Police Scotland’s position on recording “non-crime hate incidents” has been branded “farcical” with the force accused of “making things up as they go along.”

The criticism came after a senior officer told Holyrood’s Justice Committee that the service would not log all complaints of hate crimes, but rather take a “proportionate” approach.

That appeared to contradict the police’s own guidance, which states that its recording policy is based on the perception of the complainant.

READ MORE: Hate Crime: Tory MSP threatens Police Scotland with legal action

The row comes ahead of the Hate Crime and Public Order (Scotland) Act 2021 taking effect on April 1.

The 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.

It was thought that if the investigation did not result in charges being brought, the report would still result in a non-crime hate incident (NCHI) being recorded.

Earlier this month, Holyrood’s Criminal Justice Committee wrote to Jo Farrell, the Chief Constable sharing concerns raised by the Murray Blackburn Mackenzie (MBM) research group about the service's current guidance on NCHIs.

The national guidance reads: "For recording purposes, the perception of the victim or any other person is the defining factor in determining whether an incident is a hate incident or in recognising the malice element of a crime.

"The perception of the victim should always be explored, however they do not have to justify or provide evidence of their belief and police officers or staff members should not directly challenge this perception.

"Evidence of malice and ill-will is not required for a hate crime or hate incident to be recorded and thereafter investigated as a hate crime or hate incident by police."

Responding on behalf of the service, Alan Speirs, Deputy Chief Constable for Professionalism, Strategy and Engagement, confirmed that there were “certain circumstances where an incident that does not meet the criminal threshold provided for by statute, will be recorded by the police as a non-crime hate incident.”

However, he then went on to say that "such incidents will be recorded only where it is necessary and proportionate to do so, and where keeping a record of the circumstances of the incident meets a particular policing purpose.”

Conservative MSP Murdo Fraser, who earlier this week threatened Police Scotland with legal action after discovering that the force logged one of his tweets as a “hate incident” even though no law had been broken, said the “chopping and changing” of the policy was “piling confusion on top of uncertainty.”

Mr Fraser added: “Previously, they defended to the hilt their policy of recording them, but they now appear to be back-pedalling.

“I’d be intrigued to know whether they now consider it ‘necessary or appropriate’ to have recorded the complaint made against me.

“It appears that they are making things up as they go along, which is deeply concerning given that the new Hate Crime Act is coming into force on Monday.

“This sorry saga will inevitably leave the public with little to no confidence in police handling of complaints.”

Dr Kath Murray from MBM said: "The Police Scotland response to the Committee is farcical. It clearly misrepresents the position as set out in Police Scotland's policy, under which Murdo Fraser MSP had an NCHI logged against him."

A Police Scotland spokesperson said: "Recording is victim-focused and the process has been part of policing for many years.

“It helps us monitor tensions within communities enabling appropriate police responses and helps to build community confidence.

“These events can have a significant impact on people, particularly those who may already be vulnerable.”

READ MORE: FM confident Police can 'weed out vexatious hate crime complaints'

It was raised during Thursday’s First Minister’s Questions, with Humza Yousaf insisting that Police Scotland will be able to “weed out vexatious complaints” when the new hate crime law comes into effect on Monday.

He added: “They unfortunately have to deal with vexatious complaints across a whole range of legal matters and complaints that are made right across the legal landscape.

“I have absolute faith in the ability to address these issues in ways that are appropriate.”

Police Scotland said that nothing had changed and that the recording of non-crime hate incidents had been part of policing for many years.

A spokesperson said: "Recording is victim-focused and the process has been part of policing for many years. It helps us monitor tensions within communities enabling appropriate police responses and helps to build community confidence. These events can have a significant impact on people, particularly those who may already be vulnerable.”