MSP complains to Police Scotland over recording of ‘hate incident’

Tory Murdo Fraser was reported to detectives following a post on X – formerly Twitter – in November.

The post was judged not to constitute a criminal offence, but was reported as a “hate incident”, rather than a hate crime, but the MSP has accused police of breaching the Data Protection Act, the Human Rights Act and the Equality Act.

“Police Scotland has adopted a cavalier and disrespectful attitude towards me and my rights to freedom of expression and privacy, and the right to be informed of false and damaging information held on police records,” he wrote in a letter to the force.

“In doing so, the police acted on the basis of a policy that is disproportionate, discriminatory, intrusive, irrational and otherwise unlawful.

“As I have set out above, Police’s Scotland’s current policy on the recording of hate incidents is not compliant with UK law and its actions in recording a hate incident connected to me is unlawful.”

But a spokeswoman for Police Scotland said it was important to “monitor tensions within communities” and that hate incidents were not logged against perpetrators.

According to the force’s hate crime national guidance (HCNG), a hate incident is “any incident which is perceived by the victim or any other person, to be motivated (wholly or partly) by malice and ill-will towards a social group but which does not constitute a criminal offence (non-crime incident)”.

Mr Fraser urged police to change the guidance and permanently delete the hate incident against him, adding that he would consider legal action.

“I have assiduously pursued all available means of resolving this matter and now reserve all rights to seek the deletion of the hate incident and amendment of the unlawful policy by way of judicial review and/or by way of a civil claim in the sheriff court as applicable,” he said.

The issue comes just days before the controversial Hate Crime and Public Order (Scotland) Act takes effect on April 1.

The legislation has proven controversial in recent years, with opponents questioning its impact on free speech north of the border, although its proponents – including First Minister Humza Yousaf – have said there are sufficient protections in the Act.

Concerns have also been raised about the level of training police have received in how to enforce the legislation and worries that vexatious complaints could be made over political disagreements.

In a video posted to X, Mr Fraser said: “What we’re likely to see is the police being deluged with hundreds, if not thousands, of spurious and vexatious complaints.

“And if they record all these as hate incidents based entirely on the perception of the complainer, they’re likely to be recording many more hate incidents unlawfully and acting against the law.”

He added: “I believe Scotland needs to be a country where free speech and freedom of expression is protected.”

Speaking to journalists on Monday, the First Minister 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 spokeswoman for Police Scotland said: “On Monday November 20 2023, officers received a report of an offensive tweet. Inquiries 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.”