Police Scotland has been urged to review thousands of Non-Crime Hate Incidents (NCHI) recorded over the years, with politicians and academics warning that the force’s records could be unlawful.

Until May this year, NCHIs were recorded as a matter of course whenever a hate crime was reported, but where the alleged offence did not meet the threshold for criminality.

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Police Scotland’s guidance - first published in April 20021 - stated that “the perception of the victim or any other person" was the "defining factor in determining whether an incident is a hate incident."

It went on to say officers and staff “must ensure a hate concern is raised in relation to every hate crime or hate incident reported to police.”

Details of the allegation and the person accused were seemingly kept on file and could even be released to potential employers under enhanced disclosure procedures.

This remained in place despite a court case triggering a change to guidance on logging hate crime incidents south of the border later that year.

The ruling meant forces in England and Wales did not record anything "trivial, malicious or irrational" as it would interfere with the right to freedom of expression under Article 10 of the European Convention on Human Rights.

However, it was only in May, a month after the controversial Hate Crime and Public Order (Scotland) Act took effect, that Police Scotland changed its policy on how their officers should record reports of hate crimes.

The new guidance calls for all responses to be “proportionate.”

It goes on to say: “Not all incidents perceived by the reporter as being motivated by hostility or prejudice will meet the threshold for recording a Non-Crime Hate Incident.”

For an incident to be recorded as an NCHI, a “reasonable person” would have to consider the report as being “motivated by hostility or prejudice towards one or more characteristics protected within the legislation.”

Crucially, it would also have to serve a “policing purpose.”

Officers were also told only to record the name of someone accused of a hate crime in “exceptional circumstances where there is a real risk of significant harm to individuals or groups who are protected by the legislation and/or a real risk that a future criminal offence may be committed against those individuals or groups.”

Instead, the force would use the terms ‘reporter’ and ‘other party.'

The previous policy referred to ‘victims’, ‘suspects’ and ‘offenders’ based on the complainant’s report.

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The research group, Murray Blackburn Mackenzie, said it was not clear how many NHCIs recorded prior to May 2024 contained details of "other parties."

They warned it could range from very few to thousands.

They said the interim policy can be read as a “tacit acknowledgement that its 2021 policy was not proportionate, nor likely to be found lawful, and made Police Scotland vulnerable to legal challenge.”

They have called on the Scottish Police Authority to “assert itself more robustly” and require that Police Scotland undertake a review of all NCHIs recorded prior to May 2021 and “weed out all records that do not meet the criterion in the 2024 interim policy.”

Tory MSP Murdo Fraser echoed that call.

Earlier this year, he threatened Police Scotland with legal action after the force logged one of his tweets as an NCHI even though no law had been broken. The service later said his personal details were not recorded in relation to the hate incident in question.

Mr Fraser told The Herald: “This change in policy confirms what we have been saying, that the Police Scotland policy on recording NCHI was unlawful and a breach of human rights, as well as being confusing and entirely unworkable.

“Whilst the change is welcome, the question is now what will happen to the thousands of NCHIs recorded under the old, unlawful policy? Will they be extinguished?

“All this increases the confusion around hate crime law, and will only add to the mountainous workload already facing Police Scotland who need to wade through thousands of complaints following the enactment of the Hate Crime Act.

“The Scottish Conservatives were the only major political party to oppose this Act – John Swinney should finally admit that this legislation has been disastrous and do everyone a favour by repealing this ridiculous law which threatens free speech.”

READ MORE: Hate crime law could 'damage confidence in police'

A Police Scotland spokesperson said: “Police Scotland is a rights-based organisation, and officers balance the protections people have under human rights legislation against other laws every day, using their discretion and good sense.

“We are developing a policy and standard operating procedure around our response to reports of hate, including hate crime and non-crime hate incidents.

Dr Kath Murray from MBM said the service's response was disappointing.

"The interim NHCI policy significantly raised the recording threshold for alleged 'hate incidents'," she said.

"It is disappointing that the Police Scotland response does not engage with the implications of this change for the proportionality of records made under its previous policy.

"We think the Scottish Police Authority needs to take a strong steer on this issue and require that Police Scotland review those records."