Tory MSP threatens legal action against Police Scotland over ‘hate incident’

Murdo Fraser has threatened legal action against Police Scotland after it logged one of his social media posts as a “hate incident”. 

The Conservative MSP said he believed the force’s action to be unlawful. 

The post made in November last year likened choosing to identify as non-binary to identifying “as a cat”, in response to the Scottish Government’s publication of its Non-Binary Equality Action Plan.  

Police decided no crime had been committed by the MSP after a complaint was made.   

But Fraser has accused the force of acting unlawfully by recording it as a hate incident.   

The row comes days before new hate crime legislation comes into effect in Scotland. It creates a new offence of stirring up hatred against protected characteristics such as age, disability, religion, sexual orientation, and transgender identity.  

The dispute began when Fraser shared a newspaper column about the Scottish Government's Non-Binary Equality Action Plan last November. 

He posted: “Choosing to identify as 'non-binary' is as valid as choosing to identify as a cat. I'm not sure governments should be spending time on action plans for either.” 

A member of the public then reported the post to Police Scotland. 

Fraser wrote to Police Scotland’s Professional Standards Department and said while the officer who followed up on the complaint determined there had been no crime committed, he later discovered it had been recorded as a “hate incident”.  

He said the same individual who lodged the complaint with the police also made a complaint with the Ethical Standards Commissioner of the Scottish Parliament. The second complaint informed that they reported the matter to the force, who had recorded it as a hate incident and provided a crime reference number.  

After writing to the chief constable about the incident in December to request a meeting, he was contacted by the local area commander for Perth and Kinross in March confirming the incident would remain on police records “in line with national guidance”.  

Fraser claims Police Scotland was in breach of the Human Rights Act by acting in a way which was incompatible with his European Convention on Human Rights, in particular the right to privacy and family life, and the right to freedom of expression. He has also suggested the force had breached the Data Protection Act and the Equality Act. 

Fraser said: “Police Scotland has behaved not just outrageously, but unlawfully according to the legal advice obtained by the Free Speech Union. 

“This is Police Scotland attacking free speech – but it is more sinister than that. My tweet wasn’t pointing a finger at an individual – it was critical of a Scottish Government policy. 

“If police are now treating criticism of SNP policy as hate incidents, that is a really serious issue as it shows how Police Scotland has been captured by the SNP policy agenda. 

“Police in England and Wales have torn up their policy on recording non-criminal hate incidents, but Police Scotland have not done that. 

“It is also grossly discourteous of the Chief Constable not to have responded personally to my letter in December. 

“When the new hate crime legislation is enforced from April 1, police are going to be inundated with complaints – and many of them will be as baseless as the one directed at me. 

“Police Scotland have said that they will investigate every complaint they receive – but at the same time they admit they don’t have the resources to investigate minor crime and are severely overstretched. Potentially there will be thousands of ‘hate incidents’ unlawfully recorded if Police Scotland don’t change their policy.” 

A spokesperson for Police Scotland said: “On Monday, November 20, 2023, officers received a report of an offensive tweet. 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.”