The Hate Crime and Public Order (Scotland) Act 2021: some further points
Following up an earlier post
I posted a brief explainer yesterday about the Hate Crime and Public Order (Scotland) Act 2021. This is a follow-up addressing a few other points I’ve been asked about, including one issue further highlighted by a development today.
Jurisdiction. Some commentary (covered in the Times here) has highlighted the potential extraterritorial application of the legislation, on the basis that material published online could be read in Scotland. This is correct up to a point, although not new. Lord Bracadale’s report (paras 6.39-6.42) recommended that existing rules on jurisdiction stay unchanged. It is not unusual for crimes to have a cross-border element, and the approach the Scottish courts have taken in such cases is to say that they will have jurisdiction where a “material part” of the crime takes place in Scotland.1 Applying a similar test of “substantial measure”, the English courts previously held that they had jurisdiction over two men accused of stirring up racial hatred online, uploading material from England to a website hosted in California.2 Hosting the website abroad did not allow them to escape the jurisdiction of the English courts; it would be a strange loophole if it had. This does not mean, though, that the Scottish (or English) courts somehow have either the responsibility or the power to police the entire internet simply because it can be read in the UK.
Recording non crime hate incidents. Reports of hate crime to the police are subject to a practice of “perception-based recording”: that is, they are recorded based on the views of the person making the report. This means that, even where what is reported to the police does not amount to a crime, it may be recorded as a “non-crime hate incident”. (No prosecution can, of course, follow in such a case, there being no crime.) That recording practice came under scrutiny in the 2021 English case of Miller v College of Policing,3 where the Court of Appeal summarised the rationale for the practice as follows:4
Perception-based recording has a legitimate aim (or series of aims) linked to the prevention of disorder or crime and the protection of the rights of others and this aim is sufficiently important to justify interfering with the fundamental right to freedom of expression. The evidence is that recording of non-crime incidents has been a feature of policing for many years and fulfils part of the core purpose of policing which is to prevent crime and protect citizens. Non-crime hate incidents may be an indicator of community tensions and of hostility which can escalate to more serious and criminal behaviour if unchallenged. Such incidents can damage the victims of them even if the behaviour is not criminal; and a failure to take them seriously can foster distrust in the police and a disinclination to report. Recording non-crime hate incidents allows the police to respond appropriately. This can be through monitoring, collecting intelligence, assessing the risk of escalation, mitigating risk or making informed decisions about the use of resources. Recording can also assist in relation to potential “course of conduct” offences, under the Protection from Harassment Act 1997 for example and provide evidence relevant to the motivation of those who go on to commit criminal offences.
Notwithstanding the court’s conclusion that the practice had a legitimate aim, Miller, a Twitter user who had been the subject of a complaint to the police, succeeded in his challenge to guidance issued by the College of Policing (a professional body whose remit covers England and Wales) about the recording of non-crime hate incidents. The Court of Appeal noted that there was “nothing in the Guidance about excluding irrational complaints, including those where there is no evidence of hostility,5 and little, if anything to address the chilling effect which this may have on the legitimate exercise of freedom of expression”.6 This was “capable of unfairly stigmatising those against whom such a complaint is made”.7 A statutory code of practice for England and Wales now states that a non-crime hate incident “should only be recorded if it is deemed proportionate and necessary to do so in order to mitigate a real risk of harm”, setting out a series of steps to “determine if the incident is a non-crime hate incident”.
Recording non-crime incidents in Scotland: the case of Murdo Fraser. On 25 March 2024, the MSP Murdo Fraser noted publicly that he had been the subject of a complaint to police regarding a tweet (which, whether or not one shares Mr Fraser’s views, was patently not criminal) that he had made about non-binary identities, and that he was challenging Police Scotland’s decision to record it as a non-crime hate incident. Police Scotland, according to the Scotsman, said that “Inquiries were carried out and no criminality was established. The incident was recorded as a non-crime hate incident. Hate incidents are not recorded against alleged perpetrators.”8 That language, notably, echoes the first paragraph of the decision in Miller, where the policy complained of was described as one that a non-crime hate incident be recorded, on the basis of the complainer’s perception, “against the named person allegedly responsible”.9 It may be that Police Scotland consider that if the incident is not recorded “against” the person complained about, the problem identified in Miller is sidestepped. But, as seen above, this is not the approach taken in the English post-Miller code of practice. Nor is it immediately clear what it means for the NCHI not to be recorded “against” someone (to what extent and where does their name still appear in the record, and for what purposes might that information be accessed and used)? Mr Fraser has written to Police Scotland with a series of grounds of objection to the record they have made, and has secured the support of the Free Speech Union, with the prospect of court action.10 This move, whether or not it ends up in court, may result in public clarification of Police Scotland’s practices.
Will the 2021 Act see more complaints to the police, and more records of non-crime hate incidents? An overly legalistic answer to this question would be to point out that the 2021 Act does not change the law very much and that even where it does (e.g. by extending the stirring up offences) any conduct caught by the new offences would likely already be criminal in some form, under existing offences I mentioned in my earlier post.11 And given that non-crime hate incidents are, by definition, not crimes, the new law provides no greater scope for such reports and records - the report against Murdo Fraser, for example, pre-dates the 2021 Act coming into force. But that answer is overly legalistic, because what happens next depends on public perceptions of the law, not Substacks by law professors. If a public perception develops (or already exists) that the 2021 Act’s commencement on the 1st April does significantly expand the law and for example allows people to silence those on social media with whom they disagree, then it seems inevitable that there will be additional complaints, with the potential chilling effects that implies. For that reason, there is some value in being legalistic: it is important that what the Act does and does not do is clearly understood.
Laird v HM Advocate 1985 JC 37. There are special rules conferring broader jurisdiction over some offences (e.g. section 134 of the Criminal Justice Act 1988 gives the UK courts jurisdiction over torture committed anywhere in the world, implementing the UK’s obligations under an international convention), but none under this Act.
R v Sheppard and Whittle [2010] EWCA Crim 824.
Miller v College of Policing [2021] EWCA Civ 1926.
Miller at [108].
In English hate crime legislation, “hostility” is the equivalent of “malice and ill will” in the Scottish legislation.
[117].
ibid.
Mr Fraser became aware of the report and the record of it because of an unsuccessful complaint which was made to the Scottish Parliament's Ethical Standards Commissioner, giving the crime reference number.
Miller at [1].
I would not want to predict the outcome of any action, particularly because it is not immediately clear exactly what information Police Scotland have recorded and to what potential use it might be put. I am, though, sceptical about the argument the FSU have highlighted in their public statement, which is that “Police Scotland’s ‘National Hate Crime Guidance’ is not law but, er, ‘guidance’, and therefore does not provide a ground for processing Mr Fraser’s data that is ‘lawful’ [for data protection purposes]”. This sounds like an argument previously rejected by the Court of Appeal in Miller at [51]-[56]. It is the common law powers of the police which provide the required lawful basis, not the guidance as to how those powers are to be exercised.
Which might seem to raise the question: why criminalise it at all? But criminal law is not simply a box of things that are unlawful and a second box of things that are not: it aims to categorise and describe wrongdoing appropriately. Take, for example, the law of sexual offences: every rape is also an assault but it is important to have a law of sexual offences which recognises the distinct wrongdoing involved and it would likely be regarded as at best eccentric to argue otherwise. In contrast, the case for a specific offence of “dog theft”, when any such cases already fall within the general offence of theft, is rather weaker (which is not to say unarguable). Consider the first English prosecution for stirring up hatred on the grounds of sexual orientation, by distributing leaflets calling for the execution of gay people. If such a case were to take place in Scotland before the 2021 Act comes into force, that could likely be prosecuted as (for example) breach of the peace, but does that properly recognise the wrongdoing involved?