To ask the Scottish Government what discussions it has had with Police Scotland and the Scottish Police Authority regarding plans to incorporate any precedent set by the Miller v College of Policing case into the recording of non-crime hate incidents. (S6O-03335)

The United Kingdom-wide practice of recording non-crime hate incidents dates back to recommendations in the 1999 Stephen Lawrence inquiry report. The College of Policing recently published updated guidance on the matter for England and Wales, and, although the guidance is not directly applicable to Police Scotland, it is currently reviewing it. If there are proposed changes, they will be subject to consultation.

How hate crime is investigated and recorded is an operational matter for Police Scotland. However, I have discussed the issue with the chair of the Scottish Police Authority and will do so again, and I will raise it with the chief constable when we next meet.

The cabinet secretary is correct in saying that my concern relates to Police Scotland and the fact that, at the moment, we appear to have an unclear process—at least in the eyes of the public—as to what is termed a non-crime hate incident. My concern is that a number of people may have sought a subject access request notice and found themselves egregiously believing that their name has been recorded. Has the cabinet secretary explored that possibility with Police Scotland as part of her deliberations, or does she intend to do so?

I have to be clear that this is an operational matter, but I would hope that my conversations with the SPA and Police Scotland will cover a range of matters, many of which have been raised directly with me in the chamber. I agree that clarity on these matters is important. My understanding is that Police Scotland considers the work to review the guidance and the code that was published by the College of Policing to be a priority. It is progressing matters and will come to a conclusion shortly. Thereafter, if there are any changes, it will consult with its officers, stakeholders and staff associations. I will endeavour to keep the member updated.

In her response to Michelle Thomson, the cabinet secretary indicated that Police Scotland is still applying its pre-existing policy on recording non-crime hate incidents. Can she clarify that that policy is being applied on an even-handed basis? Evidence would suggest that that is no longer the case.

I state unequivocally that I have faith in Police Scotland as an organisation that has human rights at its core and that will apply the law and its own procedures fairly and without fear or favour to any party. If Mr Fraser would like to further explore any issues, I would be more than happy to do that, notwithstanding that this is an operational matter.

There is some confusion on the matter, and I am further confused by the cabinet secretary’s answer. She said that the police apply the law. Is hate incident reporting the law or is it a process? If it is a process, given that England and Wales dropped it last year, and given that I have already raised the matter, does the cabinet secretary share my concern about that? Is the Government content that putting something into someone’s record that is not required by law complies with human rights law—or am I confused? I think that we need to get the matter resolved as soon as possible.

As I said in response to colleagues, the matter is being considered as a priority by Police Scotland. It is important to acknowledge that, although the original ruling and the information that has come from the College of Policing are not directly applicable to Scotland, it is imperative that we look at those in order to evaluate them and consider them.

With regard to what the ruling said, in brief, the judge held:

“That is not to say that perception-based recording of non-crime incidents is per se unlawful, but that some additional safeguards should be put in place”.

That is what those with operational responsibility are seeking to address, to ensure that we can have maximum clarity and confidence.

However, non-crime hate incidents are separate from the hate crime legislation, and Police Scotland has been clear that those incidents are predicated on the vulnerability of the complainer and are used primarily to determine what care and support can be provided to them. Those incidents are not recorded against the alleged perpetrator of the NHCI. They can be recorded on a vulnerable person database, but there is no direct link between the database and systems used for disclosure checks.

I appreciate the complexity of the responses, but they need to be briefer.

Question 5 was not lodged.