Fergus Ewing: Non-crime hate incidents are a ‘perversion’ of justice system

The former SNP minister compared the practice to something out of the writings of Franz Kafka

Police Scotland’s practice of recording non-crime hate incidents is a “perversion” of the justice system, a former SNP minister has said.

Fergus Ewing, who is now an outspoken backbencher, said it was an “abnegation” of the right to a free trial in a democracy. Speaking in the Scottish Parliament on Wednesday, he compared the practice to something out of the writings of Franz Kafka.

Non-crime hate incidents have come under increased scrutiny in the wake of the Hate Crime and Public Order (Scotland) Act, which came into force on April 1.

Fergus Ewing

They are recorded when an incident does not meet the threshold for a crime, but is perceived to be “motivated (wholly or partly) by malice and ill-will towards a social group”, according to Police Scotland guidance.

Their recording predates the new legislation, but there are fears the law – and the publicity around it – will lead to an increase in such incidents.

Police previously recorded remarks made by Conservative MSP Murdo Fraser in relation to gender identity in this manner. He has called for an apology and full explanation from the force.

Addressing MSPs, Mr Ewing said he would not vote for a Tory motion to repeal the Hate Crime Act. He said: “I do think, however, that there’s a strong case that it should be reformed in many ways.”

The MSP for Inverness and Nairn said non-crime hate incidents were “almost an oxymoron” and referenced his legal training.

He said: "I don’t remember the chapter about non-hate crime incidents. In fact, I don’t remember any chapter about incidents. What are incidents?

"In Scotland, if someone is charged with a crime, they have the right to defend themselves. The right to a fair trial. That is our system. This does not apply to these incidents.”

Mr Ewing questioned when the Scottish Parliament had ever debated such a policy, adding: "I don’t recall it. Is it not even more insidious, actually, that you can have a black mark in your name without even knowing about it?

"I mean, in what sort of democracy are we living in here? I used to read serious novels – I don’t any longer – but I remember reading Franz Kafka, and that’s the name that springs to mind here, because this is not a feature of western democracy where the right to a free trial is a cornerstone, a pillar, of our system.

"It’s an abnegation of that. And why are we tolerating it?”

He described it as a “perversion on our justice system in Scotland”.

Angela Constance, the SNP justice secretary, said she had discussed the policy around non-crime hate incidents with the Scottish Police Authority. She told Mr Ewing she intended to do so again, “because I do accept that clarity on these matters is indeed very important”.