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Police in Scotland ‘making it up as they go’ over new hate crime legislation

Police in Scotland have been accused of ‘making it up as they go’ and favouring the well-known after they refused to go after JK Rowling or Humza Yousaf – however did take motion on Murdo Fraser’s publish calling ‘non-binary as legitimate as figuring out as a cat’. 

As anger over Scotland’s controversial hate crime legislation continues to develop, Conservative MSP Mr Fraser has demanded ‘pressing readability’ from Police Scotland chief constable Jo Farrell.

Last November, Mr Fraser was discovered to have dedicated a non-crime hate incident (NCHI) after he tweeted: ‘Choosing to determine as ‘non-binary’ is as legitimate as selecting to determine as a cat. I’m undecided Governments ought to be spending time on motion plans for both.’

An NCHI is when a criticism doesn’t meet the edge for a criminal offense however is perceived to be ‘motivated (wholly or partly) by malice and ill-will in direction of a social group’, in line with Police Scotland steerage.

At the time, he stated he was ‘discovered responsible’ of ‘hate’ by Police Scotland. But he has now questioned the consistency of the legal guidelines after feedback made by Harry Potter writer JK Rowling and Scotland First Minister Mr Yousaf weren’t logged.

The pressure confirmed this week {that a} sequence of tweets made by JK Rowling – wherein she referred to 10 high-profile trans ladies together with convicted intercourse offenders as ‘males, each final one in every of them’ – didn’t meet the edge for crime or a NCHI.

Police Scotland additionally stated Mr Yousaf’s 2020 speech about ‘usually being the one non-white individual within the room’ wouldn’t be logged as an NCHI. 

Conservative MSP Murdo Fraser has accused Police Scotland of ‘making it up as they go’

As anger over Scotland's controversial hate crime law continues to grow, Conservative MSP Mr Fraser has demanded 'urgent clarity' from Police Scotland chief constable Jo Farrell

As anger over Scotland’s controversial hate crime legislation continues to develop, Conservative MSP Mr Fraser has demanded ‘pressing readability’ from Police Scotland chief constable Jo Farrell

Humza Yousaf
JK Rowling

Mr Fraser’s feedback final yr had been logged as an NCHI however Police Scotland stated Humza Yousaf and JK Rowling’s wouldn’t be 

Mr Fraser, who is considering legal action against Police Scotland, claimed the force's decision was politically biased

Mr Fraser, who’s contemplating authorized motion in opposition to Police Scotland, claimed the pressure’s determination was politically biased 

In response to seeing her feedback wouldn’t be recorded as an NCHI, JK Rowling tweeted: ‘Again, I belief everybody will probably be handled the identical means in the event that they specific themselves equally. Nobody ought to have a ‘Hate Incident’ logged in opposition to them for precisely describing, or asserting the significance and actuality, of organic intercourse. We should all be equal below the legislation.’ 

Scotland’s new hate crime legislation criminalises ‘stirring up hatred’ in opposition to plenty of protected traits together with age, transgender identification, incapacity and people who find themselves intersex – however has sparked protests amid fears it’ll limit free speech.

The Scottish Government has beforehand stated intentionally misgendering somebody – referring to somebody by pronouns apart from people who they like – wouldn’t be criminalised below the brand new laws. 

Rowling – who had dared police to arrest her – had posted a sequence of tweets wherein she spoke out in opposition to 10 trans ladies, together with double rapist Isla Bryson, who was jailed for eight years final yr for raping two ladies. 

The assaults had been carried out when Bryson, born Adam Graham, was a person.

Mr Fraser, who’s contemplating authorized motion in opposition to Police Scotland, has written a letter to the chief constable about his considerations.

He stated: ‘I’m writing to you regarding Police Scotland yesterday asserting, that opposite to its acknowledged coverage, NCHIs wouldn’t be recorded in relation to feedback made by First Minister Humza Yousaf and the writer JK Rowling. I’ve plenty of critical questions which come up from this and for which I’d be grateful to have your pressing response.’

He additionally claimed the pressure’s determination was politically biased.

Reacting to Mr Yousaf and Ms Rowling’s remarks not being recorded as NCHIs, he stated: ‘This determination means Police Scotland haven’t solely breached their very own coverage on recording non-crime hate incidents, however now look like making it up as they go alongside.

‘They have taken a unique strategy to feedback made by the SNP first minister to these made by an opposition politician. It is tough to not conclude that Police Scotland has been captured by the SNP coverage agenda and that this can be a determination that reeks of political bias.

‘I hope the chief constable will contact me urgently with a direct apology for recording a hate incident in opposition to me and confirming all information in relation to it have been destroyed. They must also ditch their present illegal coverage — as has been executed in England and Wales — which I imagine is a transparent breach of individuals’s human rights.’

It comes because the Scottish Tories estimate that 1.4million complaints may very well be made below the controversial new legislation within the first yr.

A protest against the new hate crime laws took place outside the Scottish Parliament on April 1, the day the legislation came into effect

A protest in opposition to the brand new hate crime legal guidelines passed off exterior the Scottish Parliament on April 1, the day the laws got here into impact

Humza Yousaf (pictured on Monday) has received more complaints under Scotland's new hate crime bill than JK Rowling , it has been revealed today

Humza Yousaf (pictured on Monday) has acquired extra complaints below Scotland’s new hate crime invoice than JK Rowling , it has been revealed right now

Calum Steele, the previous basic secretary of the Scottish Police Federation, stated that round 3,800 circumstances had been logged throughout the first 24 hours of the act coming into pressure Monday.

The Scottish Tories have claimed that if the speed continues for the subsequent 12 months, a complete of 1.387 million crimes will probably be reported throughout 2024/2025 monetary yr.

Mr Yousaf is believed to be the topic of probably the most complaints below the Hate Crime and Public Order (Scotland) Act, which creates a brand new crime of ‘stirring up hatred’ in direction of sure protected traits. 

These are an individual’s age, incapacity, faith, sexual orientation, transgender identification or being intersex.

An insider advised the Sun: ‘Lots of these complaints had been about Humza Yousaf, on the identical criticism about his parliamentary rant. JK Rowling has had some, however not as many as Humza Yousaf.’

A 2020 video of Mr Yousaf talking within the Scottish Parliament within the wave of the Black Lives Matter protests has been circulated for years, out of context, by far-right Twitter accounts looking for to painting the First Minister as racist.

 

Some of the posts made by JK Rowling on X/Twitter on transgender women, which police say did not meet the criminal threshold when assessed under Scotland's new hate crime laws

Some of the posts made by JK Rowling on X/Twitter on transgender ladies, which police say didn’t meet the prison threshold when assessed below Scotland’s new hate crime legal guidelines

Bryson, 31, formerly known as Adam Graham, from Clydebank, West Dunbartonshire, was moved to a men's prison after an outcry

Bryson, 31, previously often called Adam Graham, from Clydebank, West Dunbartonshire, was moved to a males’s jail after an outcry

In the clip, the SNP chief tells of how persons are usually stunned he’s the one ‘non-white individual within the room’ at a lot of the conferences he attends.

He then provides: ‘The Lord President is white, the Lord Justice Clerk is white, each High Court decide is white, the Lord Advocate is white, the Solicitor General is white, the chief constable is white, each deputy chief constable is white, each assistant chief constable is white, the top of the Law Society is white, the top of the Faculty of Advocates is white and each jail governor is white.’

Mr Yousaf was looking for to spotlight how few individuals of color are in positions of energy in Scotland’s parliament and authorities – however far-right activists stripped the clip of context and sought to counsel he was calling for a discount within the variety of white individuals in Scotland.

News company Reuters issued a fact-checking notice on the video after Elon Musk, proprietor of troubled social community X, previously Twitter, branded Mr Yousaf a ‘blatant racist’ in response to a publish of the video from a well known right-wing account.

Police Scotland stated complaints had been acquired on the time of the controversy however weren’t deemed to have met the edge of a criminal offense. They additionally confirmed feedback from earlier than midnight on April 1, 2024, can be checked out below older laws.

The First Minister’s remarks may even not be logged as an NCHI.

A Police Scotland spokesperson additionally stated: ‘We have acquired plenty of complaints in relation to a speech within the Scottish Parliament on June 10, 2020.

The hate crime bill, introduced on Monday, criminalises 'threatening or abusive behaviour' intended to stir up hatred against someone's identity

The hate crime invoice, launched on Monday, criminalises ‘threatening or abusive behaviour’ supposed to fire up hatred in opposition to somebody’s identification

Women's rights campaigners have hit out at Scotland's new hate crime law (pictured: protests outside the Scottish Parliament on April 1)

Women’s rights campaigners have hit out at Scotland’s new hate crime legislation (pictured: protests exterior the Scottish Parliament on April 1)

Opponents of the law say it will threaten free speech - but the SNP has insisted it will protect freedom of expression

Opponents of the legislation say it’ll threaten free speech – however the SNP has insisted it’ll defend freedom of expression

‘Earlier complaints relating to this matter had been assessed on the time and it was established no crime was dedicated and no additional motion was required.’

NCHIs have been round for a few years and aren’t a part of the new Hate Crime and Public Order Act – however critics concern the brand new laws may result in a rise in hate incidents being logged in opposition to harmless individuals.

Joanna Cherry, the SNP MP, stated: ‘It appears Police Scotland are revising their coverage on recording non-crime hate incidents on the hoof to be able to keep away from the embarrassment of recording incidents in opposition to an internationally, famend writer & philanthropist & the First Minister of Scotland.

‘This actually is not adequate & calls into query the applying of the coverage so far. The coverage ought to be utilized equally to everybody.

‘Police Scotland ought to wipe their present database of non-crime hate incidents and perform a correct assessment of their coverage in keeping with the precept of equality earlier than the legislation.’ 

Joanna Cherry, the SNP MP, said: 'It seems Police Scotland are revising their policy on recording non-crime hate incidents on the hoof...'

Joanna Cherry, the SNP MP, stated: ‘It appears Police Scotland are revising their coverage on recording non-crime hate incidents on the hoof…’

It comes as Siobhian Brown, the SNP group security minister, stated ‘misinformation and hysteria’ have led to wrongful assumptions in regards to the laws.

She additionally stated that one of many 4,000 complaints made to Police Scotland because it got here into impact was submitted by somebody pretending to be her. 

‘I believe additionally, within the final couple of weeks, there was a variety of misinformation and hysteria relating to this invoice being launched,’ she advised BBC Radio Scotland.

‘I used to be stunned myself on Monday to obtain a name from Police Scotland about my criticism – this was a pretend criticism somebody had executed anonymously in my identify, and gave my workplace quantity.

‘I believe this exhibits the publicity and misinformation that is on the market about this Act, that persons are making pretend and vexatious complaints.’

Since the legislation got here into impact, a home near Mr Yousaf’s within the Dundee suburb of Broughty Ferry has been daubed with racist graffiti containing derogatory references to Muslims and Pakistani individuals.

It has been universally condemned by the leaders of Scotland’s political events, and police are investigating.

Elsewhere, the choice to not examine Rowling’s feedback prompted an outcry from transgender newsreader India Willoughby – one of many 10 trans ladies focused within the author’s thread of tweets – who accused officers of getting ‘stardust of their eyes’.

But on Tuesday, Rowling responded to the choice, writing on-line: ‘If they go after any girl for merely calling a person a person, I’ll repeat that girl’s phrases they usually can cost us each directly.’

She was supported by X proprietor Elon Musk – who has a transgender daughter, Vivian Jenna Wilson, who has distanced herself from her father – as he responded to the tweet with a fireplace emoji.

Musk has voiced his opposition to the brand new hate crime legislation, which carries penalties of as much as seven years in jail in probably the most extreme circumstances.

Rowling – who additionally writes below the male pen identify of Robert Galbraith – was additionally given help by the Prime Minister, Rishi Sunak , who stated on Tuesday: ‘We shouldn’t be criminalising individuals for saying common sense issues about organic intercourse .’

What is the Hate Crime Act? 

The Hate Crime and Public Order (Scotland) Act, handed in 2021, adopted a assessment of hate crime laws by Lord Bracadale.

There has been a statutory offence of incitement to racial hatred since 1965 however the 2021 Act creates different offences of ‘stirring up’ hatred in a number of different classes.

These are referred to as ‘protected traits’: age, incapacity, faith, sexual orientation, transgender identification and ‘variations in intercourse traits’ (regarding ‘bodily and organic traits of the physique’).

What does ‘stirring up’ hatred imply and how will you break the legislation?

It is conduct which inspires others to hate a specific group of individuals.

To fall foul of the legislation, you would need to behave in a way {that a} ‘affordable individual’ would contemplate to be threatening or abusive – or, within the case of racial hatred, insulting.

The legislation additionally applies to communication of fabric – for instance on social media – along with feedback or behaviour.

Other crimes, akin to assault, might be ‘aggravated’ by offences below the Hate Crime Act, if a motivation of ‘malice and

ill-will’ might be proven in direction of somebody with ‘protected traits’ – for instance if somebody is assaulted due to their race or incapacity.

What is a ‘affordable individual’?

A ‘affordable individual’ is an atypical citizen, famously referred to by Lord Devlin because the ‘man on the Clapham omnibus’ – and it’s a take a look at utilized in different areas of the legislation.

The take a look at is meant to be goal so a police officer

or prosecutor has to place themselves within the place of a ‘affordable individual’ to make a judgment about probably illegal feedback or behaviour.

What are the potential penalties?

Someone convicted of stirring up hatred below the Act after a jury trial may very well be jailed for seven years, or be hit with a high-quality, or each.

For a much less critical offence – tried by a sheriff sitting with no jury – they may very well be jailed for a yr, or fined, or each.

Is there any authorized defence to a cost below the Act?

Yes – it’s a defence to indicate your behaviour or commun-ication was ‘affordable’ within the circumstances.

When contemplating reasonableness, there have to be ‘explicit regard’ to the significance of the suitable to free speech – even when it’s offensive, stunning or disturbing.

Under the Hate Crime Act, the edge of prison legal responsibility just isn’t {that a} sufferer feels offended however {that a} affordable individual would contemplate the perpetrator’s motion or speech to be threatening or abusive.

Do all minorities coated by the Act have the identical authorized safety?

No, there are variations. ‘Race’ contains nationality and citizenship in addition to color and ethnicity.

The offence of stirring up racial hatred might be dedicated not solely the place behaviour or communication is threatening or abusive, but additionally the place it’s insulting.

This just isn’t the case for sexual orientation, transgender identification, age or incapacity.

For these classes, it’s not an offence if actions or speech are merely insulting – they must be threatening or abusive and supposed to fire up hatred.

What about faith?

‘Discussion or criticism’ of faith is permitted below the Act – along with ‘expressions of antipathy, dislike, ridicule or insult’.

Stirring up hatred on spiritual grounds is an offence, however the threats or abuse ‘must be really outrageous earlier than the prison legislation was ‘, in line with authorized knowledgeable Professor Adam Tomkins, a former Tory MSP.

Ridiculing and even insulting somebody’s faith may be unwelcome – however it could not be prison below the Hate Crime Act.

Does the legislation apply solely in public?

No – it additionally applies to personal properties, not simply to feedback or behaviour in public, elevating the chance that ceremonial dinner conversations may very well be criminalised.

Critics say this stage of state intrusion is unjustifiable and Lord Bracadale, who carried out the assessment which led to the brand new legislation, was against the transfer.

Professor Tomkins, a authorized knowledgeable at Glasgow University, backed the broad ideas of the Act – however finally voted in opposition to it whereas an MSP over the extension of its attain to individuals’s properties.

Will it undermine inventive freedom?

Police Scotland insists it won’t ‘goal’ actors and stand-up comedians who participate in productions or make jokes which may very well be thought of to contravene the Act.

But it has stated that every one complaints about alleged hate crimes will probably be investigated – so if a spectator contacted police a few joke by Frankie Boyle, for instance, it could be taken significantly.

The Scottish Police Federation (SPF), representing rank-and-file officers, has warned that the Fringe pageant in Edinburgh may very well be ‘busier than regular’ this summer season, as officers might need to query comedians who’re the topic of hate crime complaints.

What have the police stated in regards to the Act?

The Association of Scottish Police Superintendents has warned that activists may search to ‘weaponise’ the brand new laws.

Officers may very well be swamped with vexatious complaints – at a time when Police Scotland has stated it’ll not examine minor crimes.

It additionally warns that public belief within the police may very well be broken if the service is drawn into on-line spats – taking officers away from investigating extra critical crime.

The SPF has stated officers haven’t acquired ample coaching – and believes that not all of them could have been skilled in enforcement of the brand new laws by right now.

Will ‘misgendering’ be a prison offence below the Act?

Women’s campaigners say no specific safeguards have been written into the legislation to guard those that insist that (for instance) individuals can’t change intercourse, or that solely ladies might be lesbians.

First Minister Humza Yousaf claims that ‘in case you had been to say a trans man just isn’t an actual man or a trans girl just isn’t an actual girl, you wouldn’t be prosecuted’ – so long as you didn’t intend to fire up hatred.

JK Rowling has stated she won’t delete social media posts which may breach the ‘ludicrous’ legislation after she was embroiled in a misgendering row with transgender broadcaster India Willoughby.

What is a ‘hate incident’?

The recording of ‘non-crime hate incidents’ pre-dates the Hate Crime Act – however there may very well be extra of them because of its implementation.

Officers can log an incident the place no criminality has been confirmed to construct up an image of the prevalence of racial rigidity, for instance, in the neighborhood, and experiences might be made by third events – akin to somebody who overhears a comment and believes it may very well be a hate crime.

Tory MSP Murdo Fraser revealed final week he was the topic of a non-crime hate incident after a trans activist reported him over a tweet crucial of SNP Government non-binary coverage.

Mr Fraser is threatening authorized motion in opposition to Police Scotland to have the coverage scrapped.