How invasive will Scottish hate crime investigations be?

There are, as has been pointed out in these pages before, safeguards in place for the new hate crime legislation, due to come in next Monday.

There is an argument from some that they are maybe not as robust as the government and some MSPs would have us believe.

But still, there are protections there.

And they are backed up by the right to freedom of belief and freedom of expression, as enshrined in the European Convention on Human Rights.

The threshold for criminality, for prosecution, is high.

If you are charged, the Crown will have to show that your behaviour or communication was threatening or abusive and intended to stir up hatred on grounds of sexual orientation, transgender identity, age or disability.

It is not about being merely offended, or upsetting or disturbing or hurting someone’s feelings.

Should people be worried? In particular, should those with gender-critical beliefs – that sex is biological and immutable and that people cannot change their sex – be worried?

That was the example picked by Professor Adam Tomkins in his column in The Herald last week.

“Asserting that sex is a biological fact or that it is not changed just by virtue of the gender by which someone chooses to identify is not and never can be a hate crime under this legislation.”

He added: “As such, the new law is going to disappoint those transgender activists who think all acts of misgendering are instances of hateful transphobia, just as it is going to disappoint those culture warriors whose nightmarish vision is that the new law poses the greatest threat to free speech since the abolition of the Licensing Act.”

Read more:

Adam Tomkins: You know what? This Hate Crime Act might actually work

Nevertheless, the SNP’s Joanna Cherry says there is “every right to be concerned”.

The MP and KC says she is genuinely worried about the “weaponisation of hate crime laws to silence gender-critical women”.

Cherry’s not talking about convictions or even prosecutions, she’s talking about investigations.

“The process is the punishment,” she wrote.

Police Scotland has said repeatedly that they “will investigate every report” made when the new law takes effect next week.

As Calum Steele, the former general secretary of the Scottish Police Federation told me that could end up being massively invasive for those accused, especially where the primary offence is related to threatening communications online. 

He points to the service’s use of so-called cyber kiosks, or Universal Forensics Extraction Devices (UFED). 

They allow law-enforcement agencies to unlock both iPhones and Android smartphones, and extract most of the data on them.

The devices can work even if the phones are locked and even if the data is encrypted.

“This is the whole chilling effect,” he says. “It's what the state does short of criminal sanction.”

“As a suspect or a potential suspect, you're being subjected to massively invasive scrutiny of your wider social media, contacts, and messaging than your complaint might otherwise merit.”

There are questions too over what happens when no crime has been committed and how that is recorded.

You’ll maybe have seen the stooshie in recent days after Murdo Fraser discovered the force logged a social media comment he made as a "hate incident" despite deciding no crime had been committed.

The force claim the recording helps "monitor tensions" in communities.

And they have been recording reports of other allegations for many years, including domestic abuse, rape, extremism.

However, hate crime reports which don’t meet the threshold for criminality aren’t being recorded as “no crime or offence” as those are, but as hate incidents.

Read more:

Unspun | New independence paper on education makes one very pertinent point...

Police Scotland’s “non-crime hate incident policy,” was published in 2021. It has not yet been updated ahead of the new legislation coming into effect.

Nor has it been updated since a court case and subsequent appeal in England which saw the College of Policing issue new guidance requiring officers to make a judgment as to the gravity and validity of complaints.

That effectively means police officers in England and Wales must now not record anything that is “trivial malicious or irrational”.

While Police Scotland has said they will adopt this guidance, they have not yet.

Get Scotland's top politics newsletter straight to your inbox.

As Murray Blackburn Mackenzie pointed out in a blog looking at the court case and the force's guidance, “due to timescales this is unable to be done in conjunction with the Hate Crime and Public Order Legislation training.”

There are, it seems, still questions, and increasingly little time for them to be answered.