meaningfully with the legal framework governing data handling. The response was “not adequately reasoned nor supported by the material information available”.
In his second element of his complaint – about the national guidance on recording NCHIs – Mr Fraser argued that the policy was unlawful because it “makes no allowance for Police Scotland to exercise common sense discretion in determining whether there was a lawful justification to interfere with the alleged perpetrator’s right to freedom of expression”.
This was in part, he said, because the guidance required no evidence of hostility or prejudice – only the perception of the person making the report. In practice, this meant that incidents could be recorded without investigation or further action, leaving a digital trace on systems like STORM and iVPD. He maintained that this amounted to a significant interference with Article 8 of the Human Rights Act (respect for private and family life), by effectively branding individuals as “perpetrators of hate” regardless of whether any offence had occurred.
He also pointed out that the “one-sided effect” of recording an incident based solely on the “say-so” of the complainant meant the policy failed to uphold the Public Sector Equality Duty under section 149(c) of the Equality Act 2010.
In response, Police Scotland referred to a series of potentially relevant documents – including its Record Retention Standard Operating Procedure, the Hate Crime Strategy for Scotland and an Equality and Human Rights Impact Assessment. However, it did not explain how these materials related to, or assisted in, its determination of whether the national guidance was lawful or addressed the rights-based concerns Mr Fraser had raised. As PIRC noted, this was particularly problematic given that it constituted “the crux of [Mr Fraser’s] complaint”.
The watchdog also found that ‘Inspector C’, the officer responsible for drafting the response to the complaint, had sought input from Police Scotland’s Legal Services Department on the lawfulness of the guidance. However, none was received and no assessment was undertaken.
In a further concern, PIRC said Inspector C had noted internally that the response would “provide enough explanation as to why policy is not contrary to law, but will not provide every reason”, in order to preserve the force’s legal position should Mr Fraser pursue legal action. PIRC criticised this as “not in the spirit of the complaint process”, warning that it risked withholding “potentially key information, which would be required to fully address the complaint”.
In the third element of his complaint – that Police Scotland had applied its own guidance inconsistently – Mr Fraser pointed out that, following public complaints about statements made by JK Rowling (about gender ideology) and former SNP First Minister Humza Yousaf (about ‘whiteness’), the force had confirmed that no NCHIs had been recorded. Yet in his own case – involving a similarly controversial statement on a contentious subject – one had been logged.
PIRC’s investigation revealed that, during the handling of the complaint, Inspector C sought clarification from a senior officer on whether a policy decision had been made not to log NCHIs in the two high-profile cases. No response was received. Despite this, Police Scotland dismissed Mr Fraser’s complaint as unsubstantiated.
That was a serious failing, the watchdog concluded. The core issue – whether Mr Fraser had been treated differently from others in materially similar situations – was never addressed. No comparative assessment was undertaken and the final response offered no indication of which, if any, other cases had been considered in reaching the view that there was no inconsistency or bias.
PIRC also noted that Mr Fraser had suggested there may have been a shift in policy or approach after the introduction of the Hate Crime and Public Order (Scotland) Act on 1st April 2024: a potentially significant point that was not explored by Police Scotland. Had this been investigated, it might have explained the discrepancy – or confirmed that the guidance had been applied unequally.
