Police Scotland’s officers will investigate actors and comedians if a complaint is made under new hate crime laws.

Training, obtained by The Herald, states that material regarded as “threatening and abusive” under the Hate Crime and Public Order (Scotland) can be communicated “through public performance of a play.”

The Scottish Tories said this appeared to be at odds with the legislation and called for the force to explain.

READ MORE: Calls for Scottish Government to delay hate crime law

Meanwhile, The Herald also understands that the Assistant Chief Constable responsible for overseeing the implementation of the controversial legislation has retired after just a year in the post.

David Duncan was made ACC and put in charge of Policing Together, Police Scotland’s equality, diversity and inclusion strategy, in January last year.

The force said a recruitment process for a replacement would start this month, with the Policing Together portfolio “being looked after by another chief officer in the interim.”

The new hate crime legislation consolidates some existing laws and creates a new offence of stirring up hatred against protected characteristics, including age, disability, religion, sexual orientation, and transgender identity.

Police Scotland has promised that it will investigate every hate crime complaint reported, despite the force adopting a “proportionate response” approach to other crimes.

The slide from the training module deals with “how might threatening and or abusive material be communicated.”

It reads: “The different ways in which a person may communicate material to another person are by: displaying, publishing or distributing the material, for example on a sign, on the internet through websites, blogs, podcasts, social media etc, either directly, or by forwarding or repeating material that originates from a third party, through printed media such as magazine publications or leaflets.”

It then goes on to say “giving, sending, showing or playing the material to another person” listing examples of “through online streaming, by email, playing a video, through public performance of a play.”

The Herald:

How the legislation interacts with the performing arts has long been controversial. 

When the bill was first drafted there was an outcry from artists. More than 20, including Rowan Atkinson and Val McDermid, signed an open letter calling on ministers to think again.

READ MORE: Coalition of 20 warns Scotland's hate crime bill threatens free speech

David Greig, the artistic director of the Royal Lyceum in Edinburgh, told the Justice Committee at the time that the clause concerning theatre was potentially problematic.

He said that in the past shows had been picketed by organisations trying to get them shut down and warned that "putting theatre in its own category makes it a target.”

In response to those protests, Humza Yousaf, who was justice secretary at the time, then amended the draft legislation.

His changes removed the risk that directors or promoters of performances would be guilty of an offence.

But, despite what some MSPs and groups at the time claimed, it did not give performers complete freedom.

They could still be charged if the words they used were such that a reasonable person would consider them threatening or abusive or intended to stir up hatred.

There was, however, a freedom of expression provision added to the legislation which said that behaviour or material was “not to be taken to be threatening or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to age, disability, sexual orientation, transgender identity, variations in sex characteristics.”

However, the next clause says this would also apply to “discussion or criticism relating to, or expressions of antipathy, dislike, ridicule or insult towards” religion, religious beliefs and religious practices. “

Because that second clause spells out expressions of antipathy, dislike, ridicule or insult, but the first does not, some lawyers suggest this means expressions of antipathy, dislike, ridicule, or insult in relation to age, disability, sexual orientation, race, transgender identity or variations in sex characteristics would never amount to a defence under the section of the Act on freedom of expression.

In a 2021 blog, legal academic, Scott Wortley wrote that the consequences would be that the freedom of expression exclusion would not give a defence directly under the Act to stand-up comedians performing routines in relation to any protected characteristic apart from religion.

The Edinburgh University lecturer continued: “This may be the desired outcome for MSPs in relation to these offences. But doing so should be something addressed overtly and explicitly in debate rather than as a consequence of the application of a principle of legislative interpretation based on a rule of language".

While a freedom of expression defence would apply generally because of the European Convention on Human Rights, it is not on the face of the Act, which could impact how it is then policed. 

Responding to the training, Scottish Conservative shadow justice secretary Russell Findlay said he had concerns. He said: “If this is genuine Police Scotland training material, it appears to be at odds with the legislation which excludes plays from its scope.

“This revelation adds to widespread concerns about Humza Yousaf’s hate crime law and needs to be explained.

"The Scottish Conservatives remain committed to binning this dangerous law which threatens free speech and risks causing chaos for hard-working police officers."

A spokesman for Police Scotland said: "Our training package has been developed in close consultation with stakeholders to ensure all characteristics protected by legislation under the new Act are clearly represented and articulated, and that officers are best prepared when they respond to hate crimes and incidents.

"The training material was based on the Scottish Government's explanatory notes which accompany the legislation. This included examples of a range of scenarios where offences might take place, but this does not mean officers have been told to target these situations or locations".

"Police Scotland is a rights-based organisation and officers balance the protections people have under human rights legislation against other laws every day."

"Our training for the new Act therefore reminds officers of their human rights obligations and it reflects all aspects of the new legislation, including the protection it includes around freedom of expression".