Ahead of the Hate Crime and Public Order (Scotland) 2021 coming into force on 1 April, the Scottish Government has launched a public information campaign, “Hate Hurts”, showing the impact of what it terms “hate crime”, and encouraging complainants to come forward.  

The campaign is light on detail on the new law. A Stakeholder Toolkit explains “stirring up” racial hatred will be extended to cover all other characteristics, but provides no detail on what “stirring up hatred” actually means; although strikingly, advises stakeholders to “think about monitoring any abusive or threatening comments on social media ensuring these comments are hidden and if required reported” when promoting campaign materials. 

The difficulties with the Act are well-rehearsed. Once in force, Police Scotland faces a potential deluge of complaints relating to stirring up hatred based on transgender identity, relating to differences of belief on sex and gender. The Act offers limited freedom of expression protections and training for officers is reported to be inadequate. The Scottish Police Federation has said:

We could end up with people being charged who should not be charged because people do not understand the law. We are asking officers to police a law that they are unprepared for.

Starting with development of the “hate crime” agenda in the UK, this article looks at how we got here. 

The development of hate as a policing matter in the UK 

The legislative and policy framework around “hate crime” is largely a legacy of the 1999 Stephen Lawrence Inquiry report by Lord Macpherson. Described as a watershed, the report set out seventy recommendations aimed at “the elimination of racist prejudice and disadvantage and the demonstration of fairness in all aspects of policing” (1999: 375). In respect of defining, recording, and reporting racist crimes and incidents, the report recommended:

12. That the definition should be:

“A racist incident is any incident which is perceived to be racist by the victim or any other person”.

13. That the term “racist incident” must be understood to include crimes and non-crimes in policing terms. Both must be reported, recorded and investigated with equal commitment… 

14. That Codes of Practice be established by the Home Office, in consultation with Police Services, local Government and relevant agencies, to create a comprehensive system of reporting and recording of all racist incidents and crimes.

15. That all possible steps should be taken by Police Services at local level in consultation with local Government and other agencies and local communities to encourage the reporting of racist incidents and crimes. This should include: – the ability to report at locations other than police stations; and – the ability to report 24 hours a day.’

(1999: 376-377, emphases added)

Taking the recommendations forward, the introduction of third-party reporting sought to overcome barriers posed by deep distrust towards the police within black communities. Similarly, NCHIs arose out of a need to take seriously the cumulative impact of repeat minor incidents and help restore trust. 

The consistent message given to us was that the police and other agencies did not or would not realise the impact of less serious, non-crime incidents upon the minority ethnic communities. (1999: 45.12)

The expansion of “hate crime”

The next decade onward saw the expansion of legislation to other characteristics, with “stirring up” offences for race extended to religion and sexual orientation in England and Wales, and “offences aggravated by prejudice” introduced in relation to disability, sexual orientation, race, religion, and transgender status at varying points (England and Wales, Scotland). 

At a policy level, a mushrooming generic “hate crime” agenda saw the “perception-based” Macpherson principles extended to other characteristics. Setting out the definition of a “hate incident” as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice” based on a person’s actual or perceived race, religion, sexual orientation, disability, or transgender status, a 2009 Cross-Government Action Plan on hate crime explained: 

… these definitions are distinct from the definitions in law… they are designed to be broader, recognising the perception-based recording principle (2009: 54). 

Expanding the landscape further, in 2012 the UK Government stated that police forces should not necessarily limit their actions to the five monitored strands.  

This does not mean that crimes motivated by hostility or hatred of other characteristics, such as gender, age or appearance cannot happen…. We have been very clear with local areas that they are free to include other strands in addition to the monitored five when developing their approach to hate crime. For example, some areas have included age or gender in their response to hate crime, to reflect the concerns of local citizens or in response to trends in local crime. (2012: 6)

Police campaigns typically refer to a generic idea of “hate” or “hate crime” without any grounding in legislation. In Devon and Cornwall, a police social media campaign featured a cartoon non-binary tomato. On reporting graffiti declaring “Tomatoes ain’t no fruit” to the police (a blueberry), the tomato is told: 

Reporting makes a difference. By reporting hate crime when it happens, you can stop it happening to someone else. Don’t let other people’s actions dictate who you are.

In Scotland, a “hate monster campaign”, first aired in Spring 2023 but only now coming to wider attention, asks “Have you met the Hate Monster?” and “Why do some people let the Hate Monster in?”. It tells readers: 

We know that young men aged 18-30 are most likely to commit hate crime, particularly those from socially excluded communities who are heavily influenced by their peers. They may have deep-rooted feelings of being socially and economically disadvantaged, combined with ideas about white-male entitlement.

It also provides information on reporting, “if you see the hate monster”. But it says nothing about the law.

Hate crime and the law

Tracing these developments, it becomes clear that “hate crime” is a concept deliberately  developed outside the law-making process, to invoke the idea of law, but consciously departing from what the law actually says, and going much wider.  It is not an aggravator to a crime simply to be perceived as “hateful” by someone else, and far less is it a crime to be perceived as “hateful”, absent any criminal act.  But language and definitions widely adopted by the police, prosecutors and other public authorities and voluntary organisations across the UK imply otherwise. Thus even where Victim Support Scotland’s site carefully describes the difference between non-crime hate incidents and aggravated offences, this is all still generically titled as “Hate Crime.” 

The effect of this thinking comes full circle on Police Scotland’s “What is hate crime” webpage which says:

The legal definition (sic) of hate crime is “any crime which is understood by the victim or any other person as being motivated (wholly or partly) by malice or ill will towards a social group.”

There is, however, no such “legal definition”. The quotation is from an administrative agreement between Police Scotland and the Crown Office. It appears none of those who drafted, signed off, or have simply seen this site clocked the distinction between law and not-law.  

In other words, the effect of repeatedly reimagining the boundaries of the criminal law in day-to-day operational language has been to confer the status of law onto policy — at least in the minds of some of those involved in explaining and enforcing it. 

It is an effect not unique to this area. Something very similar has been seen in the context of self-declared gender identity and understanding of the meaning of the terms “woman” and “man” in the Equality Act, across the public sector.

“Hate crime” and gender self-identification   

For those seeking to secure the primacy of gender identity in law and policy, a burgeoning and loosely defined “hate crime” landscape has proved a useful vehicle. Referring to the Offences (Aggravation by Prejudice) (Scotland) Act 2009, the former Scottish Trans director explained how “we saw the… legislation as an ideal opportunity to establish the concept of non-binary gender identities in Scots law” (2018: 232). 

A decade later, facilitated by a NCHI policy that required the police to record all incidents of “hate” under the monitored strands, the same Director encouraged supporters to report stickers with slogans such as “Female is a biological reality” and “Woman. Noun. Adult human female” to the police because “we need the stats”.   

As of 1 April, Police Scotland officers will be expected to use their judgement to assess whether a “reasonable person” would find any reported conduct ‘threatening’ or ‘abusive’ in relation to the new offence of stirring up hatred for transgender identity. What officers view as “reasonable” in this context is difficult to predict here. In Scottish policing, as elsewhere, the imprint of organisations that view those advocating for women’s sex-based rights as “anti-trans” is writ large. Self-termed “trans activists” (see Morton, 2018: chapter 12 ) have previously trained officers on hate crime:  

About 60 police officers are being given special training to help crack down on hate crime against members of the LGBTI community.

The Equality Network charity has teamed up with Police Scotland to deliver a training programme for officers around the country.

It is hoped they will go on to form a new network of liaison officers who can be contacted by lesbian, gay, bisexual, transgender and intersex (LGBTI) people who believe they have been a victim of a crime.
(Defence Police Federation, 15 March 2016)

These organisations have also helped develop training on the new Act. Meanwhile, the official Police Scotland LGBT Allies Toolkit tells officers to “evangelise your allyship” and promotes materials about the devastating effects of misgendering. None of this inspires confidence as to what officers think a “reasonable person” might view as “abusive” or may themselves judge to be motivated by “hate” when responding to allegations of transphobia. 

Meanwhile, ahead of the new Act, Police Scotland has extended its opaque network of third-party reporting arrangements, further increasing opportunities for reporting. In 2021 HMICS reported 242 centres; there are now over 400. These range from more obvious locations (victim support centres), to the esoteric (a sex shop in Glasgow). Police Scotland state that staff are trained, but complainants are referred to institutions (colleges, libraries, council offices, farms) and not to single points of contact (i.e. roles, departments). It is unclear how any of this is regulated, for example, how privacy and data protections are managed, or how staff are expected to deal with situations where complainants may be distressed. Nor is it clear why this provision is only available for hate crime.      

Conclusion

The commencement of the Hate Crime and Public Order (Scotland) will put Scotland on a distinct path from England and Wales, with more widely scoped law and only generic, and therefore unclear and unreliable, protections for freedom of expression. 

In England and Wales, the appeal ruling in Harry Miller v College of Policing put an end to the perception based NCHI policy that grew out of Macpherson. Under a new statutory Code of Practice officers south of the border  are now expected to weigh up the gravity of complaints Those deemed trivial, irrational, malicious, or without basis should not be recorded. The UK Government has also rejected law commission proposals to expand the legislative framework on a similar model to Scotland. 

In Scotland, the single service has yet to catch up on the Miller ruling, whilst the Scottish Government has sought to extend its legislative reach. Just as gender recognition reform in Scotland sought to cement self-identification principles in law, the Hate Crime and Public Order (Scotland) Act will help cement a longstanding unregulated and subjective “hate crime” agenda, affording new opportunities to weaponise “hate” based on nothing more than an unpredictable interpretation of what constitutes “abusive”.