Scotland’s Hate Speech Act and Abuse of Process

Former Ambassador, Human Rights Activist

On 1 April Scotland’s notorious Hate Crime Act comes into force. I have explained before why it is so noxious. It has been condemned by every civil liberties body you can think of. Police Scotland have made matters still worse by telling their officers that the measure of whether a Hate Crime has been committed should be whether the person reporting it feels offended or threatened, and that the officer should make no objective judgment as to whether that is reasonable from the facts of the case.

But I want to concentrate on one very specific aspect of this legislation. It will apply to social media, and indeed it is highly probable that a very significant proportion of the “Hate Speech” will be found on social media.

It is a well establsihed principle in Scots law that anything published on the internet, which can be read in Scotland, is deemed to be published in Scotland. The act of publication is not deemed to be the person actually publishing the item, let us say in Tahiti. The act of publication is deemed to be the reader opening the item on their device in Scotland.

(To emphasise the total illogic of this approach, while it is the person opening it which constitutes the act of publication, it is not the person who opened it who is deemed to have published it but the original creator/publisher. To emphasise the state’s dishonest thinking still more, if however what is being opened is not, say, libel or hate speech but rather illegal pornography, then it is in that case the person who opened it who is deemed to have published it).

So a person in Tahiti who publishes a tweet which is opened by and offends somebody in Scotland because it offends a protected characteristic, had committed a crime in Scotland, even though they never left their home in Tahiti and may never have been anywhere near Tahiti.

I know this sounds completely crazy, but I do assure you it is absolutely true. As kindly confirmed here by the Dean of Faculty.

Craig is absolutely correct here. If it’s published online and read in Scotland then – in law – it is published in Scotland.

— Roddy Dunlop KC (@RoddyQC) March 15, 2024

This means, beyond a doubt, that hundreds of thousands, and possibly millions, of new crimes will be committed in Scotland every year from 1 April. Committed in Scotland by people who were, at the time, all over the world.

If you think that is bad, let me tell you it gets infinitely worse. In addition to holding that Scots courts have jurisdiction over anything published on the internet anywhere in the world, because if it can be read here it is published in Scotland, Scottish judges have also invented the doctrine of “continuing publication”.

As it is the act by the reader of opening the matter online which constitutes publication, every time it is opened by someone in Scotland from the internet that constitutes a new publication. So any “hate speech” that has been online for ten years constitutes a new offence if you read it in Scotland now. “Hate speech” as defined in the Act, anywhere on the Internet, no wonder when or where it was published, is going to be a new crime in Scotland if someone opens it or reads it after 1 April.

What I have said is simply true. It is irrefutable. There may sometimes be argument over who committed the crime – for example, it may sometimes be the author or sometimes the publisher who is guilty, (though on social media they are in most instances deemed the same person). But that a crime has been committed in Scotland is not in doubt.

So how will Police Scotland and the Crown Office cope?

Through selective prosecution. With literally millions of available criminal offences being committed annually, the authorities have fantastic latitude to choose who and who not to pursue.

In theory of course all crime should be pursued equally. In practice that will be impossible. Scotland will have put itself into this impossible situation by the combination of two terrible bits of law. Scotland’s legal doctrine on internet publication is appalling and Scotland’s new Hate Crime and Public Order Act is appalling. The combination of the two is almost indescribably bad.

Scotland’s internet doctrine that the entire internet is published in Scotland if you read it here, is a claim of universal jurisdiction over the internet. It should be derided into vanishing.

But the internet posed a dilemma for the courts. EIther they had to accept a massive increase in freedom of speech, or claim jurisdiction over the entire internet. How do you enforce an injunction if somebody can simply publish the information from their home in Tahiti and you cannot touch them? Needless to say, the stupid and arrogant judges of Scotland went for the universal jurisdiction path and not the freedom path (to be plain, so have the courts in England and Wales).

There is however a real problem here. Outside the UK, Scottish judges can only get their hands on our “criminal” from Tahiti if they happen to come here, or by extradition. But extradition depends on the principle of dual criminality – the act has to be a criminal offence in the country being extradited both to and from. As there are few countries in the world willing to jail you for telling a story that starts “An Englishman, Scotsman and Irishman went into a pub”, extradition will be difficult in most cases.

It will, incidentally, certainly be an imprisonable offence in Scotland from 1 April to tell a joke beginning “An Englishman, a Scotsman and an Irishman went into a pub”. The police just need someone to complain.

But this opens a very interesting question with England and Wales. Plainly there is an enormous amount of online social interaction between Scots and people in England and Wales. The Scottish courts do not need to extradite people from England and Wales, the police just truss them up and deliver them. But is England really going to accept that a woman sitting at home in Leicester, who made a bad taste joke online whilst in Leicester that is perfectly legal in England, can be sent to Scotland and imprisoned?

Did anybody actually think that through in passing this Act through the Scottish Parliament?

The Hate Crime Act makes it a criminal offence to insult somebody. You can go to jail for seven years for insulting somebody. That does not have to be your own insult. It includes by “displaying, publishing, distributing” “giving, sending, showing, playing” or “making the material available”. It includes giving someone an album that contains offensive lyrics, or acting in a performance that contains offensive lines. It really does.

The most basic notion of liberty has been discarded.

To make plain the culture wars motivation, three of the six protected characteristics are sexual orientation, transgender identity and variations in sex characteristics. I genuinely do not know what the last one means. It does not mean being male or female. Strangely enough it will still be perfectly legal to insult women or men.

Rather worryingly, much of the opposition to the bill comes from people who want to make more things illegal, rather than give the state less arbitrary power to bang up huge numbers of people.

The truth is that this appalling legislation was always a part of Nicola Sturgeon’s grand scheme to destroy the Scottish Independence movement from within through culture wars. Everybody sentient in Scotland knows that the entire intention is a massive abuse of process. Of the millions of people who could be prosecuted for online content read in Scotland, the intention is selectively to attack those who are gender critical.

Now I am in fact not gender critical myself. I still find the intolerance puzzling. But I absolutely defend the right of those who are convinced that trans people are a threat to womens’ rights to state their position, free from the legal harrassment that is about to be unleashed upon them.

What we are seeing is terrible repressive legislation, amplified by a terrible legal doctrine, leading to massive power by the state over individuals. We are going to see monumental abuse of process. The state will take completely arbitrary decisions on selective prosecution according to a state political agenda, and will refuse to prosecute millions of other “crimes” under the same Act. This is fascism.

The situation contradicts, at the very least, article 1, 5, 6, 7, 9, 10 and 17 of the European Convention on Human Rights. A nightmare is coming.

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