Enforcing Scotland’s new Hate Crime Act will “certainly” reduce public trust in the police, according to the general secretary of the Scottish Police Federation.
David Kennedy told BBC Radio 4’s Today programme that the law, which came into force on Monday and requires officers to assess “emotive” subjects such as online misgendering, “will cause havoc with trust in police in Scotland, it certainly will reduce that”,
The Hate Crime and Public Order (Scotland) Act is intended to consolidate existing hate crime laws, but also creates a new offence of “threatening or abusive behaviour that is intended to stir up hatred” on the grounds of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.
Scottish government ministers have insisted there is a “very high threshold” for prosecution and a “triple lock” on freedom of expression contained in the act. However, over the past few weeks there have been escalating concerns about how it will be policed and how it might affect freedom of speech, with fears it could be used maliciously against certain groups for expressing their opinions, in particular gender-critical feminists.
In common with many critics who have raised concerns about the act’s lack of clarity, Kennedy told Today that he thought it would have to be tested in the appeal courts before the “real elements of the act and how they should be interpreted in law will come into fruition”.
He added that at a time of diminishing police numbers, the force had been allocated no extra money to provide training, and that preparation was limited to a two-hour online module, echoing comments made on Sunday by Rob Hay, the president of the Association of Scottish Police Superintendents, who said officers were being placed “in a really difficult position”.
Hay told BBC Scotland’s Sunday show: “Our concern is that it could impact through a huge uplift, potentially, in reports – some of those potentially made in good faith but perhaps not meeting the threshold of the legislation.
“Or potentially in cases where people are trying to actually actively use the legislation to score points against people who sit on the other side of a particularly controversial debate.”
Also speaking on the Today programme on Monday, the Scottish government’s minister for victims and community safety, Siobhian Brown, said she had “faith in Police Scotland” to deal with vexatious complaints.
Brown underlined that the new act included “a very high threshold” for criminality. She said: “What would have to be said online or in person would be threatening or abusive, if you’re conveying a personal opinion that is challenging or offensive that would not be … criminal.”
Asked specifically if misgendering someone online was a crime, Brown said “not at all”, but pressed on the issue she qualified that it “could be reported and it could be investigated, whether or not the police would think it was criminal is up to Police Scotland”.
Police representatives have said that members of the public could feel aggrieved if their details were recorded by police, having received a report of a hate crime but decided the bar for prosecution was not met. The threshold for these “non-crime hate incidents” appears to be lower and more subjective according to guidance.
