Fury as Scotland’s new Hate Police ‘tell woman they are discarding her complaint about a Star of David merged with a Swastika in Facebook post made by SNP minister’s relative

• Police Scotland is embroiled in a row over the controversial hate crime laws  

Police Scotland was last night embroiled in an extraordinary hate crime row amid claims a woman who reported an anti-Semitic Facebook post ended up being quizzed about her own ethnicity.

A former police officer reported the post, which depicts a Nazi swastika within a Star of David, to the force but claims she was told no charges would be brought because she is not herself Jewish.

The post, made by a relative of an SNP minister we have chosen not to name, is captioned ‘Nazism = Zionism’.

The woman, who does not wish to be identified for fear of reprisals, said she alerted Police Scotland – but claimed that she was then quizzed about her own background.

Within an hour of giving a statement on Saturday, she said officers told her that the complaint was being discarded because she is not Jewish.

It is the latest issue to be raised with regards to Humza Yousaf’s controversial Hate Crime and Public Order (Scotland) Act, which means any allegations made may be reported by anyone.

And the test of whether a crime has been committed is if a ‘reasonable person would consider the communication of the material to be likely to result in hatred being stirred up against a group’, which includes a nationality or religion.

READ MORE: One complaint a minute being made under shambolic Scots hate law as almost 8,000 complaints leave police swamped  

The woman said that she informed police on Thursday and was invited to make a statement on Saturday at her local station in Lanarkshire.

She said: ‘They were very much for not taking the complaint at all. One said, ‘We’re snowed under with all these complaints.

‘How are we supposed to get through all these?’ I said, ‘That’s not my problem. The First Minister has said he wants people to report these things; he’s very keen for everything to be reported’.

‘The officer called me later that afternoon. He said, ‘Can I ask you, are you Jewish?’ I said no. He said, ‘I’m going to ask you again; it’s just because I need the box ticked. Do you identify as being Jewish?’ I said no, I’m not going to lie to get anybody charged.

‘He said, ‘Well, that falls outwith the parameters. It won’t be moving forward as a crime. It will be logged as an incident, but it will not be going further criminally’.’

Drawing comparisons of contemporary Israeli policy to that of the Nazis constitutes anti-Semitism under the International Holocaust Remembrance Alliance’s definition of the word.

The Scottish Government adopted the definition in 2017.

Scottish Conservative justice spokesman Russell Findlay said: ‘This vile anti-Semitic post appears to be a genuine crime motivated by hatred and which would therefore merit an appropriate policing response.

READ ALSO: JK Rowling is ‘spreading disinformation’ about Scotland’s new hate crime laws says Humza Yousaf after Harry Potter author slammed his ‘bumbling incompetence and illiberal authoritarianism’ 

‘It is deeply concerning if such cases are being lost amidst the vast deluge of spurious complaints being made to police from those who are weaponising Humza Yousaf’s hate crime law.’

Mr Findlay added: ‘It is concerning that this material appears to have been posted by a close relative of an SNP government minister.

‘For the sake of public confidence in the police, it is now all the more important that officers are seen to be applying the law consistently.’

The image at the centre of the row was shared by a Facebook user in Renfrewshire last Monday, hours after the hate crime laws came into force.

Sammy Stein of Glasgow Friends of Israel said: ‘In the current climate, many Jewish people will be afraid to make complaints in case they have to give evidence in court and are identified.

‘So it is important that Police Scotland takes seriously and investigates anti-Semitism no matter who brings it to their attention. 

‘The law itself makes no distinction. I do not think for a minute Police Scotland is being partial, but I wonder whether, with the weight of complaints, a rather amateurish attempt has been made to get rid of some.’

The complainant told the Mail she was interviewed for 30 minutes by two constables.

The woman attended a vigil in Glasgow for the Gaza hostages earlier this year and made friends with Jewish people she met.

One showed her the Facebook post last week, prompting her police report.

READ HERE:  Police chief reveals less than one per cent of all ‘hate crimes’ reported in Scotland are turning into ‘actual investigations’ – as JK Rowling leads backlash against Humza Yousaf’s ‘authoritarian’ law

She said: ‘I’m not a political activist, but I do hate anti-Semitism. People on a Saturday are going into Glasgow and shouting: ‘Death to this’ and ‘Death to that’. This mentality existed before, but it has been enabled and allowed to fester in the last six months.

‘We need to nip this behaviour in the bud. It’s like going back almost 100 years to central Europe. It’s being allowed and nobody’s standing up. I am offended, and I’m not Jewish.’

She stressed she did not report the post because it was made by a minister’s relative.

The woman said: ‘Did it influence my decision? No, because no matter who, I will report it. I said to the police, I’m not a political activist, I’m not scouring posts to see something.

‘At the end of the day, he is surely a respected member of his community if his relative’s a minister.

‘Surely there’s an element there that tells you that you shouldn’t be doing that. You should be switched on enough to know this is unacceptable.’

Police Scotland said it was unable to comment on the woman’s claim that the Facebook post was not being treated as a crime because she is not Jewish.

It comes as it was claimed that less than one per cent of all ‘hate crimes’ reported in Scotland are turning into ‘actual investigations’. 

A spokesman said: ‘We received a report of offensive content online, which is being investigated. Inquiries are ongoing.’

David Kennedy, the general secretary of Scotland’s police federation, has been heavily critical of the new hate crime laws since they were introduced on Monday and described it as a ‘disaster’.

‘The number of complaints that translated into actual hate crime investigations is extremely small,’ he told the Sunday Times. 

‘I believe that less than 1 per cent of these complaints are translating into actual hate crime investigations.’

It comes after the Mail on Sunday revealed that police in Scotland have been swamped with almost 8,000 complaints since the introduction of the hate crime laws.

Control room officers are battling to keep on top of the backlog – equivalent to one grievance every minute.

Amongst the act’s loudest critics is JK Rowling who has been extremely critical of SNP’s hate laws and shared photos of 10 high-profile trans people – including convicted sex offenders – and ridiculed their claims to be women.

Rowling wrote on X/Twitter: ‘Most of Scotland is upset and offended by Yousaf’s bumbling incompetence and illiberal authoritarianism, but we aren’t lobbying to have him locked up for it.’

But speaking at Glasgow’s Prestwick Airport on Saturday, Mr Yousaf said: ‘There’s deliberate misinformation being peddled by some bad actors across Scotland – it’s hardly surprising the Opposition seek to do that. 

‘What we’ve got is a piece of legislation that in the actual Act itself, explicitly in black and white, protects freedom of expression, freedom of speech.’ 

A Scottish Government spokesman said: ‘We have worked with partners, including Police Scotland, to ensure effective implementation of the Act, and the timetable for commencement has allowed for the delivery of a robust package of training and guidance for police officers.

‘Training officers is an operational matter to Police Scotland.’

What is the Hate Crime Act? 

The Hate Crime and Public Order (Scotland) Act, passed in 2021, followed a review of hate crime legislation by Lord Bracadale.

There has been a statutory offence of incitement to racial hatred since 1965 but the 2021 Act creates other offences of ‘stirring up’ hatred in several other categories.

These are called ‘protected characteristics’: age, disability, religion, sexual orientation, transgender identity and ‘variations in sex characteristics’ (relating to ‘physical and biological characteristics of the body’).

What does ‘stirring up’ hatred mean and how can you break the law?

It is conduct which encourages others to hate a particular group of people.

To fall foul of the law, you would have to behave in a manner that a ‘reasonable person’ would consider to be threatening or abusive – or, in the case of racial hatred, insulting.

The law also applies to communication of material – for example on social media – in addition to comments or behaviour.

Other crimes, such as assault, can be ‘aggravated’ by offences under the Hate Crime Act, if a motivation of ‘malice and

ill-will’ can be shown towards someone with ‘protected characteristics’ – for example if someone is assaulted because of their race or disability.

What is a ‘reasonable person’?

A ‘reasonable person’ is an ordinary citizen, famously referred to by Lord Devlin as the ‘man on the Clapham omnibus’ – and it is a test used in other areas of the law.

The test is intended to be objective so a police officer

or prosecutor has to put themselves in the position of a ‘reasonable person’ to make a judgment about potentially unlawful comments or behaviour.

What are the possible penalties?

Someone convicted of stirring up hatred under the Act after a jury trial could be jailed for seven years, or be hit with a fine, or both.

For a less serious offence – tried by a sheriff sitting without a jury – they could be jailed for a year, or fined, or both.

Is there any legal defence to a charge under the Act?

Yes – it is a defence to show your behaviour or commun-ication was ‘reasonable’ in the circumstances.

When considering reasonableness, there must be ‘particular regard’ to the importance of the right to free speech – even when it is offensive, shocking or disturbing.

Under the Hate Crime Act, the threshold of criminal liability is not that a victim feels offended but that a reasonable person would consider the perpetrator’s action or speech to be threatening or abusive.

Do all minorities covered by the Act have the same legal protection?

No, there are differences. ‘Race’ includes nationality and citizenship as well as colour and ethnicity.

The offence of stirring up racial hatred can be committed not only where behaviour or communication is threatening or abusive, but also where it is insulting.

This is not the case for sexual orientation, transgender identity, age or disability.

For these categories, it is not an offence if actions or speech are merely insulting – they would have to be threatening or abusive and intended to stir up hatred.

What about religion?

‘Discussion or criticism’ of religion is permitted under the Act – together with ‘expressions of antipathy, dislike, ridicule or insult’.

Stirring up hatred on religious grounds is an offence, but the threats or abuse ‘would have to be truly outrageous before the criminal law was interested’, according to legal expert Professor Adam Tomkins, a former Tory MSP.

Ridiculing or even insulting someone’s religion might be unwelcome – but it would not be criminal under the Hate Crime Act.

Does the law apply only in public?

No – it also applies to private homes, not just to comments or behaviour in public, raising the possibility that dinner party conversations could be criminalised.

Critics say this level of state intrusion is unjustifiable and Lord Bracadale, who carried out the review which led to the new law, was opposed to the move.

Professor Tomkins, a legal expert at Glasgow University, backed the broad principles of the Act – but ultimately voted against it while an MSP over the extension of its reach to people’s homes.

Will it undermine artistic freedom?

Police Scotland insists it will not ‘target’ actors and stand-up comedians who take part in productions or make jokes which could be considered to contravene the Act.

But it has said that all complaints about alleged hate crimes will be investigated – so if a spectator contacted police about a joke by Frankie Boyle, for example, it would be taken seriously.

The Scottish Police Federation (SPF), representing rank-and-file officers, has warned that the Fringe festival in Edinburgh could be ‘busier than normal’ this summer, as officers may have to question comedians who are the subject of hate crime complaints.

What have the police said about the Act?

The Association of Scottish Police Superintendents has warned that activists could seek to ‘weaponise’ the new legislation.

Officers could be swamped with vexatious complaints – at a time when Police Scotland has said it will no longer investigate minor crimes.

It also warns that public trust in the police could be damaged if the service is drawn into online spats – taking officers away from investigating more serious crime.

The SPF has said officers have not received adequate training – and believes that not all of them will have been trained in enforcement of the new legislation by today.

Will ‘misgendering’ be a criminal offence under the Act?

Women’s campaigners say no explicit safeguards have been written into the law to protect those who insist that (for example) people cannot change sex, or that only women can be lesbians.

First Minister Humza Yousaf claims that ‘if you were to say a trans man is not a real man or a trans woman is not a real woman, you would not be prosecuted’ – as long as you did not intend to stir up hatred.

JK Rowling has said she will not delete social media posts which could breach the ‘ludicrous’ law after she was embroiled in a misgendering row with transgender broadcaster India Willoughby.

What is a ‘hate incident’?

The recording of ‘non-crime hate incidents’ pre-dates the Hate Crime Act – but there could be more of them as a result of its implementation.

Officers can log an incident where no criminality has been proven to build up a picture of the prevalence of racial tension, for example, in the community, and reports can be made by third parties – such as someone who overhears a remark and believes it could be a hate crime.

Tory MSP Murdo Fraser revealed last week he was the subject of a non-crime hate incident after a trans activist reported him over a tweet critical of SNP Government non-binary policy.

Mr Fraser is threatening legal action against Police Scotland to have the policy scrapped.