Murdo Fraser accuses police of 'unlawful' behaviour after tweet recorded as 'hate incident'

A Tory MSP has accused Police Scotland of “unlawful” behaviour after being logged for committing a hate incident.

A Conservative MSP has demanded Police Scotland end investigating every hate incident it receives after he was reported and logged by officers for his criticism of Scottish Government policy.

Scottish Tory MSP Murdo Fraser has threatened Police Scotland with legal action after his criticism of the transgender policy was logged as a “hate incident” by the force. Mr Fraser has been told that his name appears in police records for expressing his view about the Scottish Government’s transgender policy even though no crime was committed.

On November 18 last year, Mr Fraser shared a column written by Susan Dalgety for The Scotsman, which claimed the Scottish Government’s non-binary equality action plan would lead to children being “damaged by this cult”.

Murdo Fraser has criticised the practice of recording every incident (Picture: Jane Barlow/PA Wire)

Commenting on the shared post, Mr Fraser said: “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.”

Mr Fraser has told The Scotsman that Police Scotland should redraw its policy to record all “hate incidents” ahead of the new hate crime legislation coming into force next month, which he also believes should be scrapped. A legal challenge south of the Border has meant officers in England and Wales no longer record incidents that are malicious or trivial. Under Police Scotland policy, officers are required to record all hate incident reports, even if there is no evidence of a crime.

The law, which comes into force on April 1, will create new stirring up of hatred offences for protected characteristics including age, disability, religion, sexual orientation and transgender identity. These extra provisions will add to the long-standing stirring up racial hatred offences, which have been in place since 1986. Under the law, offences are considered "aggravated" if they are motivated by prejudice on the basis of set characteristics, which could influence sentencing by judges. Crucially, a criminal act must have occurred for the hate crimes aggravator to be applied.

Murdo Fraser MSP, Scottish Conservative Finance spokesperson, speaking in the chamber of the Scottish Parliament, Edinburgh during the debate on the Scottish Government's draft spending and tax plans for 2019-20. 12 December 2018. Pic - Andrew Cowan/Scottish Parliament

Mr Fraser is now threatening legal action against Police Scotland to have the incident deleted and its hate crime policy updated, with the support of the Free Speech Union (FSU).

He said: “Police Scotland has behaved not just outrageously, but unlawfully according to the legal advice obtained by the Free Speech Union.

“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. Police in England and Wales have torn up their policy on recording non-criminal hate incidents, but Police Scotland have not done that.

“It is also grossly discourteous of the Chief Constable not to have responded personally to my letter in December. “When the new hate crime legislation is enforced from April 1, police are going to be inundated with complaints – and many of them will be as baseless as the one directed at me.

“Police Scotland have said that they will investigate every complaint they receive – but at the same time they admit they don’t have the resources to investigate minor crime and are severely overstretched. Potentially there will be thousands of ‘hate incidents’ unlawfully recorded if Police Scotland don’t change their policy.”

Mr Fraser told The Scotsman that Police Scotland need to have a rethink of their policy in light of his treatment.

He said: “It’s deeply alarming that Police Scotland are promising to assiduously investigate every potential hate incident reported to them once the act comes into force – for two reasons.

“Firstly, many of the complaints reported – I suspect most of them – will be spurious and vexatious, like the one made against me. Secondly, because of its impact on police resources at a time when officer numbers are at their lowest level since 2008 and Police Scotland have already said they can’t or won’t investigate all crimes.”

Mr Fraser added: “I realise it’s Police Scotland’s job to enforce the law, but there has to be proportionality, common sense and prioritisation when it comes to tackling crime. This blanket approach of investigating every hate crime allegation no matter how preposterous, has to stop. But, ultimately, it’s this rotten SNP law which has to go.”

SNP MP Joanna Cherry said that she would “support him fully in this legal action”. Writing on X, formerly known as Twitter, Ms Cherry added: “Police Scotland are well aware that their policy of recording “‘non-crime hate incidents’ needs reviewed. This McCarthyism needs to stop.”

Speaking to journalists on Monday, First Minister Humza Yousaf said the recording of hate incidents which do not meet the criminal threshold was “important” to understand if there was a rise in hate in Scotland, adding that he has “every confidence” in Police Scotland.

A Police Scotland spokeswoman said: “On Monday, 20 November, 2023, officers received a report of an offensive tweet. Enquiries were carried out and no criminality was established. The incident was recorded as a non-crime hate incident. Police Scotland have received a complaint relating to this matter which has been passed to the Professional Standards Department for assessment.

"Hate incidents are not recorded against alleged perpetrators. Recording is victim-focused and the process has been part of policing for many years. It helps us monitor tensions within communities enabling appropriate police responses and helps to build community confidence. Seemingly low level or minor events can have a significant impact on someone who may already be very vulnerable."