Why are Police Scotland still recording non-crime hate incidents (like the one against my name)?

Father Ted was co-written by the Irish writer Graham Linehan, who was recently in the news for an entirely different reason – his arrest at Heathrow Airport by five armed police officers following an allegation of a hate crime. Linehan, now based in the US, had returned to the UK and had been met on his arrival by police, following a complaint made against him by a trans rights activist for the content of one of his social media posts.

Linehan is well-known for his gender-critical views which he expresses freely on social media, and as such has become a target for activists who believe that no one should be allowed an alternative point of view. The Metropolitan Police have now apologised for the arrest, and Linehan is pursuing legal action against them.

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The hate problem

One consequence of the fallout from the Irish writer’s experience is that the Metropolitan Police have announced that they will no longer be investigating so called “non-crime hate incidents” – in which the threshold for a criminal charge has not been met, but nevertheless the police keep a record.

However, the National Police Chiefs’ Council (NPCC) and the College of Policing said in an interim report last week that NCHIs should no longer be recorded by police forces.

The use of NCHIs has been controversial for a long period of time. They are recorded where no crime has been committed but, in the perception of the complainant, a hate incident has occurred. The police claim that this holding of data is necessary in order to compile statistics on the prevalence of hate crime, but given that there is no objective test as to whether an NCHI should be recorded, it is hard to see what the value of such data would be.

Police Scotland are now under fire for failing to disclose how many NHCIs are being logged. We know that, historically, there were thousands such records, but the latest data for hate crimes recorded between April and June has no figures for NCHIs.

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‘Divisive culture wars’ a distraction

In response, Chief Superintendent Rob Hay, president of the Association of Scottish Police Superintendents, called for the policy to be scrapped. In his words: “What was never anticipated was the current context of large-scale weaponisation of offence-taking and divisive culture wars, often playing out over social media. The potential for this to have a chilling effect on free speech and erode an already fragile balance of public confidence in the police is clear.”

He is entirely correct to make these observations. Just in the last few weeks, we have seen the Scottish Police Federation raise their concerns once again about the strain on police resources. We have also recently seen retailers claim that the crime of shoplifting is being effectively decriminalised because local police forces simply do not have the capacity to follow up on their complaints. The cry that Police Scotland should “police our streets, not our tweets” has greater resonance than ever.

Despite all these concerns, Police Scotland are resolutely refusing to change their approach. Last week a spokesman said: “After considering recommendations from the College of Policing, we introduced our own Responding to Hate standard operating procedure to ensure such incidents are recorded appropriately.”

My ongoing battle with Police Scotland

This is simply extraordinary. With police forces elsewhere in the UK now deciding that recording NHCIs is a literal waste of time and achieves no purpose, as well as presenting a risk to free speech, why are Police Scotland now outliers in defending the policy?

I have a personal dog in this fight. I’m now nearly two years into an ongoing battle with Police Scotland over a recording of an NCHI in relation to a social media post I made, where I shared an article from my fellow Scotsman columnist, Susan Dalgety, which criticised Scottish Government gender policy in producing a “non-binary action plan”.

For that, I was reported to the police by a trans rights activist, and although it was determined – unsurprisingly – that no crime had been committed, an NCHI was recorded, and remains on the record. With the help of the Free Speech Union (FSU), which has also been backing Graham Linehan, I have challenged Police Scotland in relation to the lawfulness of the policy.

My initial complaint was rejected but, with the assistance of lawyers funded by the FSU, we took the matter to the Police Investigation and Review Commissioner who upheld my complaints on all three grounds and referred the matter back to Police Scotland for a satisfactory response.

That was in March this year, with the force given two months to respond. They are now five months overdue in dealing with the matter.

Too farcical for Craggy Island

My lawyers are entirely confident that Police Scotland’s policy is indefensible and, if it comes to it, we will have to go to court. That would be an unfortunate waste of resources, not least for the police themselves who really need to be focussed on other activities.

I find it literally beyond belief that Police Scotland are in a situation where they will not recognise that the policy of recording NCHIs is simply no longer sustainable. Quite apart from the issue of lawfulness, it is manifestly a policy which no longer commands public support, if indeed it ever did, and one which has been weaponised by activists in an unseemly cultural war where they are determined to silence contrary voices.

The whole situation has become a farce too far-fetched even for the inhabitants of the parochial house on Craggy Island. If Police Scotland want to stop being seen as a bunch of comedians, then they need to put this right.

Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife