Exclusive:Police officers could face sanctions for challenging hate crime complaints, senior figure warns

Martin Gallagher, a former Police Scotland superintendent, said the contentious new law presented an “obvious” risk for vexatious complaints being made by those intent on “public shaming” others.

The Hate and Public Order (Scotland) Act, which comes into force next month, criminalises threatening or abusive behaviour which is intended to stir up hatred based on certain characteristics including age, disability, sexual orientation, and transgender identity.

The Scottish Government has said the law will provide greater protection for victims and communities, with First Minister Humza Yousaf telling MSPs this week that the threshold for threatening behaviour had been set “incredibly high” to prevent innocent people from being criminalised.

But the legislation has drawn extensive criticism, with Katharina Kasper, chair of the Scottish Police Authority's complaints and conduct committee, warning this week that an investigation itself can “become a punishment which may have a chilling effect on the freedom of expression.”

Concerns have also been mounting that the new law, which consolidates and expands existing hate crime offences, could be used maliciously against certain groups for expressing their opinions, such as gender-critical feminists. Douglas Ross, leader of the Scottish Conservatives, has raised fears that members of the public could be criminalised “for no good reason,” describing it as “unworkable” and “dangerous.”

Similar criticisms have been echoed outwith Scotland. A Downing Street spokesman said this week that Prime Minister Rishi Sunak was concerned about the potential for the bill’s “chilling effect” on free speech, while Elon Musk, the controversial owner of social media platform, X, described it as an “example of why it is so important to preserve freedom of speech.”

Now, Mr Gallagher, the founder and director of Kilmailing Consulting, has questioned how the law will impact on day-to-day policing operations. “The police have already told the public every report will be investigated, the implication being that no matter how bizarre or unreasonable your offence may in fact be, you have the police at your beck and call,” he said. “And fact is an important part of that sentence, because much that will no doubt offend under this legislation will not be based on facts, but instead the perception of the aggrieved.

“My fear is that special interest groups will wail from April Fool’s Day onwards when this no doubt well-intentioned but ill-considered attempt to tackle ‘hate’ will be wielded as a weapon against those who comment, joke, or argue against the contested but authority supported norms of today. Every cop knows that the path of least resistance will be taking the complainers ‘offence’ at face value rather than challenging its veracity as a ‘reasonable person’.”

Referencing complaints made by the Scottish Police Federation that its members have only received a two hour online training package surrounding the legislation, which comes into force on 1 April, he added: “With two hours’ online training on 21st century Scotland’s hottest topic can we really blame them? They will more likely than not be supported internally for the former, and face likely sanction for the latter. We know from recent high-profile investigations in Scotland how much anyone can be affected by the taint of being investigated whether charged or not, and the publicity this brings. With all cases of hate crime investigated, the possibility for vexatious complaints for the purpose of bringing public shaming of individuals is obvious.”

Earlier this week, Police Scotland’s Chief Constable, Jo Farrell, said officers would apply the legislation in a “measured way, using their discretion and their common sense.” Addressing a board meeting of the Scottish Police Authority, she emphasised that a balance will be struck between freedom of expression and alleged crimes.

“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,” she said. In fact it contains a specific reference to the protections people have around freedom of expression.” Ms Farrell said hate crime “is deplorable and it can cause deep psychological harm”, and that officers will apply the new law “proportionately and uphold people’s right of expression”.

But Mr Gallagher, who served as an area commander in Paisley during his near three decade-long service with the force, said the reality was different, and that Ms Farrell’s faith in officers’ abilities to apply common sense had to be set against what he described as the “bonfire of policing principles of neutrality” that has taken place over recent decades.

“Were we to be taking a starting point where officers in Scotland are used to applying their discretion, taking a ‘reasonable person’ test in their actions, and unlikely to face sanction for doing so, this legislation, in an amended form, might very well have succeeded,” he explained. “But we are not. The office of constable, and the latitude it was once afforded, has disappeared.”

He added: “As it so often does, this comes back to Robert Peel, who said, ‘The police are the public, and the public are the police’. The public put the police in the position of having to make sense of this legislation and enforce it. Unfortunately, I fear many Scots will reap what they have sown.”