Police handling of MSP trans cat tweet row ‘unreasonable'

Telegraph

01-04-2025

Police Scotland falsely dismissed a Tory MSP's complaints about the force logging a non-crime hate incident against him after he compared non-binary people with those who identify as cats.
The Police Investigation and Review Commissioner (PIRC) said the force failed to rebut Murdo Fraser's claim that he had been treated differently to JK Rowling and Humza Yousaf, the former first minister.
A 17-page ruling issued by the watchdog, and seen by The Telegraph, found that Police Scotland also failed to acknowledge that Mr Fraser's personal data had been recorded on police systems.
It said the force had not addressed the 'crux' of the MSP's allegation that its guidance to officers on how to investigate and record hate crimes was unlawful.
The review concluded that 'Police Scotland did not handle the complaints to a reasonable standard', and ordered the force to carry out a 'further inquiry' within two months.
A jubilant Mr Fraser said the ruling was a 'devastating rebuff to Police Scotland' and the force had been 'sent homewards to think again' about its use of non crime hate incidents (NCHIs).
He said the force had been operating an 'unlawful' policy that stifled free speech, and was being given 'one last chance' to explain why he had been treated differently from a former SNP first minister.
Mr Fraser, a Mid Scotland and Fife MSP, was reported to the police by a member of the public in November 2023 after he shared a post on social media about the Scottish Government's transgender policies. He wrote:
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. https://t.co/inYHH2iPkq
— Murdo Fraser (@murdo_fraser) November 18, 2023
Police Scotland judged that the post was not a crime, but still logged it as a NCHI, without telling him. After finding out, he tried unsuccessfully to get the force to withdraw the NCHI, but the force refused, saying it adopted a 'victim centred approach'.
The MSP's lawyers wrote to PIRC in November last year, stating that Police Scotland had broken down his complaint into three allegations, all of which had been rejected 'without foundation'.
They argued that the decision breached his right to freedom of expression, and the force could not explain why he had been targeted when no NCHIs were recorded against Mr Yousaf or Ms Rowling for other controversial statements.
Only hours after the SNP's controversial hate crime laws came into force a year ago, Ms Rowling posted pictures of 10 high-profile trans people and ridiculed their claims to be women. She then challenged police to arrest her.
The police also received multiple complaints about a speech by Mr Yousaf in a 2020 Holyrood debate challenging racism in the wake of the murder of George Floyd in May that year. He said, '99 per cent of the time', he was 'the only non-white person' in the room during government meetings. The footage has since been used to claim he is bigoted, which he has vigorously denied.
The PIRC report also follows a public backlash against NCHIs, incidents that fall short of being criminal but are perceived to be motivated by hostility or prejudice towards a person with a particular characteristic.
Campaigners have warned of their chilling effect on free speech and in November, Allison Pearson, the Telegraph columnist, was visited at her home by officers from Essex Police following a complaint over a social media post.
Pearson initially believed that she was being investigated for an NCHI, and the incident resulted in a public debate about their use.
Welcoming PIRC's ruling, Mr Fraser said: 'This is a devastating rebuff to Police Scotland from PIRC, and a vindication of the stance I have taken in complaining about their policy on recording NCHIs.
'On all three of my complaints – data handling, the lawfulness of the policy, and its inconsistent application – Police Scotland have been sent homewards to think again.'
'It has always been clear to me that the police have been operating a policy which is unlawful and a breach of human rights in that it stifles free speech. Moreover, they have treated me as an opposition MSP differently from a SNP First Minister, with no credible explanation. Now they have one last chance to try and justify their stance.'
Three complaints
PIRC reviewed Police Scotland's handling of three complaints lodged by Mr Fraser, the first of which stated that an NCHI should not have been logged about his social media post.
The second argued that the force's decision to log an NCHI was 'contrary to law', and the third alleged that the police 'did not consistently apply their policy' on the recording of such incidents.
A senior officer – titled Chief Inspector D in the PIRC report – wrote to Mr Fraser dismissing his claim that his NCHI breached the Human Rights Act, and that it represented 'unlawful interference' with his right to freedom of expression.
The officer referred to the force's Hate Crime National Guidance (HCNG), which states that 'for recording purposes, the perception of the victim or any other person is the defining factor in determining whether an incident is a hate incident'.
Chief Inspector D also told Mr Fraser that his personal details had not been recorded in the force's Interim Vulnerable Persons Database (IVPD) and there was 'no evidence' they had been inappropriately stored.
However, PIRC found that Police Scotland had logged the case on a separate, 'inextricably linked' database and it had been categorised as a 'hate incident'.
Data recorded on police systems
Upholding Mr Fraser's first complaint, PIRC said Chief Inspector D 'ought to have acknowledged that the applicant's personal data was recorded on police systems as a result of the report about the social media post; assessed whether he was satisfied that the police had followed the correct process, and whether this was consistent with the relevant guidance'.
PIRC said the chief inspector had 'made inquiries' with the force's legal services department on whether the force's hate crime guidance was lawful. However, the review said: 'It does not appear that this assessment was carried out.'
Instead the senior officer decided his response to Mr Fraser's complaint would 'provide enough explanation as to why policy is not contrary to law, but will not provide every reason'.
Chief Inspector D said this 'would allow PS (Police Scotland) to retain their arguments' in case Mr Fraser pursued legal action against the force.
However, PIRC found this was 'not in the spirit of the complaint process'.
Upholding Mr Fraser's second complaint, the commissioner said Chief Inspector D did 'not directly address the crux of the complaint'.
'Significant shortcoming'
Chief Inspector D also told the Tory MSP that he had found no evidence 'there has been any bias' or inconsistency in the way in which his hate incident had been logged.
The PIRC report found that an officer dealing with Mr Fraser's complaint had 'requested clarification' about whether 'a policy decision had been made' not to record hate incidents in relation to Ms Rowling and Mr Yousaf. However, no response was received to this request, with PIRC concluding: 'This is a significant shortcoming in the complaint inquiry in establishing the material facts.'
Upholding Mr Fraser's third complaint, the commissioner said the police response did not explain what 'incidents' were considered when deciding there was no bias.
PIRC concluded: 'We have found that Police Scotland did not handle the complaints to a reasonable standard.
'Consequently, we have issued three reconsideration directions to address the shortcomings in Police Scotland's handling of the complaints. In reconsidering the complaints, Police Scotland should carry out further inquiry and provide the applicant with a further response. Our reconsideration directions should be completed by Police Scotland within two months.'
A Police Scotland spokesman said: 'Following recent receipt of the complaint handling review from the Police Investigations and Review Commissioner (PIRC), we will consider the recommendations and a full update will be provided to the complainer in due course.'