Officers will take common sense approach to hate crime law, police chief vows

Jo Farrell

Scotland’s top police officer has said a balance will be struck between freedom of expression and alleged crimes under the new hate crime law.

Police Scotland Chief Constable Jo Farrell said the Hate Crime and Public Order (Scotland) Act could place an additional demand on policing, but she did not give a figure when asked if the resource needed had been estimated.

The law, passed in 2021, comes into effect in April and makes it an offence to stir up hatred against protected characteristics, including age, disability, religion, sexual orientation and gender identity.

It has proved controversial, with critics – including JK Rowling and Elon Musk – concerned about its impact on freedom of speech.

Somebody’s view, while you might not like it or agree with it, does not become a criminal offence

Police Scotland Chief Constable Jo Farrell

Ms Farrell told a board meeting of the Police Scotland oversight body, the Scottish Police Authority, on Thursday that the force is used to enforcing new legislation and officers are being trained to apply the law in a “measured way, using their discretion and their common sense”.

She said: “We’re a rights-based organisation and our officers balance human rights against individual laws every single day, and this new hate crime Act is no different. In fact it contains a specific reference to the protections people have around freedom of expression.”

She said “hate crime is deplorable and it can cause deep psychological harm”, and officers will apply the new law “proportionately and uphold people’s right of expression”.

The SPA’s complaints and conduct committee chairwoman, Katharina Kaspar, said: “Credible voices from judicial sector and human rights organisations have said they do not consider the safeguards to be sufficient.

“The concerns that have been expressed is that by the time an allegation is made and an investigation starts, the process of the investigation itself can become a punishment which may have a chilling effect on the freedom of expression.”

A spokesman for Prime Minister Rishi Sunak has also raised the “potential for chilling effects on free speech” while confirming such legislation would never be introduced in England.

Ms Kaspar said the training in place is “encouraging” but is an “insufficient control”.

She added: “A lot of people will think that ‘I don’t want to be investigated and I don’t want my name to be reported. I’d rather not express an opinion which I perfectly legitimately can express, I’d rather not do that’.

“In addition to training, how will you know that the process does not become the punishment in this case?”

Ms Farrell said: “In relation to your point around freedom of expression, quite clearly that is one of the human rights that we uphold. That is something that runs through our cultural norms and our application of legislation currently and in the future.

“What the legislation says and the training reinforces is that somebody’s view, while you might not like it or agree with it, does not become a criminal offence.

“A really important part of an open democracy that this country has is that people are able to have that freedom of expression.”

She said any chilling effect will be guarded against through “tight quality assurance” and keeping a “very, very close eye on ensuring that we find the balance between alleged criminality and freedom of expression”.

Ms Kaspar asked her whether the resource needed to investigate every single hate crime allegation as is pledged had been estimated.

Ms Farrell said: “Part of our response as the legislation beds in is to keep obviously close scrutiny in relation to the volume, in relation to type of crime that’s being reported, what are the implications, a quality assurance to our response so that we are applying the legislation appropriately.”

Ms Kaspar also questioned how the chief constable would “square” the rollout of a pilot project not to investigate crimes with no associated threat, risk, harm or vulnerability and no lines of inquiry with investigating every hate crime allegation.

Ms Farrell said hate crime allegations would “sit aside” from the project rollout as they involve potentially vulnerable victims.

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