No Hate Crime Act arrests are necessary for this new law to have a frightening effect on free speech – John McLellan

“If only there was a Hate Crime Bill,” didn’t feature in the conversation, and indeed the Scottish Government’s overview of the Hate Crime and Public Order Act, when it was introduced as a bill four years ago, was clear laws already existed to protect some groups and acknowledged that prejudice could be considered by criminal courts during sentencing. Only this week it was revealed that police recorded a “non-crime hate incident” under existing legislation after complaints from a trans activist about fellow columnist Murdo Fraser MSP posting a Twitter/X comment about an article written on these pages by Susan Dalgety.

With five days before police can enforce the Act, the scope for investigation has been widened with age, disability and transgender identity added to the list of protected characteristics, and a new crime of stirring up hatred. It’s no big deal, say supporters, because stirring up, or incitement to, hatred has been an offence in England for years, without noticeably curtailing freedom of expression.

Reasonable person test

I won’t argue with Glasgow University’s professor of public law, Adam Tomkins, and as the ex-Conservative MSP was convener of the justice committee when the legislation went through the Scottish Parliament, I’ll accept his word that “offensive speech is not criminalised by this legislation”, as he wrote in The Herald last week.

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And I’m happy to believe that “the threshold of criminal liability is not that a victim feels offended, but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive”. Glasgow Caledonian University law lecturer Andrew Tickell, also writing in the Herald, noted the Act tells police and courts to pay “particular regard” to freedom of expression.

So why the hoo-ha as the April Fool’s Day deadline approaches? Supporters and detractors agree an avalanche of complaints is likely because, as argued by Murdo Fraser, a solicitor, in these pages last week, it gives “far too much leeway to the imaginations of vexatious complainers”. Prof Tomkins wrote it was “plain that a great deal of police time is now likely to be wasted having to deal with and dismiss ill-founded complaints made by people who are offended, upset, hurt or distressed by something someone else has said”.

Police priorities out of step with public

Police Scotland made matters worse by revealing last month it would not investigate every minor crime, like vandalism and petty thefts, under an experimental “proportionate investigation” policy but only days later confirmed every hate crime report will be investigated. “We want everyone targeted by hate crime, or those who witness it, to have confidence to come forward… the circumstances they report will be fully investigated,” said Police Scotland’s hate crime prevention lead, Chief Superintendent Faroque Hussain.

If ever there was evidence of police priorities being out of kilter with public opinion this was it; the most recent public attitude survey, conducted for the Scottish Police Authority last year, showed only six per cent thought the force was doing a very good job of tackling anti-social behaviour, 20 per cent thought it was doing a “somewhat good” job, and 42 per cent thought it was somewhat or very poor.

But as Humza Yousaf’s flagship policy when he was Justice Secretary, what else are they supposed to say? Like 20mph speed limits, police are bound to say new laws will be enforced, despite the dogs in the street knowing they have no capacity. The public generally can’t report speeders because they lack evidence, but with hate crimes there is a complainant expecting action, because that’s what they believe. Unlike housebreaking or vandalism, there will be no evidence of crime, except anger or spite.

Conflict of rights

Attempting to assuage fears, Prof Tomkins points out the Act puts protected characteristics in three categories, with race at the top – with actions likely to stir up hatred − then stirring up hatred on grounds of sexual orientation, transgender identity, age or disability, with religion the third. Are you following this? Are police expected to become literary or drama critics to explore the nuances between the three?

Talk of a “human rights approach” is bunkum because such rights are often in conflict and law officers will spend an inordinate amount of time trying to determine where the balance should be struck for each one. Will officers decide on their own? Will they visit the alleged perpetrator for a “conversation”, or will it be down at the nick? Who wants a callow officer on the doorstep telling them they’ve been ratted as a potential hate criminal for something they’ve said or written?

At best, it’s a recipe for paralysis as officers are forced to filter out scores, if not thousands, of complaints about people doing little more than causing offence. But if freedom of speech is protected and powers already existed, exactly what is the Act for? Perhaps subliminal threat is the point. The cartoon “Hate Monster” publicity has ramped up expectation and if there isn’t a tsunami of prosecutions, maybe writers, journalists and entertainers, as well as the public, will already have been cowed. No one need be arrested for freedom of speech to be frozen because the Act, the government and the police have created an atmosphere in which people are afraid to express themselves. And that’s what’s frightening.

There is only five days before it literally becomes a matter of trial and error. And as for that chief inspector, he left a few months later, ground down by lack of resources.