He says, she says. How Police Scotland policy risks weaponising hate crime

This blog looks at how Non-Crime Hate Incidents (NCHIs) are handled in Scotland, how this differs to police forces in England and Wales, and potential implications for the Hate Crime and Public Order (Scotland) Act 2021, which is expected to come into force in April.

Recording NCHIs in Scotland

As a matter of policy, Police Scotland record all NCHIs. These are defined as incidents ‘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’.  As the policy explains, the complainant’s perception is the ‘defining factor’.

Perception-based recording

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.

The alleged actions of the perpetrator must amount to a crime under Scottish Crime Recording Standard (SCRS) rules. If this is the case, the perception of the victim, or any other person, will decide whether the crime is recorded as a hate crime. If the facts do not identify a recordable crime but the victim perceives it to be a hate crime, the circumstances will be recorded as a hate incident (non- crime incident).

Police Scotland, 2021: 4

Because the policy is based on the complainant’s perception, complainants are viewed as ‘victims’, irrespective of any evidence of a criminal offence.

NCHIs are recorded on the Police Scotland Vulnerable Persons Database (VPD), which is incident based, and retains information in relation to a range of concerns. In respect of NCHIs, the record should detail a ‘synopsis of the incident and all known nominals’ (with some exceptions for young people & children). This information may be subject to disclosure under an enhanced criminal records check.

The current Police Scotland policy broadly mirrors the older guidance published by the College of Policing in 2014 (known as Authorised Professional Practice, or APP), which was similarly based on complainant perception.  

1.2.3 Perception-based recording of hate crime
For recording purposes, the perception of the victim, or any other person (see 1.2.4 Other person), is the defining factor in determining whether an incident is a hate incident, or in recognising the hostility element of a hate crime. The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required for an incident or crime to be recorded as a hate crime or hate incident.

Crimes and incidents must be correctly recorded if the police are to meet the objective of reducing under-reporting and improve understanding of the nature of hate crime. The alleged actions of the perpetrator must amount to a crime under normal crime recording rules. If this is the case, the perception of the victim, or any other person, will decide whether the crime is recorded as a hate crime. If the facts do not identify any recordable crime but the victim perceived it to be a hate crime, the circumstances should be recorded as a non-crime hate incident and not a hate crime.

It is necessary to provide sufficient evidence for the prosecution to prove hostility to the court for a conviction to receive enhanced sentencing, however, this is not required for recording purposes.

College of Policing, 2014

This overlap is not surprising. As noted in the HM Inspectorate of Constabulary in Scotland Thematic Inspection of Hate Crime, Police Scotland adopts College of Policing APP across a range of business areas.

HMICS has previously commented on the value provided by the College of Policing (England and Wales) in establishing Authorised Professional Practice (APP) across a range of policing activities and consider that the creation of national standards is essential to support interoperability and mutual aid across the United Kingdom. Police Scotland already adopts College of Policing APP for numerous areas of business. In October 2020 the College of Policing published APP guidance on hate crime.

HMICS 2021: 32

Harry Miller v College of Policing

The 2014 College of Policing APP was, however, challenged in Harry Miller v The College of Policing and The Chief Constable of Humberside 2020, and in the subsequent appeal (Miller v College of Policing 2021).¹ Mr Miller had posted several tweets which a member of the public had complained were “transphobic”. Humberside Police recorded this as a “non-crime hate incident” and warned Mr Miller that he may face criminal prosecution if he continued to post similar tweets. In the first case, the judge ruled Humberside Police had disproportionately interfered with the rights of free speech of Mr Miller.

The appeal focused on the 2014 College of Policing guidance, as followed by Humberside Police. The Miller appeal ruling (both successful and unsuccessful grounds) is summarised here.

Whilst awaiting the outcome of the appeal, in a striking turn of phrase, the Interim College of Police CEO told the National Police Chief Council that there is ‘widespread concern the Hate Crime Operational Guidance has been weaponised’ (O’Reilly, 2021: 46).

The appeal judge ruled that perception-based recording of NCHIs per was not unlawful per se; but additional safeguards were needed for the incursion into freedom of expression to be no more than strictly necessary.

In response, in July 2022 the College of Policing issued interim guidance on recording NCHIs. Departing from the previous perception-based approach, this required officers to make to a judgment as to the gravity & validity of complaints, and whether recording was justified, before taking recording the complaint. 

What about Scotland?

Police Scotland guidance on NHCIs clearly exposed the single service to the same challenges and risks as the College of Policing. Sometime after the appeal judgement, Police Scotland therefore approved a recommendation to adopt the College of Policing interim guidance. It reported this decision in its Quarter 2 Performance Report for April to Sept 2023, as presented to the Scottish Police Authority on 6 December 2023. It appears from this that Police Scotland had done little to take the decision forward in practice.

Recording of non-crime hate incidents
The recommendation to adopt the College of Policing interim guidance on the recording of non-crime hate incidents has been approved. Police Scotland are reviewing the guidance and training to identify impact to Police Scotland. Due to timescales this is unable to be done in conjunction with the Hate Crime and Public Order Legislation training. A further training/guidance will be developed in due course.

Police Scotland, 2023a: 72

By December 2023, events had in any event moved on further in England. In June 2023, the Home Secretary had issued a Statutory Code of Practice on recording NCHIs, with new accompanying APP published by the College of Policing, aligning with the Code, that replaced the interim guidance.

The Statutory Code of Practice in England and Wales formalises the interim guidance, bedding in its sea change in how police forces respond to complaints about hate.

Building on the principles in the interim guidance, the Code expects officers to weigh up the gravity of any complaint and only record when deemed proportionate. It confirms that the word of a complainant should not be taken at face value, nor should people be treated as victims by default.  The Code and College of Policing APP has multiple examples to show what should not be recorded. For example:

In an online social media post, an individual (the subject) expresses their belief that a person’s biological sex is more important than self-identified gender, and that biological sex should be prioritised when decisions are made about access to single-sex spaces. The post is not directed at any individual. However, another individual (the complainant) believes it to be transphobic and reports it to the police.

The reviewing officer assesses that the perception of hostility is irrational. The expression of a view that conflicts with those of other people is not an indication of hostility without further evidence.

The subject’s views are an example of a person exercising their freedom of expression to outline a personally held belief and a reasonable person would accept the discussion as a contribution to a lawful debate, even if they found it offensive or disagreed with it.

An NCHI is not recorded, and the personal data of the subject is not recorded. The personal data of the subject (in the form of the subject’s social media handle) that was initially recorded by the call taker is also removed from the policing system.

College of Policing, 2023

That Police Scotland was lagging on all these developments was quietly acknowledged in a separate report, also presented to the Scottish Police Authority on 6 December 2023, which noted that Police Scotland now needed to review the full APP guidance, as based on the Code.  

PPCW [Partnerships, Prevention and Community Wellbeing] briefing paper that was submitted to the PTCG recommending to adopt the College of Policing interim guidance on the recording of non-crime hate incidents was approved. Shortly after this, College of Policing issued their full guidance and training which requires further review to identify impact to Police Scotland. As such the SLWG will reconvene to review. Any new processes require to be updated and officers trained. Due to timescales this is unable to be done in conjunction with the HCPOA training. A further training/guidance will be developed in due course.

Police Scotland, 2023b: 36

Based on the above, it appears that Police Scotland is still only at the stage of reviewing the Code, and that training related to it will not be in place before the expected implementation of the Hate Crime and Public Order Act.

What does the delay in Scotland mean?

At the time of writing, the threshold for recording NCHIs in Scotland remains virtually non-existent. There are no safeguards against the negative effects of over-recording, as now recognised by the College of Policing and in the Statutory Code.

The delay in responding to developments in England, which in turn flow from the judgment in the Miller appeal, matters on several counts.

Firstly, the police in Scotland still have an operational culture of accepting ‘hate’ complaints at face value, even if not deemed criminal, and of treating complainants as ‘victims’ by default.  In this respect, it is vulnerable to the ‘weaponising’ of hate crime, as described by the College of Policing Interim CEO.

Second, the current Police Scotland guidance remains vulnerable to a challenge under Article 10, just as happened to the College of Policing. The same is true of any investigation or disproportionate recording of personal details, based on the guidance, as happened to Humberside Police.

In particular, the guidance matters because of the imminent Hate Crime and Public Order Act, which provides for the offence of stirring up hatred on the basis of transgender identity.

This is based on a test as to whether a reasonable person would find the behaviour ‘threatening’ or ‘abusive’, and an assessment that it was intended to stir up hate. The interpretation that front-line police officers place on ‘abusive’  and ‘hate’ will therefore be critical to how widely the net is cast, in the initial recording and investigating of incidents.

The Act provides for a defence based on protecting rights under Article 10 ECHR (freedom of expression), but this is phrased in very general terms and only applies once a person has been assessed as potentially having committed the offence. It does not of itself provide overt protection from initial investigation and recording, based on a low threshold for defining ‘abusive’ and ‘hate’.

Neither Police Scotland nor the Scottish Government have provided any details or reassurance on how it will protect freedom of expression in this context.

Unless Police Scotland brings its NCHI policy up-to-date, officers will be working to two different criteria. For the Hate Crime Act, officers will be required to exercise discretion in a new way, judging what a ‘reasonable person’ would regard as abusive, as well as assessing ‘hateful’ intention themselves. It is not known what guidance they have been given on this. By contrast, the established NCHI policy, which officers are used to working with, tells them what counts as abusive and should be recorded as hateful is based simply on a person’s ‘say so’.

In short, even though the Hate Crime and Public Order (Scotland) Act, by definition recognises a distinction between ‘reasonable’ persons, and those who are not, in their perception of ‘abusive’ behaviour, the existing policy in effect requires officers to regard all complainants as making valid complaints.

This is a clear conflict, that needs to be resolved ahead of the Act commencing. If, instead, officers on the ground approach complaints of stirring up drawing on the perception-based approach they are used to using for NCHIs, the grounds and incentive for challenge will be even stronger than in Miller; because stirring up, unlike NCHIs, threatens criminal penalties.

¹ The 2020 College of Policing guidance referred to by HMICS was initially published in response to the Miller case. The judge deemed that it still provided inadequate protection. The Miller case is not discussed in the HMICS report.