Mike Dailly
GUIDANCE FOR HATE INCIDENT RECORDING REMAINS IN JEOPARDY
WITH the new Hate Crime and Public Order ( Scotland) Act 2021 coming into force today, it’s important to appreciate that this is largely a consolidating piece of legislation.
That means it brings together in one place various existing criminal offences.
Section 4 of the Act is distinct – it creates a new offence of stirring up hatred against a group of persons by abusive or threatening behaviour in relation to their age, disability, religion, sexual orientation or transgender identity.
This type of offence has existed for race or ethnicity in the UK since 1965, from section 6 of the Race Relations Act. As I understand it, there have been very few prosecutions for stirring up hatred – no doubt because it was easier to prove other offences.
The furore over hate crime legislation is less about the law and more about the culture, policy and expectations of the Scottish Government and Police Scotland on “hate” generally.
For me, the big worry is the illiberal messaging from Police Scotland that every “hate incident” will be investigated and recorded even if it’s not a crime.
It’s important to note, the recording of “non- crime hate incidents” ( NCHI) has been around before the new legislation – the point is, when the Act comes into force today there is an expectation that more complaints will be made.
Will there be an exponential rise?
Will we see more activists offended by social media posts making reports to the police? Will the Hate Crime Act become weaponised as part of an ideological and political campaign over gender? There is no right not to be offended.
NCHI recording stems from the murder of Stephen Lawrence. In 1999, the Stephen Lawrence Inquiry Report called for Codes of Practice to create “a comprehensive system of reporting and recording of all racist incidents and crimes”.
NCHI recording has since expanded to cover other protected characteristics covered by hate crime laws.
Last week, First Minister Humza Yousaf, said such data was vital to help the police. He said: “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”.
Police Scotland have stated that as a matter of policy they will record all NCHIs. But what is this data capturing?
Police Scotland guidance from 2021 says: “the perception of the victim
… is the defining factor in determining whether an incident is a hate incident or in recognising the malice element of a crime … 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”.
This open- door approach to NCHI was challenged in the English Court of Appeal in Miller v. The College of Policing [ 2021] EWCA Civ 1926.
The Court held that the recording of an NCHI interferes with the right to freedom of expression and that additional safeguards were needed so that “the incursion into freedom of expression is no more than is strictly necessary”.
Last year, police guidance and rules in England were amended to reject trivial, irrational or malicious complaints and to not record names unless necessary.
Police Scotland’s guidance hasn’t been amended. Standing Miller, that guidance appears open to a legal challenge as being unlawful.