April 4, 2024 - 2:00pm

In normal circumstances, people tend to know whether or not they’ve committed a crime. That’s no longer the case in Scotland, however, where the effects of a poorly-drafted piece of legislation are already being felt. Since Monday — April Fools’ Day, appropriately enough — no one can say with any certainty whether they’ve committed an offence under the SNP’s new hate crime law. They don’t even know whether a “non-crime hate incident” (NCHI) has been recorded against them, affecting their chances of future employment or their ability to volunteer for a good cause.

The Hate Crime and Public Order Act has created a vague criminal offence of “stirring up of hatred”, with stiffer sentences if the offence involves prejudice on the basis of age, disability, religion, sexual orientation or transgender identity. Earlier this week the First Minister, Humza Yousaf, claimed it was needed to deal with a “rising tide of hatred” in Scotland and across the world, although the latter regrettably falls outside his remit. Ministers often cite “hate crimes” against trans people as a reason why the new law is needed, yet Scotland’s official figures tell a different story. Recorded hate crimes in this category have decreased dramatically, from a high of 86 in 2021/22 to 55 the following year.

What the Act has done is create opportunities for anyone who wants to settle a score or make trouble for a public figure. Almost 4,000 complaints were received by the police in the first 24 hours, many of them targeting the novelist J.K. Rowling, who challenged the legislation with a thread on X describing 10 trans women as men. The Scottish Tories estimate that 1.4 million complaints could be made under the new Act in the next 12 months, many of them anonymous.

In a rather delicious development, complaints about Rowling were outnumbered by complaints against Yousaf — who steered the legislation through Holyrood when he was Justice Minister — in relation to a speech he made about race in 2020. Police Scotland swiftly announced that Rowling’s posts on X did not meet the criminal threshold under the new Act, while it said that complaints against Yousaf had been investigated at the time and dismissed.

But their acknowledgement that an NCHI has not been recorded in either case exposes glaring inconsistencies — and apparent political bias — in the way the law is applied. A Conservative MSP, Murdo Fraser, is threatening legal action against Police Scotland after discovering the force has logged an NCHI against him.

Fraser’s “offence” was sharing a post on X that ridiculed the Scottish government’s “non-binary action plan”, suggesting that “identifying” as non-binary is “as valid as choosing to identify as a cat”. The discrepancy has prompted an accusation by the SNP MP, Joanna Cherry KC, that Police Scotland is revising policy “on the hoof” to avoid the embarrassment of recording an NCHI against a famous author and philanthropist.

The police says every report will be investigated, taking up time that could be devoted to actual crimes. In Edinburgh 80% of burglaries are unsolved, while rape reports reached a new high in Scotland in 2022/23, yet officers are now apparently expected to respond to every complaint about  hurt feelings. This looks very much like a politicised police force, forced into a position where it has to pander to the demands of busybodies and extremists. The only answer is to repeal.


Joan Smith is a novelist and columnist. She has been Chair of the Mayor of London’s Violence Against Women and Girls Board since 2013. Her book Homegrown: How Domestic Violence Turns Men Into Terrorists was published in 2019.

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