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7 months ago
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Scotland's police force has solved fewer shoplifting, theft and assault crimes in recent years, figures suggest - as frontline representatives say officers are being overwhelmed by reports made under the country's new hate crime law.
David Threadgold, chairman of the Scottish Police Federation (SPF), says Police Scotland's vow to investigate every report of hate crime has created a 'simply unmanageable' situation with around 8,000 filed in the first week.
Analysis of more than a decade of crime statistics has suggested fewer thefts, assaults and shoplifting cases are being 'solved' by officers - meaning that a perpetrator is identified and the case considered for prosecution.
Police Scotland says that it is coping with the additional demand created by the hate crime law. Many of the early reports relating to tweets made by JK Rowling and a 2020 speech by Humza Yousaf, for which the force said no action would be taken.
But Mr Threadgold says the potential the law has to be 'weaponised' for personal gain or political reasons threatens to create real problems for staff in the long run if the rate of reporting keeps up.
JK Rowling has been a consistent critic of the Scottish Government's new hate crime laws
First Minister Humza Yousaf has defended the law, claiming it is being enforced properly without infringing on freedom of speech
The law has sparked protests from gender critical campaigners and political opponents (pictured: a protest outside the Scottish Parliament on April 1, when the law came into effect)
David Threadgold, chief executive of the Scottish Police Federation, says officers are being overwhelmed by the number of hate crime reports being made
Police Scotland itself maintains that it is coping with the additional demands put upon it by the new legislation despite 8,000 complaints being made in the first week
He told BBC Radio 4's Today programme: 'Police Scotland have gone public and said that on every occasion, reports of hate crime will be investigated.
'That creates a situation where we simply cannot cope with demand at the moment.
'When you have vexatious complaints, people who look to weaponise this legislation or who make these complaints for personal gain or political point scoring, then that creates a problem for the police which can affect public satisfaction in my organisation.
'Now, the First Minister in Scotland can talk about his confidence, and Police Scotland’s ability to deal with vexatious complaints as he has done, but what we have never seen before is the scale of the complaints coming in around one piece of legislation.'
He was also critical of the two hours of training given to officers on the new legislation, which outlaws 'stirring up' hate against several protected characteristics such as age, disability, transgender identity and those who are intersex.
Some officers had not completed the video training ahead of the law coming into effect.
Mr Threadgold added: 'We’ve not given them (officers) the opportunities to ask the "what if" questions during the training that has been provided by Police Scotland to interpret this legislation to the satisfaction of the public.'
David Kennedy, general secretary of the SPF, has previously described the new law as a 'disaster', claiming less than one per cent of the complaints made were resulting in 'actual hate crime investigations'.
He has also warned that officers are being drafted in to do overtime shifts due to the overwhelming number of crimes being reported under the new act.
And frontline officer representatives have previously warned that Police Scotland risks becoming a 'reactive force', capable of only responding to major crimes such as murder and terrorism rather than those affecting people on an everyday basis.
Analysis of Police Scotland data carried out by the Telegraph suggests there has been a substantial drop in the number of crimes being 'solved' - those for which enough evidence has been gathered to consider a referral to prosecutors.
Detection rates for shoplifting have fallen from 71.3 per cent to 53.5 per cent since 2011, while the solved rate of fraud crimes - reports of which rose dramatically during lockdown - fell from 57.2 per cent in 2011 to 16.1 per cent in 2023.
The rate of sexual assault crimes being passed to prosecutors fell from 63.8 per cent to 54.2 per cent; common assault solve rates fell from 69.9 per cent to 68.2.
Detection rates for rape and attempted rape fell slightly, from 54.9 per cent to 53.3 per cent, despite the number of reports more than doubling over 13 years.
But the overall clean-up rate for crimes has improved from 52.4 per cent in 2011 to 53.3 per cent last year - while the number of crimes reported each year fell by a quarter over that same period.
Police Scotland told the paper of the drop in detection rates for some crimes: 'The data is from 2022-23 when Police Scotland officers were facing an increased demand, which was evidenced by a higher number of calls, and resources were prioritised in these areas.
'Although the challenges facing Police Scotland should not be underestimated, officers continue to provide effective policing to communities across the country.'
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
Conservative MSP Murdo Fraser has accused Police Scotland of 'making it up as they go'
Police recorded a non-crime hate incident against Mr Fraser for this tweet, in which he said choosing to identify as non-binary was 'as valid as choosing to identify as a cat'
It added in a separate statement to MailOnline: 'While we have seen a substantial increase in the number of online hate crime reports being received since April 1, these have been managed within our contact centres and have not impacted frontline policing.'
A spokesperson for the force declined to confirm how many reports had been made under the Hate Crime Act.
When the law was enacted on April Fools' Day, police were inundated with what Scottish community safety minister Siobhian Brown described as 'fake and vexatious complaints', including a hoax made in her own name.
Among the complaints were said to be thousands about tweets by JK Rowling, who described a number of high-profile trans women, including some convicted criminals, as 'men'. She dared police to arrest her for the posts.
A 2020 speech made by then-Scottish justice secretary Humza Yousaf, in which he claimed he was often 'the only non-white person in the room' in government meetings, was also the subject of many of the early reports.
Video of the speech was weaponised by far-right accounts seeking to characterise the now-First Minister as anti-white; the footage prompted Elon Musk, owner of troubled social network X, formerly Twitter, to label Mr Yousaf a 'blatant racist'.
But Police Scotland said no crime had been committed in the case of both Rowling and Yousaf - prompting India Willoughby, one of those targeted in Rowling's tweets, to accuse the force of having 'stardust in its eyes'.
She won support from Prime Minister Rishi Sunak, who said: 'We should not be criminalising saying common sense things about biological sex.'
Neither Mr Yousaf nor Rowling's remarks were labelled a 'non-crime hate incident' (NCHI), prompting fury from Tory MSP Murdo Fraser, who accused the police of 'political bias'.
Introduced in the wake of the murder of Stephen Lawrence in 1993, NCHIs are a mark for incidents judged not to be a crime, but may indicate heightened community tensions.
Mr Fraser has one to his name after he wrote on X that choosing to identify as non-binary - neither exclusively male or female - was 'as choosing to identify as a cat'.
Judy Murray, who has backed JK Rowling in an ongoing trans rights row
Responding to Rowling's post, defining a woman as 'a human being...that produces large gametes', Murray said: 'Preach'
David Kennedy, general secretary of the Scottish Police Federation, has warned police are being called in to do overtime to keep up with the hate crime reports being made
JK Rowling has previously warred with the SNP over its stance on transgender people - branding Humza Yousaf's predecessor Nicola Sturgeon a 'destroyer of women's rights'
Multi-millionaire author Rowling - who also writes under the male pen name Robert Galbraith - has continued to blast the SNP's new Hate Crime and Public Order Act on the site, where she has 14.1 million followers.
In a 709-word tweet later hailed by Judy Murray, mother of tennis star Andy, the Harry Potter writer defined a woman as a person 'who belongs to the sex class that produces large gametes'.
Rowling, who has denied previous claims she is transphobic, said in the essay that she felt 'nothing but sympathy for anyone' suffering from gender dysphoria - the mismatch someone can feel between their birth sex and their chosen gender.
She added: 'I want them to be free to dress and present themselves however they like and I want them to have exactly the same rights as every other citizen regarding housing, employment and personal safety.
'I do not, however, believe that surgeries and cross-sex hormones literally turn a person into the opposite sex, nor do I believe in the idea that each of us has a nebulous "gender identity" that may or might not match our sexed bodies.'
Sharing the lengthy post, Murray simply said: 'Preach.'
The Scottish Government has continued to defend the new hate crime laws despite criticism from gender-critical campaigners, political opponents and frontline police representatives.
Speaking to the BBC's HardTalk programme, Humza Yousaf said he did not have any worries about the legislation's potential impact on freedom of speech.
'I see no evidence of people being silenced in terms of their gender critical views,' Mr Yousaf told the programme.
'Any cursory glance at any social media platform would suggest that those views are not being silenced.'
He has previously labelled Rowling's tweets about trans women - including convicted sex offenders Isla Bryson and Katie Dolatowski - as 'offensive and upsetting', prompting the author to accuse him of 'bumbling incompetence and illiberal authoritarianism'.
Some of the other groups now protected under the new hate crime law, meanwhile, say the protections afforded to them risk being buried in the trans rights row.
The legislation builds upon Scotland's previous race hate crime laws to protect other characteristics such as age, disability and religion from discrimination.
Adam Stachura, Age Scotland’s policy director, told the Guardian: 'Let’s not forget the majority of this is about addressing significant acts of hate because of who you are – being shouted at in the street because you’re in a wheelchair, physically attacked for holding hands with a same-sex partner, or because you are old and are seen as an easy or vulnerable target.'
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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