Cancel culture in Scotland today is a matter of opinion

The new Hate Crime and Public Order (Scotland) Act 2021 came into effect on April 1, 2024. As of now, there are no published figures specifically under this new legislation. However, the latest available data for the period just before the Act came into force showed increasing trends in hate crime.

The police have been under pressure to pursue hate complaints rigorously, says David Duncan

In 2023-24, hate crime charges increased. Racial crimes were the most reported, with a notable rise. Disability-related charges also saw a significant increase from the year before.

For more detailed and updated statistics under the new Act, we probably need to wait for the next annual report around June 2025. Interim figures were released shortly after the implementation of the Act which, perhaps unsurprisingly, showed a significant jump in reports of alleged criminal conduct to police. These reports were mostly anonymous.

The difference between so-called ‘cancel culture’ and hate crime is controversial. A rough definition of cancel culture is the ostracising of a person or persons for speaking in an unacceptable manner. Presumably, this means unacceptable to whoever considers it so.

Has the level of jeopardy increased from cancellation to criminality in Scotland now, for expressing opinion? Prison cell culture?

Critics say that the absence of a requirement to intend the “stirring up of hatred” places the person expressing an opinion in the soup. They also believe that the Act can be weaponised by the noisy minority.

The Scottish Government response is that police officers have been properly trained and have adequate resources. They said that there will be a ”very high threshold” for prosecution, and that there is a perennially available defence that the conduct is “reasonable” in the circumstances.

There are certain realities that exist amidst the debate and conjecture. The police have (inevitably) been under pressure to pursue these complaints rigorously.

And the possible availability of a statutory defence at the end of your trial is not much comfort if you’ve been through the ringer already awaiting trial.

The issue of what is “reasonable”; and the “reasonable person” test is unfortunately a moving target, and the irony of the whole thing is who gets to determine that? Is it pressure groups, or Police Scotland? Is it prosecutors or individual Sheriffs or Judges?

Some might argue that the latter three categories could potentially be influenced by the Scottish Government’s rationale for introducing the legislation in the first place.

It is, of course, inevitable and proper that society’s views move on with time but for some, cancellation may not be the final test.

Beyond the slightly comical prospect of having to shop your sherry-fuelled grandmother to the authorities for her outdated comments at the Sunday dinner table, there are genuine considerations for a cross-section of society that never had to worry about being criminalised.

There are novel considerations for the individual, the assorted media, the arts, and certainly for lawyers. Something that might once have led to an employment tribunal might now be criminal. Any lawyer with clients who have opinions that they express will need to be ready for these issues.

David Duncan is Director, Duncan & McConnell