This week, England’s Court of Appeal ruled that police guidance on the recording of “non-crime hate incidents” unlawfully interferes with free expression. In light of this, it’s worth looking at the situation in Scotland. Police Scotland also records such incidents. “Hate Incidents” are defined as any “non-crime” incident that is “perceived by the victim or any other person to be ‘motivated (wholly or partly) by malice or ill-will towards a social group”. No evidence is required for such incidents to be recorded and they will be held on file for 6 years. See here.
Scotland’s Hate Incident framework is as broad as those operated (unlawfully) south of the border. In practice, it covers any comment about a protected group considered offensive to any other person. The video below shows a police officer in Scotland confirming that this is the case. Under the Police Scotland framework, seemingly innocuous statements on contentious issues like gender recognition reform or religion fall within scope. The risks associated with this approach in our febrile political climate are obvious.
In 2020, The Times reported that Police Scotland had logged more than 3,300 Hate Incidents, including offensive jokes. Rachael Jolley, then head of Index on Censorship, warned: “Speech that breaks no law is being investigated in a way that stifles people’s freedom to express themselves. Human rights include our right to have opinions, and sometimes those may be upsetting to others, but in a free and open and healthy society we must be able to express opinions that others disagree with”.
Civil liberties groups worry that the whole concept of ‘non-crime’ Hate Incident recording creates a chilling effect in wider society. If citizens think commenting on certain social issues could see them blacklisted by the police, they will self-censor. Public debate is thereby undermined. They also worry that people reported for ‘non crime’ incidents will struggle to find work as information could appear on disclosure checks and be handed to employers. In Scotland, an Enhanced Disclosure check includes all “relevant information” held by police.
These concerns were raised in the case against English police recording of non-crime hate incidents brought by Harry Miller, who was logged as committing a hate incident after he posted an offensive joke online. And they were vindicated. The Court of Appeal ruling said English police guidance on hate incident recording is leading to an unjustified interference with free expression. It cited disclosure of incidents through DBS checks as a problem, and criticised a “lack of any ‘common-sense’ discretion not to record irrational complaints”.
All of these concerns are transferable to the Scottish context. The Police Scotland framework chills free speech, it appears to allow disclosure to employers, and it instructs officers to respond to “seemingly low level or minor events”. Incidents that could be described as trivial or irrational are being logged by officers, no questions asked. The Scottish system has all the hallmarks of disproportionality the Court of Appeal ruling condemned in English recording.
Police Scotland would do well to take the Court of Appeal judgment on board and review its own Hate Incident framework in light of it. Otherwise it may face similar legal action through the Scottish courts.