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22 March 2024
Dear Sir or Madam,
‘Hate Incident’ involving Murdo Fraser
I refer to the letter from Greg Burns, Local Area Commander, dated 11 March 2024 and wish to lodge a formal complaint about the Hate Crime National Guidance 2021 and the conduct of Police Scotland with regard to its recording of a “hate incident” related to me.
- The factual background
I am an elected Member of the Scottish Parliament and have been since 2001. As part of my role, I regularly post on social media about current affairs in order to engage with the public and advocate for policies and positions important to my constituents.
On 18 November 2023, I reposted on X (formerly known as Twitter) a link to a newspaper article about the Scottish Government’s ‘Non Binary Equality Plan’, which had been published earlier that week.[1] I accompanied it with the comment, ‘Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat. I’m not sure Governments should be spending time on action plans for either.’[2]
On or around 20 November 2023, a member of the public reported my post to Police Scotland claiming that it constituted hatred against non-binary or transgender persons. The Area Control Room and officer who followed up on the matter determined that, although no crime had been committed and the police would conduct no further investigation, the perception of the complainant meant that my post would be recorded as a ‘hate incident’, and a reference number was provided to the complainant.
On 25 November 2023, the same individual lodged a complaint with the Ethical Standards Commissioner of the Scottish Parliament, informing them of the original social media post and notifying them that they had reported the matter to the police who had recorded it as a hate incident and had provided them with a crime reference number, presumably in an attempt to bolster the credibility of their complaint.
On 20 December 2023, the Ethical Standards Commissioner wrote to the complainant and informed them that, following an assessment of the complaint, there did not appear to be a breach of the Code of Conduct for MSPs, and no further investigation would be conducted, with the complaint dismissed as inadmissible. The Commissioner also wrote to me informing me of the complaint and its outcome.
On 21 December 2023, I wrote to the Chief Constable of Police Scotland setting out my concerns regarding the conduct of Police Scotland and requesting a meeting to discuss the matter further. The Local Area Commander for Perth and Kinross eventually replied to me on 11 March 2024. He confirmed that a ‘hate incident’ had been recorded based on the victim’s perception, that there was no associated criminal investigation, but that the incident would remain on police records ‘in line with national guidance’.
- The legal framework
- The Human Rights Act 1998 (“HRA”)
Under s.6 of the HRA, it is unlawful for a public authority such as Police Scotland to act in a way which is incompatible with a right set out in the European Convention on Human Rights (“the Convention”).
Article 8 of the Convention provides that “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
Article 10 of the Convention provides “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. Political speech attracts an especially high level of protection under Article 10 and such rights can only be interfered with in very limited circumstances.
- The Data Protection Act 2018 (“DPA”)
Under s.35 of the DPA, in processing personal data for law enforcement purposes, competent authorities must ensure that the processing of personal data is lawful and fair, and that either the data subject has given consent to the processing for that purpose, or processing is necessary for the performance of a task carried out for that purpose. In determining the ‘necessity’ of processing, a proportionality test should be applied.
In addition, competent authorities must ensure that personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed.
s.31 of the DPA defines “the law enforcement purposes” as “the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security”.
- The Equality Act 2010 (“EA”)
Public authorities are subject to the public sector equality duty (PSED) contained within s.149 of the EA which requires that they have due regard to the following in the exercise of their functions:
- eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
The “protected characteristics” include religion or philosophical belief (s.10). The belief that sex is real, binary and immutable, and that this fact is important – the so-called ‘gender-critical belief’ – was found by the Employment Appeal Tribunal in Forstater v CGD Europe & Ors [2021] UKEAT 0105201006 to enjoy the protections of the EA.
Furthermore, under s.29(2)(c) of the EA, a service provider, in providing a service, must not discriminate against a person by subjecting that person to a detriment due to one or more of that person’s protected characteristics.
- The Hate Crime National Guidance (“HCNG”)
HCNG empowers police forces, under their common law powers, to record non-crime hate incidents. Although the guidance contains detailed instructions for how such incidents are to be logged, at no stage does it introduce any requirement for any evidence to establish the hate element, beyond the perception of an individual, who could be the complainant or some other person, including the police officer handling the complaint.
The HCNG is unlawful because it makes no allowance for Police Scotland to exercise common-sense discretion in determining whether there was a lawful justification to interfere with the alleged perpetrator’s right to freedom of expression. This failure is evidenced by the lack of any requirement for Police Scotland to take the reasonable and common-sense step of asking the alleged perpetrator what they meant by the complained-of utterance, and instead relying entirely on the perception of the complainant, thereby disregarding the possibility that the complaint may have been irrational, malicious, hyper-sensitive, or otherwise baseless.
In R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926, the Court of Appeal of England and Wales held that the ‘Hate Crime Operational Guidance’ (the local equivalent of HCNG) constituted a disproportionate and unlawful interference with the right to freedom of expression.
This ‘real and significant’ interference (paragraph 102) went beyond the measures reasonably necessary to secure the legitimate aim of preventing disorder and crime and protecting the rights and freedoms of others. In the absence of an obligation to exercise ‘common-sense discretion not to record irrational complaints’ (paragraph 123), the local guidance authorised constables to record incidents which, on a reasonable assessment, were not motivated by hostility – or ‘non-crime non-hate incidents’ as the Court put it (paragraph 112).
Although the Miller judgment is a decision of the courts of England and Wales, the underlying law which informed the decision applies to the whole of the United Kingdom, and given the substantial similarities between the hate incident recording regimes in the two jurisdictions, there is no reason to suppose that a Scottish court would reach a substantially different decision when presented with the substantially similar facts of a baseless complaint made to the police.
Furthermore, the key feature of ‘hate incidents’ as described in the HCNG is the storing and processing of information. If there is to be no further investigation or action taken with regards to the incident, then it exists solely as an entry on the STORM, iVPD, and/or other police databases. Article 8 is therefore engaged and the interference with this right is significant, because the subject of such a record would be described on a police database as a perpetrator of hate, with the adverse consequences that may flow from that. This would apply whether or not the record is filed under the subject’s name or that of the complainant.
- The recording of a “hate incident”
Police Scotland’s action in recording a “hate incident” against me is unlawful as it constitutes a breach of s.6 of the HRA, a breach of s.35 and s.37 of the DPA and a breach of s29(2)(c) and s149(1)(a) of the EA.
- Breach of the HRA
As stated above, under s.6 of the HRA, it is unlawful for a public authority such as Police Scotland to act in a way which is incompatible with a right set out in the European Convention on Human Rights. In recording non-crime hate incidents, Police Scotland is acting incompatibly with Articles 8 and 10 of the Convention.
Article 8 Right to respect for private and family life
In Marper v UK [2008] ECHR 1581, the ECtHR found that (paragraph 67) ‘the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8.’ In my case it was an unlawful interference with my right to a private life because it was a more intrusive measure than was necessary to secure a legitimate aim.
Article 10 Freedom of expression
In R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926, the Court of Appeal held that the “the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate”.
The recording of the ‘hate incident’ was an unlawful interference with my right to freedom of expression by virtue of the fact it was authorised by unlawful guidance (HCNG). Police Scotland did not appear to have given due consideration to the fact that the adverse recording of the political views of an elected opposition politician is a grave step that requires exceptional justification. Rather than exercise common-sense discretion as to whether there was any objective basis for interfering with my right to freedom of expression, they decided, unlawfully, that ‘perception by the victim or any other person’ was alone sufficient grounds for such interference.
- Breach of the DPA
Contrary to the first data protection principle, as set out at s.35(1) of the DPA, HCNG is not ‘law’ and therefore did not provide a ground for processing that was ‘lawful’. Even if the processing were lawful, contrary to s.35(2) I did not consent to it and it was not ‘necessary’ (or proportionate).
Contrary to the second data protection principle, as set out at s.37, processing my special category personal data (which comprised my philosophical gender critical beliefs) in the absence of any investigation as to its relevance or meaning was excessive in relation to the purpose for which it was processed.
Since Police Scotland confirmed that no crime had occurred and no further action would be taken, it did not process the personal data for a law enforcement purpose within the meaning of s.31, i.e. for the purposes of the prevention, investigation, detection or prosecution of criminal offences.
- Breach of the EA
Contradicting someone’s beliefs, even about their identity, or drawing attention to an alleged absurdity when working from a particular set of assumptions, is not the same thing as bearing malice or ill-will towards any individual or group. Unfortunately, there is nothing to prevent somebody whose beliefs have been so contradicted from making a complaint to the police about it, alleging it to have been done on the basis of transphobic hatred.
Since the HCNG does not require the police to undertake any kind of balancing exercise or further analysis, but rather record the incident as being based on ‘hatred’ solely on the say-so of the complainant, this makes it de facto impossible to articulate protected gender critical without running the risk of being subject to police action and having adverse information recorded against a person, a ‘chilling effect’ which constitutes a detriment contrary to s. 29(2)(c) EA 2010 as well as being contrary to the duty under s.149(1)(a) of the EA to eliminate discrimination.
Furthermore, because of the one-sided effect of the guidance and the way in which it plays off different groups against one another, this constitutes a failure to uphold the Public Sector Equality Duty to foster good relations between those who share a protected characteristic and those who do not share it.
- Action required
Police Scotland has adopted a cavalier and disrespectful attitude towards me and my rights to freedom of expression and privacy, and the right to be informed of false and damaging information held on police records. In doing so, the police acted on the basis of a policy that is disproportionate, discriminatory, intrusive, irrational and otherwise unlawful.
As I have set out above, Police’s Scotland’s current policy on the recording of “hate incidents” is not compliant with UK law and its actions in recording a “hate incident” connected to me is unlawful.
I therefore require Police Scotland, as a matter of urgency, to make changes to its Hate Crime National Guidance issued in 2021 (HCNG) so that it conforms with UK law and international human rights law and to permanently delete its record of the “hate incident” related to me. I ask that Police Scotland confirm by 5 April 2024 that it has taken or will be taking these necessary steps.
I have assiduously pursued all available means of resolving this matter and now reserve all rights to seek the deletion of the ‘hate incident’ and amendment of the unlawful policy by way of judicial review and/or by way of a civil claim in the sheriff court as applicable.