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SNP hate crime laws are wasting Police Scotland's time

Sophie Kent
April 15, 2024

After three years in Holyrood, Scotland’s controversial hate crime law came into effect two weeks ago today. The catastrophe of its first fortnight leaves no doubt that the only course of action is for the Scottish government to scrap it entirely.

The vague definitions outlined in the legislation are amongst its biggest failures. The crime of “stirring up hatred” is impossibly difficult to pin down, and not conducive with the efficient, simple enforcement of this legislation for which many may have hoped. Furthermore, many are rightfully questioning what is meant by a “reasonable person”, and who is qualified to make that assessment.

It is precisely this kind of thing which ought to have been ironed out over the last three years. The ambiguity is disappointing, given the already prevailing view that the act was going to do little to build upon the provisions outlined in existing UK hate crime legislation.

Interpretation is just one facet of this law which is troubling. The Act’s scrapping of the ‘dwelling defence’ which previously entitled people to express any views within the privacy of their own home has been ruffling feathers throughout the enactment process. It was the reason for opposition to the bill among some politicians, such as former MSP Adam Tomkins. Not only is the Act unintelligible and unenforceable, but it also threatens to police the natural conventions of debate in even the most informal of forums. Regulating the online and public spheres is one thing, but what happens when this clamping down on free speech is extended to the domestic arena?

This, of course, coincides with a time where Police Scotland is stretched thinner than ever. In fact, a pilot scheme designed to manage overstretched police resources in the north-eastern regions of Scotland has been expanded. The initiative ceases any investigation of low-level crimes if there is a lack of witnesses or evidence; a testament to the already-overwhelming pressure on law enforcement.

In this context, Police Scotland’s commitment to logging every instance reported to them or third-party reporting centres of a possible hate incident, is not only unmanageable, but absurd.

Meanwhile, in only 3% of reported cases has an actual hate crime been identified as having occurred, despite the fact that alleged perpetrators’ names are being held in police records regardless of whether legal action is pursued. The process of fighting off the claims – if the accused is even aware of them – becomes itself the punishment, and one that will often play out in the public arena.

The Act - a centrepiece of recent UK media discussion - is rapidly becoming yet another battleground for culture wars.

The Act - a centrepiece of recent UK media discussion - is rapidly becoming yet another battleground for culture wars. Quote

The contentious gender identity provisions within the act have conjured significant media backlash. In particular, the omission of women (as they are defined by biological sex) despite the inclusion of trans-identifying individuals is controversial.

It is this element of the act that has ushered in celebrity involvement and subsequently captured global attention. Particularly when JK Rowling – who was out of the country at the time - invited the Scottish Police to arrest her upon her return to Edinburgh (which she facetiously highlighted as the “birthplace of the Scottish Enlightenment”) for her tweets which discussed “accurate description of biological sex”.

As a result of this sensationalised online battle, some have called for a realignment of focus onto the other marginalised groups this legislation was intended to protect.

MSP Siobhian Brown has repeatedly come under fire for her comments on the legislation, including her inability to clarify whether ‘misgendering’ would be prosecuted. She stated instead that it will be “up to Police Scotland” to decide if the incident is criminal: a decision I can’t help but feel the average officer is not only unqualified, but far too busy, to make.

A lack of officer training has compounded this issue, as no funding has been allocated for in-depth training or analysis of the law. Officers have instead been prepared only by two hours of online modules.

Questions of creative and journalistic suppression have also been raised. comedians and other outspoken public figures, the nature of whose jobs rely on social commentary, are similarly concerned for the future of free speech under the new legislation.

Police Scotland has reassured those who have taken this view that satirists, actors, and comedians will not face legal repercussions. However, we can presume that the recording of hate incidents will continue. This will be a concern for performers ahead of the Edinburgh Fringe Festival this summer, if the Scottish government hasn’t reversed its blunder by then.

Enough time and money has already been wasted on this legislation – it's time for it to go.

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Sophie Kent is pursuing a Masters in History at the University of Edinburgh.

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