A Scottish Conservative MSP is threatening to take Police Scotland to court after the force recorded a “hate incident” against him.
Murdo Fraser said it was “outrageous” that officers have kept a recording of a hate claim about him despite concluding that he did not commit a crime.
The Mid Scotland and Fife MSP said he was reported to police after criticising the Scottish Government’s policy on gender.
The Tory politician compared identifying as non-binary to identifying “as a cat” in response to the Government’s Non-Binary Equality Action Plan.
He said while officers decided the tweet had not broken any laws it would remain on record as a hate incident “in line with national guidance”.
Fraser said he had lodged a formal complaint about the Hate Crime National Guidance 2021 and the conduct of Police Scotland.
A complaint was also submitted to the Ethical Standards Commissioner of the Scottish Parliament but was dismissed.
The MSP has described Police Scotland’s actions as “outrageous”.
He said that after legal advice from the Free Speech Union, he believes the force is in breach of three different laws.
These include the Human Rights Act of 1998 which protects privacy and free speech, the Data Protection Act of 2018 and the Equality Act of 2010, which deems “philosophical belief” as a protected characteristic.
Fraser said he wants the national guidance on recording hate incidents scrapped and for his own hate incident recording to be deleted.
‘Police Scotland is attacking free speech’
He said: “Police Scotland has behaved not just outrageously but unlawfully according to the legal advice obtained by the Free Speech Union.
“This is Police Scotland attacking free speech – but it is more sinister than that.
“My tweet wasn’t pointing a finger at an individual – it was critical of a Scottish Government policy.
“If police are now treating criticism of SNP policy as hate incidents that is a really serious issue as it shows how Police Scotland has been captured by the SNP policy agenda.
“Police in England and Wales have torn up their policy on recording non-criminal hate incidents but Police Scotland have not done that.”
It comes ahead of new hate crime legislation that comes into force in Scotland on April 1.
The Hate Crime and Public Order (Scotland) Act was passed by MSPs in 2020, creating a new offence of stirring up hatred based on protected characteristics – matching a similar offence of race already on the statute book.
Fraser claimed the new law would lead to the police being “inundated” with “baseless” complaints.
“Potentially there will be thousands of ‘hate incidents’ unlawfully recorded if Police Scotland don’t change their policy,” he added.
A spokesperson for Police Scotland said it was victim-recording was important to “monitor tensions within communities” and that hate incidents were not logged against perpetrators.
Speaking to STV News on Monday, First Minister Humza Yousaf said he supported police recording non-crime hate incidents.
“It’s important that they are recorded because what it does is it gives police an idea of where there might be spikes in hatred,” he said.
“That behaviour might not be criminal but they can then see a pattern, be it in a particular geography or be it in particular parts of the country, and they can see any patterns that might be emerging.
“Hate crime incidents have for many years been recorded and no one has raised any issues with them previously.”
The SNP leader said it is a matter for Police Scotland to decide how these incidents are recorded but said, “no one should be worried about criticising government policy, insulting government, offending government if they want”.
Yousaf previously defended his government’s new hate crime legislation, accusing political opponents and media outlets of spreading disinformation about the bill.
He told Holyrood last week: “If I have the protection against somebody stirring up hatred because of my race – and that has been the case since 1986 – why on earth should these protections not exist for someone because of their sexuality, or disability, or their religion?”
A Police Scotland spokesperson said: “On Monday, November 20, 2023, officers received a report of an offensive tweet. Enquiries 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.”
A Scottish Government spokesperson said: “In the same way as other police forces across the UK, Police Scotland record non-crime hate incidents to monitor the impact of incidents on victims both as individuals and as communities and to inform policing approaches.
“These arrangements have been in place for many years and are entirely separate from hate crime legislation.
“The Hate Crime Act will help to tackle the harm caused by hatred and prejudice and provide greater protections for victims and communities. The right to freedom of expression is built into the legislation and there is a high threshold for criminality.”
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