Freedom of expression is under threat in Scotland with police recording a growing number of “hate incidents” where no crime has been committed, a censorship watchdog has warned.
Index on Censorship said “robust debate” was being stifled by Police Scotland’s increasing focus on “non-crime hate incidents”. Recording of “non-crimes” is on the rise in Scotland despite a Court of Appeal ruling for England and Wales that said they had a “chilling effect” on freedom of expression.
One High Court judge said the practice had parallels with the Gestapo and Stasi secret police forces in Germany during the Nazi and Communist eras.
Police Scotland logged 928 incidents of “malice and ill will” with no criminal offence in 2021 — twice the number of incidents recorded in 2017.
There was no marked increase in hate crimes over that period. This indicates a growing trend for officers to record “non-crimes” when there has been no rise in actual hate crimes.
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Index on Censorship, which campaigns for freedom of expression, has been warning of the dangers of police investigating speech that breaks no law for many years.
Ruth Smeeth, the chief executive, said: “There is a clear danger that the police involvement in the reporting and recording of speech that falls below legal thresholds can have a damaging impact on freedom of expression and robust debate. These figures, obtained through freedom of information, show a concerning — and rapid — upward trend in [non-crime hate] incidents.
“The growing use risks the creation of a legal grey area where certain topics are avoided due to likelihood of police involvement, or their vexatious use by some to invite formal investigation and action against those exercising freedom of expression.”
Guidance from the College of Policing, the professional body for officers in England and Wales, has prompted concerns about criminalising people who tell offensive jokes.
When The Times revealed that Police Scotland was recording similar non-crime hate incidents in 2020, the force denied that it “had introduced a culture whereby ‘jokes’ or freedom of speech were curtailed”.
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Officers can log a non-crime hate incident if it is “perceived to be” motivated by hate or prejudice, even if the perpetrator insists the comments were humorous or thought-provoking. The college updated its guidance on recording non-crime hate incidents in July after judges ruled that they had a “chilling effect on public debate”.
Police south of the border are advised to keep “trivial or irrational” complaints off the books plus those that are not clearly “motivated by hostility”.
The guidance says: “Individuals who are commenting in a legitimate debate — for example, on political or social issues — should not be stigmatised because someone is offended.”
Police were also advised to keep the names of alleged offenders off the record if no crime was committed, as this “non-criminal record” could hamper employment prospects if forces were compelled to disclose an incident.
The guidance was issued after Harry Miller, 57, a retired policeman, took the College of Policing to court after he was accused of a non-crime hate incident.
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Miller was visited at work by a Humberside police officer who wanted to “check [his] thinking” after a series of tweets about transgender women in 2019.
In December that year the Court of Appeal unanimously ruled that the College of Policing guidance had breached his human rights.
Despite the ruling in England, recording of non-crime hate incidents has continued to rise in Scotland.
In Scotland there were 625 non-crime hate incidents recorded in the first half of 2022, the latest data available, more than for the whole of 2017, 2018 and almost as many as 2019.
Craig Hoy, the Scottish Conservative chairman, said there was a distinction between “abhorrent hate crimes” and much less serious incidents. “At a time when officer numbers are at their lowest level since 2008 — due to SNP cuts — Scotland’s police can ill afford to waste time recording the latter. The guidelines ought to change so that officers are no longer required to file these non-crimes,” he said.
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“Equally, it’s wrong that those who have committed no crime should have their details stored in a database, and could conceivably miss out on a job as a result.”
Gary Ritchie, Police Scotland assistant chief constable, said: “A hate incident is any incident which is perceived by the victim or any other person to be motivated, wholly or in part, by malice, ill will and prejudice, towards a person or group but which does not constitute a criminal offence.
“We are aware that hate-related incidents are one of the most under-reported forms of crime in the country and in recent years we have actively encouraged the reporting of hate crimes and hate incidents so it is not unexpected that there has been a rise in reports.”
He continued: “They are recorded so any pattern of targeted behaviour towards and against an individual, location or community, can be identified and addressed.
“It may then be determined that a hate crime has been committed. If a hate incident is established as a non-crime then it is unlikely to be investigated further.
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“Police Scotland is committed to tackling all forms of hate-related incidents and the harm they cause.”
