How I exposed police failings over 'non-crime hate incident' recorded against me

Murdo Fraser explains Police Scotland’s Orwellian response after a trans rights activist wrongly alleged he had committed a hate crime – and dreads to think what might happen to someone in his situation who wasn’t an MSP

Tomorrow night the Free Speech Union, on whose Scottish Advisory Council I am very pleased to sit, will host a meeting in Edinburgh on the topic “Policing priorities in Scotland: the free speech perspective”. Leading experts from legal and policing circles will come together to discuss how the police in Scotland balance hate crime legislation with the overriding need to protect free speech.

It is a timely event when these debates have become ever more intense. It is now a year since Scotland’s hate crime laws were introduced, but we have yet to see a single case come to court of an individual accused of the new crime of ‘stirring up’ hatred, and accordingly it’s impossible to know how the courts will interpret the legislation, and where the line will be drawn between fair comment and hate speech.

In the meantime, there remain concerns that the legislation’s very existence is having a chilling effect on what individuals are prepared to say, particularly in heated and highly contested areas of public discourse such as around gender.

No one in Scotland has yet been prosecuted for the new offence of 'stirring up' hatred, introduced in April last year (Picture: Jeff J Mitchell) | Getty Images

Whistling Bob the Builder

One area of considerable controversy which I am sure will be discussed tomorrow evening is the existence of “non-crime hate incidents” (NCHIs), which are recorded by the police when an individual makes a statement deemed to be hateful by a member of the public, which does not meet the threshold of a hate crime.

This has no legal effect, and the circumstances of some are simply bizarre. Toby Young of the Free Speech Union has reported one case of a man in Bedfordshire who had an NCHI recorded against him after his neighbour reported him to the police for continually whistling the theme tune to Bob the Builder.

Regular readers of this column will recall I had my own experience with Police Scotland and an NCHI last year. I had shared on social media an article written by my fellow columnist Susan Dalgety in which she was critical of the Scottish Government for producing a “non-binary action plan”. My post was reported to the police by a trans rights activist.

Police Scotland determined, correctly, that no crime had been committed (it would have been absurd had any other conclusion been reached) but nevertheless, in line with their policy, recorded a NCHI.

Three grounds for complaint

Having obtained legal advice with the assistance of the Free Speech Union, I complained to Police Scotland on three grounds. Firstly, that the recording of an NCHI was unlawful as it contravened both the Human Rights Act and the Data Protection Act, and was an illegitimate interference with my legally protected right to freedom of expression.

Secondly, that the policy of recording NCHIs was itself unlawful as a breach of free speech. And thirdly, that the policy was not being consistently applied, as a different approach had been taken in relation to comments on social media made by others, including the former SNP First Minister Humza Yousaf and writer JK Rowling.

Police Scotland rejected all three of my complaints. I then referred the matter to the Police Investigations and Review Commissioner (PIRC), which last month upheld them all, issuing three reconsideration directions to the police, to which they must respond within two months.

What is striking about the PIRC report is what it tells us about how my original complaint was addressed by Police Scotland. My detailed legal arguments in relation to the unlawfulness of their policy were simply not responded to in any meaningful way.

Police wilfully withheld information

The inspector who replied to my original complaint had made enquiries with the police’s legal services department to seek an assessment on whether the hate crime national guidance was lawful, but no detailed response as to the rationale on the legality of the policy was ever actually produced to him.

What is worse, the inspector noted in the complaint handling form that a response to me would “provide enough explanation as to why policy is not contrary to law, but will not provide every reason. This would allow Police Scotland to retain their legal arguments should (the applicant) or other pursue legal action”.

In other words, Police Scotland were wilfully withholding information that might support their argument, because of their concern that this might weaken their position should I decide to pursue subsequent legal proceedings against them. PIRC found that this response was “not in the spirit of the complaint process”.

There was similar criticism from PIRC of the police’s response to my third complaint, in relation to the unfair and inconsistent application of the policy. The inspector confirmed to PIRC that he did not receive guidance on this from senior officers. In the words of PIRC, this was “a significant shortcoming in the complaint inquiry in establishing material facts”.

Outlawing non-crime hate incidents

I should hear within a few weeks a more detailed account from Police Scotland, but what we have learned thus far discloses a level of dysfunction within the organisation that must be deeply concerning. I am also very much aware that a Member of the Scottish Parliament has a public platform and position which many others do not benefit from, and I can only shudder to think how someone without that standing might be treated when it comes to complaints against the police, if that is how seriously they take complaints from me.

In the meantime, the Shadow Home Secretary Chris Philp MP is tabling an amendment to the Crime and Policing Bill at Westminster to make it illegal in almost all circumstances for the police to collect or retain personal data about hate incidents where no crime has been committed.

It is good to see my party signalling that it wants to bring an end to the existence of Orwellian NCHIs. They serve little purpose, and my own experience proves that even the police have little understanding of how to deal with them.

Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife