Why Police Scotland should review its non-crime hate incident records
Introduction
Since the commencement of the Hate Crime and Public Order (Scotland) Act, Police Scotland has published weekly statistics on the operation of the Act. The weekly reports also include details of non-crime hate incidents (NCHIs), which are not provided for the in Act, but recorded as a matter of Police Scotland policy.
Prior to this, Police Scotland did not routinely publish data on NCHIs. It told a journalist that the number of NCHIs could be calculated by deducting the number of hate crimes (as published in Police Scotland reports), from the number of all hate incidents. We used that method to calculate the number of recorded NCHIs in this blog.
A recent Freedom of Information response, however, suggests that the numbers are in fact, much higher:
Number of non-crime hate incidents recorded by Police Scotland, 2019 to 2023
| Year | 2019 | 2020 | 2021 | 2022 | 2023 |
|---|---|---|---|---|---|
| No. of NCHIs | 610 | 653 | 871 | 1,077 | 1,292 |
Police Scotland NCHI policy: from perception-based to proportionality
About a month after the commencement of the Act, Police Scotland introduced a new interim policy on recording NCHIs. This superseded National Guidance published in April 2021 and substantially tightened the recording criteria. Whereas the 2021 policy had provided for recording based only a complainant’s perception of ‘hate’, the 2024 interim policy introduced proportionality principles.
2021 Police Scotland National Guidance
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.
Police officers and staff must ensure a hate concern is raised in relation to every hate crime or hate incident reported to police.
2024 Police Scotland Interim Guidance
It is important to note that not all incidents perceived by the reporter as being motivated by hostility or prejudice will meet the threshold for recording a Non-Crime Hate Incident. When an incident is perceived by the reporter to be motivated by hostility or prejudice, then both of the following two principles must apply for the incident to be recorded as a Non-Crime Hate Incident:
- Would a reasonable person consider the report to be motivated by hostility or prejudice towards one or more characteristics protected within the legislation?
- Does it have a policing purpose?
Recording personal details
The 2024 Police Scotland interim guidance also takes a cautious approach to recording the details of those against whom complaints are made. It states:
The use of language is important; when submitting an NCHI Concern… the terms ‘reporter’ and ‘other party’ should be used in the body of the report… When appropriate to record the other party details, they will be recorded as a No Concern/Not Applicable, sub-category ‘other’ nominal on the associated Concern Report.
The other party’s details will not be routinely recorded. They should only be recorded in exceptional circumstances where there is a real risk of significant harm to individuals or groups who are protected by the legislation and/or a real risk that a future criminal offence may be committed against those individuals or groups.
This is in marked contrast to the 2021 Police Scotland policy, which referred to ‘victims’, ‘suspects’ and ‘offenders’ based on the complainants say-so.
We do not know how many NHCIs recorded prior to May 2024 contain the details of ‘other parties’. Based on the figures shown above, it could range from very few to thousands.
Slow on the uptake
The 2021 Police Scotland guidance more or less replicated older College of Policing guidance for police forces in England and Wales, first published in 2014. This was, however, successfully challenged in R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926, which ruled that the 2014 guidance unlawfully interfered with the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
In response to the ruling, in July 2022 the College of Policing issued interim guidance, requiring officers to make to a judgment as to the gravity and validity of complaints, and whether recording was justified, before recording the complaint.
A Home Office statutory Code of Practice on NCHIs followed in 2023, which cemented these principles in law. At the same time, the College of Policing published its final guidance, aligned with the Code of Practice.
The Miller appeal ruling was issued in December 2021, just eight months after Police Scotland issued its own National Guidance.
That it took Police Scotland well over two years to update its policy reflects badly on the service. Nor does it reflect well on the Scottish Police Authority, which was actively involved in scrutinising Police Scotland policy development on hate crime during that period.
Put another way, both organisations allowed a policy – whose direct equivalent in England and Wales was ruled, in a high-profile court case, to have disproportionately interfered with freedom of expression – to continue unchecked.
Conclusion
In May 2024 Police Scotland quietly introduced a significant policy change to its ‘hate incident’ policy. This interim policy can be read as a tacit acknowledgement that its 2021 policy was not proportionate, nor likely to be found lawful, and made Police Scotland vulnerable to legal challenge.
At the same time, Police Scotland still hold the details of thousands of NCHIs recorded under the 2021 policy. For those NCHI records which contain the details of the ‘other party’, it is likely that at least some would not meet the proportionality principles set out in the interim 2024 policy. This particularly matters because as Police Scotland recently conceded, those details may be shared under enhanced disclosure procedures if deemed relevant information.
We think that the Scottish Police Authority needs to assert itself more robustly here, and require that Police Scotland undertake a review of all NCHIs recorded prior to May 2021 and weed out all records that do not meet the criterion in the 2024 interim policy.