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Police in Scotland have been accused of 'making it up as they go' and favouring the famous after they refused to go after JK Rowling or Humza Yousaf - but did take action on Murdo Fraser's post calling 'non-binary as valid as identifying as a cat'.
As anger over Scotland's controversial hate crime law continues to grow, Conservative MSP Mr Fraser has demanded 'urgent clarity' from Police Scotland chief constable Jo Farrell.
Last November, Mr Fraser was found to have committed a non-crime hate incident (NCHI) after he tweeted: '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.'
An NCHI is when a complaint does not meet the threshold for a crime but is perceived to be 'motivated (wholly or partly) by malice and ill-will towards a social group', according to Police Scotland guidance.
At the time, he said he was 'found guilty' of 'hate' by Police Scotland. But he has now questioned the consistency of the laws after comments made by Harry Potter author JK Rowling and Scotland First Minister Mr Yousaf were not logged.
The force confirmed this week that a series of tweets made by JK Rowling - in which she referred to 10 high-profile trans women including convicted sex offenders as 'men, every last one of them' - did not meet the threshold for crime or a NCHI.
Police Scotland also said Mr Yousaf's speech about 'often being the only non-white person in the room' - which he gave while he was justice secretary - would not be logged as an NCHI.
Conservative MSP Murdo Fraser has accused Police Scotland of 'making it up as they go'
As anger over Scotland's controversial hate crime law continues to grow, Conservative MSP Mr Fraser has demanded 'urgent clarity' from Police Scotland chief constable Jo Farrell
Mr Fraser's comments last year were logged as an NCHI but Police Scotland said Humza Yousaf and JK Rowling's would not be
Mr Fraser, who is considering legal action against Police Scotland, claimed the force's decision was politically biased
In response to seeing her comments would not be recorded as an NCHI, JK Rowling tweeted: 'Again, I trust everyone will be treated the same way if they express themselves similarly. Nobody should have a 'Hate Incident' logged against them for accurately describing, or asserting the importance and reality, of biological sex. We must all be equal under the law.'
Scotland's new hate crime law criminalises 'stirring up hatred' against a number of protected characteristics including age, transgender identity, disability and people who are intersex - but has sparked protests amid fears it will restrict free speech.
The Scottish Government has previously said deliberately misgendering someone - referring to someone by pronouns other than those that they prefer - would not be criminalised under the new legislation.
Rowling - who had dared police to arrest her - had posted a series of tweets in which she spoke out against 10 trans women, including double rapist Isla Bryson, who was jailed for eight years last year for raping two women.
The attacks were carried out when Bryson, born Adam Graham, was a man.
Mr Fraser, who is considering legal action against Police Scotland, has written a letter to the chief constable about his concerns.
He said: 'I am writing to you concerning Police Scotland yesterday announcing, that contrary to its stated policy, NCHIs would not be recorded in relation to comments made by First Minister Humza Yousaf and the author JK Rowling. I have a number of serious questions which arise from this and for which I would be grateful to have your urgent response.'
He also claimed the force's decision was politically biased.
Reacting to Mr Yousaf and Ms Rowling's remarks not being recorded as NCHIs, he said: 'This decision means Police Scotland have not only breached their own policy on recording non-crime hate incidents, but now appear to be making it up as they go along.
'They have taken a different approach to comments made by the SNP first minister to those made by an opposition politician. It is hard not to conclude that Police Scotland has been captured by the SNP policy agenda and that this is a decision that reeks of political bias.
'I hope the chief constable will contact me urgently with an immediate apology for recording a hate incident against me and confirming all records in relation to it have been destroyed. They should also ditch their existing unlawful policy — as has been done in England and Wales — which I believe is a clear breach of people's human rights.'
It comes as the Scottish Tories estimate that 1.4million complaints could be made under the controversial new law in the first year.
A protest against the new hate crime laws took place outside the Scottish Parliament on April 1, the day the legislation came into effect
Humza Yousaf (pictured on Monday) has received more complaints under Scotland's new hate crime bill than JK Rowling , it has been revealed today
Calum Steele, the former general secretary of the Scottish Police Federation, said that around 3,800 cases were logged within the first 24 hours of the act coming into force Monday.
The Scottish Tories have claimed that if the rate continues for the next 12 months, a total of 1.387 million crimes will be reported during 2024/2025 financial year.
Mr Yousaf is believed to be the subject of the most complaints under the Hate Crime and Public Order (Scotland) Act, which creates a new crime of 'stirring up hatred' towards certain protected characteristics.
These are a person's age, disability, religion, sexual orientation, transgender identity or being intersex.
An insider told the Sun: 'A lot of those complaints were about Humza Yousaf, on the same complaint about his parliamentary rant. JK Rowling has had some, but not as many as Humza Yousaf.'
A 2020 video of Mr Yousaf speaking in the Scottish Parliament in the wave of the Black Lives Matter protests has been circulated for years, out of context, by far-right Twitter accounts seeking to portray the First Minister as racist.
Some of the posts made by JK Rowling on X/Twitter on transgender women, which police say did not meet the criminal threshold when assessed under Scotland's new hate crime laws
Bryson, 31, formerly known as Adam Graham, from Clydebank, West Dunbartonshire, was moved to a men's prison after an outcry
In the clip, the SNP leader tells of how people are often surprised he is the only 'non-white person in the room' at most of the meetings he attends.
He then adds: 'The Lord President is white, the Lord Justice Clerk is white, every High Court judge is white, the Lord Advocate is white, the Solicitor General is white, the chief constable is white, every deputy chief constable is white, every assistant chief constable is white, the head of the Law Society is white, the head of the Faculty of Advocates is white and every prison governor is white.'
Mr Yousaf was seeking to highlight how few people of colour are in positions of power in Scotland's parliament and government - but far-right activists stripped the clip of context and sought to suggest he was calling for a reduction in the number of white people in Scotland.
News agency Reuters issued a fact-checking note on the video after Elon Musk, owner of troubled social network X, formerly Twitter, branded Mr Yousaf a 'blatant racist' in response to a post of the video from a well-known right-wing account.
Police Scotland said complaints were received at the time of the debate but were not deemed to have met the threshold of a crime. They also confirmed comments from before midnight on April 1, 2024, would be looked at under older legislation.
The First Minister's remarks will also not be logged as an NCHI.
A Police Scotland spokesperson also said: 'We have received a number of complaints in relation to a speech in the Scottish Parliament on June 10, 2020.
The hate crime bill, introduced on Monday, criminalises 'threatening or abusive behaviour' intended to stir up hatred against someone's identity
Women's rights campaigners have hit out at Scotland's new hate crime law (pictured: protests outside the Scottish Parliament on April 1)
Opponents of the law say it will threaten free speech - but the SNP has insisted it will protect freedom of expression
'Earlier complaints regarding this matter were assessed at the time and it was established no crime was committed and no further action was required.'
NCHIs have been around for many years and are not part of the new Hate Crime and Public Order Act - but critics fear the new legislation could lead to an increase in hate incidents being logged against innocent people.
Joanna Cherry, the SNP MP, said: 'It seems Police Scotland are revising their policy on recording non-crime hate incidents on the hoof in order to avoid the embarrassment of recording incidents against an internationally, renowned author & philanthropist & the First Minister of Scotland.
'This really isn't good enough & calls into question the application of the policy to date. The policy should be applied equally to everyone.
'Police Scotland should wipe their existing database of non-crime hate incidents and carry out a proper review of their policy in line with the principle of equality before the law.'
Joanna Cherry, the SNP MP, said: 'It seems Police Scotland are revising their policy on recording non-crime hate incidents on the hoof...'
It comes as Siobhian Brown, the SNP community safety minister, said 'misinformation and hysteria' have led to wrongful assumptions about the legislation.
She also said that one of the 4,000 complaints made to Police Scotland since it came into effect was submitted by someone pretending to be her.
'I think also, in the last couple of weeks, there has been a lot of misinformation and hysteria regarding this bill being introduced,' she told BBC Radio Scotland.
'I was surprised myself on Monday to receive a call from Police Scotland about my complaint - this was a fake complaint someone had done anonymously in my name, and gave my office number.
'I think this shows the publicity and misinformation that's out there about this Act, that people are making fake and vexatious complaints.'
Since the law came into effect, a house close to Mr Yousaf's in the Dundee suburb of Broughty Ferry has been daubed with racist graffiti containing derogatory references to Muslims and Pakistani people.
It has been universally condemned by the leaders of Scotland's political parties, and police are investigating.
Elsewhere, the decision not to investigate Rowling's comments prompted an outcry from transgender newsreader India Willoughby - one of the 10 trans women targeted in the writer's thread of tweets - who accused officers of getting 'stardust in their eyes'.
But on Tuesday, Rowling responded to the decision, writing online: 'If they go after any woman for simply calling a man a man, I'll repeat that woman's words and they can charge us both at once.'
She was supported by X owner Elon Musk - who has a transgender daughter, Vivian Jenna Wilson, who has distanced herself from her father - as he responded to the tweet with a fire emoji.
Musk has voiced his opposition to the new hate crime law, which carries penalties of up to seven years in prison in the most severe cases.
Rowling - who also writes under the male pen name of Robert Galbraith - was also given support by the Prime Minister, Rishi Sunak , who said on Tuesday: 'We should not be criminalising people for saying common-sense things about biological sex .'
What is the Hate Crime Act?
The Hate Crime and Public Order (Scotland) Act, passed in 2021, followed a review of hate crime legislation by Lord Bracadale.
There has been a statutory offence of incitement to racial hatred since 1965 but the 2021 Act creates other offences of 'stirring up' hatred in several other categories.
These are called 'protected characteristics': age, disability, religion, sexual orientation, transgender identity and 'variations in sex characteristics' (relating to 'physical and biological characteristics of the body').
What does 'stirring up' hatred mean and how can you break the law?
It is conduct which encourages others to hate a particular group of people.
To fall foul of the law, you would have to behave in a manner that a 'reasonable person' would consider to be threatening or abusive – or, in the case of racial hatred, insulting.
The law also applies to communication of material – for example on social media – in addition to comments or behaviour.
Other crimes, such as assault, can be 'aggravated' by offences under the Hate Crime Act, if a motivation of 'malice and
ill-will' can be shown towards someone with 'protected characteristics' – for example if someone is assaulted because of their race or disability.
What is a 'reasonable person'?
A 'reasonable person' is an ordinary citizen, famously referred to by Lord Devlin as the 'man on the Clapham omnibus' – and it is a test used in other areas of the law.
The test is intended to be objective so a police officer
or prosecutor has to put themselves in the position of a 'reasonable person' to make a judgment about potentially unlawful comments or behaviour.
What are the possible penalties?
Someone convicted of stirring up hatred under the Act after a jury trial could be jailed for seven years, or be hit with a fine, or both.
For a less serious offence – tried by a sheriff sitting without a jury – they could be jailed for a year, or fined, or both.
Is there any legal defence to a charge under the Act?
Yes – it is a defence to show your behaviour or commun-ication was 'reasonable' in the circumstances.
When considering reasonableness, there must be 'particular regard' to the importance of the right to free speech – even when it is offensive, shocking or disturbing.
Under the Hate Crime Act, the threshold of criminal liability is not that a victim feels offended but that a reasonable person would consider the perpetrator's action or speech to be threatening or abusive.
Do all minorities covered by the Act have the same legal protection?
No, there are differences. 'Race' includes nationality and citizenship as well as colour and ethnicity.
The offence of stirring up racial hatred can be committed not only where behaviour or communication is threatening or abusive, but also where it is insulting.
This is not the case for sexual orientation, transgender identity, age or disability.
For these categories, it is not an offence if actions or speech are merely insulting – they would have to be threatening or abusive and intended to stir up hatred.
What about religion?
'Discussion or criticism' of religion is permitted under the Act – together with 'expressions of antipathy, dislike, ridicule or insult'.
Stirring up hatred on religious grounds is an offence, but the threats or abuse 'would have to be truly outrageous before the criminal law was interested', according to legal expert Professor Adam Tomkins, a former Tory MSP.
Ridiculing or even insulting someone's religion might be unwelcome – but it would not be criminal under the Hate Crime Act.
Does the law apply only in public?
No – it also applies to private homes, not just to comments or behaviour in public, raising the possibility that dinner party conversations could be criminalised.
Critics say this level of state intrusion is unjustifiable and Lord Bracadale, who carried out the review which led to the new law, was opposed to the move.
Professor Tomkins, a legal expert at Glasgow University, backed the broad principles of the Act – but ultimately voted against it while an MSP over the extension of its reach to people's homes.
Will it undermine artistic freedom?
Police Scotland insists it will not 'target' actors and stand-up comedians who take part in productions or make jokes which could be considered to contravene the Act.
But it has said that all complaints about alleged hate crimes will be investigated – so if a spectator contacted police about a joke by Frankie Boyle, for example, it would be taken seriously.
The Scottish Police Federation (SPF), representing rank-and-file officers, has warned that the Fringe festival in Edinburgh could be 'busier than normal' this summer, as officers may have to question comedians who are the subject of hate crime complaints.
What have the police said about the Act?
The Association of Scottish Police Superintendents has warned that activists could seek to 'weaponise' the new legislation.
Officers could be swamped with vexatious complaints – at a time when Police Scotland has said it will no longer investigate minor crimes.
It also warns that public trust in the police could be damaged if the service is drawn into online spats – taking officers away from investigating more serious crime.
The SPF has said officers have not received adequate training – and believes that not all of them will have been trained in enforcement of the new legislation by today.
Will 'misgendering' be a criminal offence under the Act?
Women's campaigners say no explicit safeguards have been written into the law to protect those who insist that (for example) people cannot change sex, or that only women can be lesbians.
First Minister Humza Yousaf claims that 'if you were to say a trans man is not a real man or a trans woman is not a real woman, you would not be prosecuted' – as long as you did not intend to stir up hatred.
JK Rowling has said she will not delete social media posts which could breach the 'ludicrous' law after she was embroiled in a misgendering row with transgender broadcaster India Willoughby.
What is a 'hate incident'?
The recording of 'non-crime hate incidents' pre-dates the Hate Crime Act – but there could be more of them as a result of its implementation.
Officers can log an incident where no criminality has been proven to build up a picture of the prevalence of racial tension, for example, in the community, and reports can be made by third parties – such as someone who overhears a remark and believes it could be a hate crime.
Tory MSP Murdo Fraser revealed last week he was the subject of a non-crime hate incident after a trans activist reported him over a tweet critical of SNP Government non-binary policy.
Mr Fraser is threatening legal action against Police Scotland to have the policy scrapped.
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