‘Hate incidents’ and freedom of expression (updated 10 April 2022)  

Note added 10 April 2022

This blog provides a detailed discussion of police recording practices in Scotland in relation to ‘non-crime hate incidents’. It was originally published on 29 January 2022, taking as its starting point an article published in The Times that day, reporting Nicola Murray’s account of a visit by the police in November 2021. On 2 February, The Times removed the article, stating that Police Scotland had told it that Ms Murray “was not the subject of a complaint or investigation”. Articles repeating material from The Times report remain available at the time of writing on the sites of The Daily Express, The Daily Telegraph, The Daily Record and a range of other UK-based sites. Ms Murray’s original reference to the events which prompted The Times coverage remains published on Twitter.

On 3 February we were contacted by Police Scotland (PS), drawing attention to The Times’ decision, asking us to “remove the post” as it was based on a media report they regarded as “misleading and inaccurate”.

We responded by return seeking clarification of the three central factual points. These were: whether the Brodies Trust statement had been drawn to the attention of PS; whether officers had raised it with Ms Murray; and whether an entry had been made on PS systems logging non-crime hate incidents. A reply received on 4 February failed to address these questions directly, so we asked again that day. We noted to PS on 9 February that no reply had been received. We wrote again to them on 11 February (by registered letter) seeking a response and again by email on 16 March, at which point we complained about the lack of response.

As PS had described the reporting in The Times as “misleading and inaccurate” from 3 February onwards and had been able to acknowledge on 4 February that there had been some discussion of the statement (telling us, “The “We don’t want to be quoted as police officers saying such and such” line carried in The Times article is consistent with our understanding of the officers’ position on entering into discussion around the ERCC matters”), we were surprised to be told on 21 March that the delay was due to PS still not being in a position to answer our questions.

We were finally told by PS in an email on 24 March it could confirm that “the Trust’s statement was not drawn to the attention of Police Scotland and that the officers were unaware of it when they visited the address. I can also confirm they did not raise the matter.”  Although this response would appear logically to imply that there should not be an entry on the PS database of non-crime hate incidents, which is the subject of the blog, PS declined to respond to that question, citing data protection.

We are not in a position to adjudicate between conflicting accounts of events. In our view, while several major new sites continue to carry reports we are entitled to quote them. We have therefore amended the blog to refer instead to the story still being carried by The Daily Express, qualified two later references to Ms Murray as being “reported” and have also added this opening account of exchanges with PS for context.

We have from the start rejected the request to take the blog down in its entirety as an infringement of our rights under Article 10 of the ECHR: the blog refers to the report concerning Ms Murray only as a starting point for its detailed discussion of police recording practice. That request has now been revoked. We are seeking an apology for it being made. 

In its most recent email, PS added “Should you consider you would wish to make changes to the blog following this update, I would be grateful to understand what they might be and thereafter confirm that those changes satisfy our initial request”.

We are not clear under what powers that request is being made. We have therefore simply notified PS of the addition of this opening text and of the changes to the opening paragraph. We have also asked which other publishers have been asked to take down material.

Blog text as amended

In November 2021 two police officers arrived at the home of Nicola Murray, the founder of a charity that supports women who have suffered pregnancy loss through domestic violence or forced termination. According to The Daily Express:

Nicola Murray, from Stanley in Perthshire, was visited by officers after she said her charity, Brodie’s Trust, would no longer refer women to the Edinburgh Rape Crisis Centre (ERCC).

It came after ERCC’s CEO Mridul Wadhwa branded some victims of sexual violence “bigoted” and claimed opponents to controversial reforms to the Gender Recognition Act risked adding legitimacy to far-right hatred of trans people.

In a statement, Brodie’s Trust said: “We remain a female-only service, run by women for women and will not be intimidated into changing our stance on this matter, considering our support group is for those who’ve experienced pregnancy loss through domestic abuse.”

Ms Murray said the officers told her they wanted to speak to her to “ascertain what your thinking was behind making your statement”.

The Daily Express, 1 February 2022

Assistant Chief Constable Gary Ritchie was reported as saying in response to a media inquiry about the visit: ‘Hate crime and discrimination of any kind is deplorable and entirely unacceptable. Police Scotland will investigate every report of a hate crime or hate incident.’

This blog takes these reported events as the starting point to examine recent rulings on freedom of expression, the current debate on sex and gender identity, and the Hate Crime and Public Order (Scotland) Act 2021. The analysis raises questions about recorded hate ‘incidents’ in Scotland, where no evidence of criminality is found, a lack of clear guidance for officers, and the retention of people’s details on the Police Scotland interim Vulnerable Persons Database (iVPD).

We argue that the Miller v College of Policing judgement, the judgement in Forstater v CGD Europe & others, which found that a lack of belief in gender identity is protected under the Equality Act 2010, and related ECHR and Human Rights Act considerations need to be incorporated into Police Scotland policy, and relatedly, that urgent consideration is given to handling unfounded complaints. To this aim, we suggest that Police Scotland establish a specialist team, with a strong handle on the law in relation to freedom of speech, as well as the current debate on sex and gender identity, to screen any reported incidents involving allegations where criminality and/or prejudice are not clear.

Miller v College of Policing

In December 2021, the Court of Appeal ruled that College of Policing (CoP) guidance on recording ‘hate incidents’ unlawfully interfered with the right to freedom of expression, as protected by Article 10 of the European Convention on Human Rights. The CoP guidance required police forces in England and Wales to record incidents perceived to be ‘motivated by a hostility or prejudice against a person’, where no criminality is established, as ‘non-crime hate incidents’, irrespective of any evidence of ‘hate’ (for further background see this Sex-Matters summary).    

The Appeal judge, Dame Victoria Sharp, stated:

‘the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate’.

Para. 73

Following the original judgement under appeal, the CoP had revised its guidance to include a stronger warning against police taking a disproportionate response to reports of a non-hate crime incident, a link to the judgment under appeal and detailed further guidance on how police should contact people ‘accused’ of non-crime hate incidents. In response to the revised guidance, Judge Sharp stated:

These revisions (with their greater emphasis on proportionality) appear to be designed to meet the criticisms made of the police conduct in this case, and it could be said that at the very least they demonstrate there was scope for less intrusive measures. But in my opinion they do not go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally. The position is therefore that less intrusive measures could be used to achieve the legitimate aims of such recording, without unacceptably compromising the achievement of those aims. That is not to say that perception-based recording of non-crime incidents is per se unlawful, but that some additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary. (Emphasis added).

Para. 122 (emphasis added)

Police Scotland ‘hate incidents’ policy

Ms Murray’s experiences as reported highlight similar issues to those in Miller v College of Policing, and raise questions about Police Scotland policy, which remains unchanged since the Court of Appeal ruling.

Like the CoP, Police Scotland record hate incidents on a perception basis, which are defined in the following terms:

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)….

For recording purposes, the perception of the victim or any other person is the defining factor in determining whether an incident is a hate incident or in recognising the malice element of a crime. The perception of the victim should always be explored, however they do not have to justify or provide evidence of their belief and police officers or staff members should not directly challenge this perception. Evidence of malice and ill-will is not required for a hate crime or hate incident to be recorded and thereafter investigated as a hate crime or hate incident by police.

Police Scotland, Hate Crime National Guidance (p. 2)

The rationale for recording incidents that do not meet the threshold for criminality is as follows:

While it is accepted that not every hate report will amount to criminality, officers are required to take preventative and protective measures even when a non-criminal offence is apparent. Seemingly low level or minor events may in fact have a significant impact on the victim. Crime type alone does not necessarily dictate impact or consequences of the action. Repeated targeting of a person, whether by the same perpetrator or not, can lead to what is known as the ‘drip drip’ effect i.e. although seemingly minor incidents, the repeated nature could affect the person’s ability to cope. Each individual will be affected differently.

Ibid.

The current policy falls well short of the revised CoP guidance – which was judged inadequate in the Court of Appeal – in relation to freedom of expression, which is only discussed in relation to public order events. There is no discussion of safeguards to ensure that any restriction placed on freedom of expression is proportionate. Given that the latest iteration of the policy (April 2021) coincides with the passing of the highly controversial Hate Crime and Public Order (Scotland) Act 2021, this omission is surprising.

Hate incidents are recorded on the Police Scotland interim Vulnerable Persons Database (iVPD).

‘there will be occasions when incidents occur and a crime is not established, but the incident itself is perceived to have been motived by hate or prejudice. Such incidents will be recorded as a hate incident on STORM and on the Interim Vulnerable Database (iVPD).’

HMICS: 2021: para. 115

The iVPD retains information in relation to a range of concerns, in addition to hate concerns. These include child concerns, domestic abuse, adult concerns, and youth offending. Police Scotland describe iVPD reports as ‘a formal record of Police contact with adults, children and young people experiencing individual and/or situational vulnerabilities’ (see Q.9).

Not all entries relate to wellbeing or protection concerns. For example, the iVPD is also used to record victims’ rights under Section 8 and 9 of the Victims and Witnesses (Scotland) Act, 2014 (relating to the ‘gender’ of interviewers and medical examiners), and details of perpetrators linked to an incident (see Q.11).

Hate incidents recorded on the iVPD may be disclosed under an enhanced criminal records check, although a Freedom of Information response shows that Police Scotland are unable to provide any indication of how many such disclosures have been made.   

Following a direction from the Information Commissioners Office, in 2020 Police Scotland removed nearly half a million records from the iVPD and introduced a weeding and retention policy. A snapshot taken on 31 December 2020 found that the iVPD recorded details on 803,985 individuals.  

Hate incident reporting in Scotland

The scale of ‘hate incident’ reporting in Scotland exceeds that of hate crimes (note: we understand that cases are recorded either as incidents or crimes, but in the published data it is not clear that there is no duplicate recording). Table 1 shows that Police Scotland recorded 7,020 hate incidents in 2020/21, compared to 6,701 hate crimes; and 6,763 incidents in 2019/20, compared to 6,452 hate crimes. Compared to the five year average, the number of hate incidents recorded in 2020/21 increased more than the number of hate crimes, at 7.6% and 1.8% respectively. 

Table 1. Hate incidents and hate crimes, 2019/20, 2020/21

Number of hate crimes or incidents	2019/20	2020/21	% Change from previous year	5 year mean	% Change from 5 Year Mean
Incidents	6,763	7,020	+3.8%	6,521.6	+7.6%
Crimes	6,452	6,701	+3.9%	6,579.8	+1.8%

UPDATE (30 January 2022)
We have located a Freedom of Information response which presents snapshot data on hate Incidents recorded on the iVPD that did not result in a crime. These numbers indicate that the hate incident and hate crime data presented by Police Scotland above are not exclusive categories. They also show a sharp increase in the number of incidents that were recorded but deemed not to involve a crime, which have nearly doubled in the last five years, from 460 in 2017, to 861 in 2021 (as of 14 December 2021).

The number of non-crime hate incidents is likely to reflect both recording policy (whereby all incidents are logged irrespective of evidence) as well as the subjective nature of what is considered ‘hate’. In February 2020, Police Scotland told the Times newspaper: “An offensive joke may be reported by someone, but not amount to any criminality, so we would log this as a hate incident.”

Sex and gender identity

A lack of any objective recording criteira for incident recording is directly relevant to the current debate on sex and gender identity. During the passage of the Hate Crime and Public Order Bill, we and others provided extensive evidence to show how low the threshold for ‘hate’ is, specifically in relation to transgender identity. We demonstrated how it can be deemed hateful or transphobic to advocate for female-only spaces and services, or to collect data on biological sex, and showed that women across the UK had faced serious consequences for asserting that biological sex matters: that they have lost their jobs, faced disciplinary action, had been been interviewed by the police and had their details recorded on police databases.

Ms Murray’s reported experiences are a case in point. They underscore how, in failing to clarify what is abusive in relation to sex and gender identity, MSPs have given added impetus to unfounded or vexatious complaints. This situation, which is felt at the early stages of the criminal justice process, is likely to be compounded when the Act comes into force, and can be expected to reinforce the self-censorship and institutional caution that is already evident in this area.

Next steps

Against this backdrop, the impetus now falls on Police Scotland to put in place a much more robust policy that takes into account the Miller judgement, the judgement in Forstater v CGD Europe & others, which found that a lack of belief in gender identity is protected under the Equality Act 2010, and related ECHR and Human Rights Act considerations. The Scottish Parliament chose to delegate this responsibility, in its entirety, to Police Scotland. An undertaking made in March 2021 to the Scottish Parliament by the then Cabinet Secretary, Humza Yousaf MSP, that the Scottish Government would engage with various interested groups to produce clarifying Explanatory Notes to the Act, remains unactioned. All this is no doubt a matter of source of frustration to an overstretched service, and to those frontline officers on the sharp end of dealing with complaints.   

Work on hate crime policy is already underway. In June 2021 a critical HMICS thematic inspection on hate crime highlighted a range of issues, including lack of training on hate crime. Last year we submitted a Freedom of Information request to Police Scotland asking for details of all training (by any organisation) given to police officers in Scotland since 2016 on issues relating to Article 10 of the European Convention on Human Rights (ECHR), and more generally on the right to freedom of expression. The response showed that Police Scotland provide only one training course to officers on issues relating to Article 10 of the ECHR, which only 45 officers had attended since 2016. The HMICS inspection also notes that this training (which is currently being updated) was specific to balancing human rights in the context of public gatherings, events or protests.  

In response to the HMICS inspection, Police Scotland developed a Hate Crime Improvement Plan (still in progress) and established a strategic hate crime oversight group to support its delivery. 

In addition to the HMICS recommendations, we think that recorded non-crime hate incidents also merit further investigation, to better understand the types of encounters and vulnerabilities held on record, to ensure that any retained records fully take into account freedom of expression considerations, and to address related training needs that arise.

In the current climate, we also think that urgent consideration needs to be given to the handling of complaints, to distinguish incidents where there is no evidence of prejudice, from incidents where prejudice is apparent but criminality is not established.[1] This matters because a low bar for investigation, coupled with disagreement as to what is considered ‘hateful’, risks drawing people unreasonably into the criminal justice system.

To this aim, we suggest that any reported incidents involving allegations where criminality and/or prejudice are not clear, are subject to an initial screening from a specialist team, with a strong handle on issues of free speech, including the complex debates currently playing out in relation to sex and gender identity.

A specialist team would be ideally placed to address the issues discussed herein, to advise on cases under existing aggravators where no clear precedent or case law is available, and to weed out complaints that may be unfounded or vexatious at the outset, to avoid unnecessarily drawing people into the criminal justice system, which in the context of the debate on sex and gender identity, is likely to disproportionately affect women.

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Notes

[1] The Scottish Crime Recording Standard gives the following example of the latter: “A person reports that children have been knocking at their door and running off which is causing annoyance and is perceived by them to be due to their ethnicity.This is a hate incident due to the circumstances not amounting to a crime but being perceived by the complainer as being racially motivated.” (2020; 417)

What happens when a hate crime is reported to the police?

“When a member of the public contacts the police to report an incident (or if a police officer is witness to an incident) the information is logged on Police Scotland’s System for Tasking and Operational Resource Management (STORM) – this is Police Scotland’s national command and control system.

STORM is largely used for resource allocation purposes. Depending on the information supplied and the outcome of additional enquiries, the incident may result in the creation of one or more crime reports on the relevant crime management system (CMS). If a crime report includes a hate element then the relevant aggravator(s) (i.e. disability, race, religion, sexual orientation and/or transgender identity) will also be highlighted on the crime report.

If the incident is assessed to have a hate element, a record should also be added to Police Scotland’s Interim Vulnerable Persons Database (IVPD). The purpose of the IVPD is to ensure that any concerns for the victim, or any other person (subjects of concern), are assessed and the appropriate action taken. The IVPD is Police Scotland’s national database for recording all hate-related information, allowing them to enhance understanding of the extent of hate-related activity across the country. It enables identification of repeat victims and offenders and allows for a holistic assessment of wellbeing concerns and needs which influence multi-agency investigations, interventions and support.”

Scottish Government (2021: 7) A Study into the Characteristics of Police Recorded Hate Crime in Scotland

Scottish Crime Recording Standards: Hate Incidents/Crime and Aggravators/Markers

Hate Incidents

There will be occasions when incidents occur where no crime has been committed but the incident itself is perceived to have been motivated due to hate or prejudice.  In such cases these incidents will be recorded as hate incidents.

The use of apparently ‘hate’ language is not sufficient to prove a hate crime, There must also be evidence that an offender’s behaviour has been motivated by prejudice and is not simply an inappropriate use of language.

Perception

In terms of the perception element consideration must be given to:

• Who perceived the circumstances to amount to being a hate incident/crime.
• Why it was perceived to be a hate incident/crime.

Hate Crimes

A Hate crime is defined as ‘A crime motivated by malice or ill-will towards a social group’. Key aspects of hate crime are as follows:-

• There must be active ill will or elements of vindictive feelings towards an individual or their perceived association with a social group.
• The crime is based on the motivation of malice or ill will towards a social group.  This means the question of whether the victim of a hate crime actually belongs to a social group or not, is irrelevant.  For example, if someone is the victim of a homophobic attack, whether they are gay or not is irrelevant.
• An individual may be targeted because of their vulnerability.  This should not be automatically interpreted as hate crime. For example, an elderly female who is assaulted and robbed may have been targeted because she is vulnerable, as opposed to being targeted due to ill will or malice towards her belonging to a specific social group.
• If a crime is perceived to be a hate crime by the victim or any other person, including a police officer, it should be recorded and investigated as such.
• Statutory legislation exists which creates an aggravation of any criminal offence against a person or their property when motivated wholly or part by an offender’s hatred of someone because of their perceived:- [Disability; Transgender Identity; Race, Colour, Ethnic Origin, Nationality or National Origin; Religion or Belief; Sexual Orientation] (2020: 45-46)