27 April 2021

The end of ‘non-crime hate incidents’ would be a triumph for free speech

By Emma Webb

News that Home Secretary Priti Patel has asked the College of Policing to review the reporting of ‘non-crime hate incidents’ (NCHIs) is hugely welcome for anyone who values free speech.

Earlier this year my own organisation, the Free Speech Union, published a paper entitled ‘An Orwellian Society‘, setting out just why NHCIs are such a threat to freedom of speech.

So what exactly is a ‘non-crime hate incident?

NCHIs are defined as “any non-crime incident which is perceived by the victim or any other person to be motivated by hostility or prejudice” towards a person with certain protected characteristics, such as race, religion, sexual orientation, disability or transgender identity. “Hostility” is defined by hazy, unprovable and subjective notions of “ill-will”, “ill-feeling” or “dislike”.

As the author of our paper, Radomir Tylecote, points out, “this suggests that certain thoughts, when they are accompanied by particular behaviours, are a subject of police scrutiny”. To make matters worse, NCHIs can be recorded against your name even without you knowing it; indeed, they are recorded specifically when an investigation has determined no crime has been committed at all. 

The amount of police time taken up documenting these incidents is astonishing.  Between 2014 and 2019 120,000 NCHIs were investigated and recorded in England and Wales – that comes to about 66 per day.

Last year, for instance, remarks made by historian David Starkey in an interview with conservative broadcaster Darren Grimes resulted in an NCHI. Having investigated the ‘incident’, police determined that no further action would be taken: nonetheless an NCHI remains recorded against Grimes’s name simply for being the interviewer. 

Though these non-offending offenders are told “no further action” will be taken, the non-crimes against their name will show up in advanced DBS checks, affecting their prospects and effectively punishing them for their non-crime. Worse still, this new category was not even created by Parliament or with any democratic mandate, but by an unaccountable quango called the College of Policing, and is codified in a non-legislative document called the Hate Crime Operational Guidance (HCOG).

The vagueness of its definition provides enormous potential for vexatious complaints, for the reporting of unorthodox or dissenting views, of speech an anonymous individual finds offensive, or of speech they simply disagree with. Simply knowing this could happen to you is enough to chill free speech and create a climate of self-censorship.

Thank goodness for brave individuals like Harry Miller, who have taken a stand against this assault on our freedoms.

In 2019, Humberside Police received an anonymous complaint about allegedly ‘transphobic’ tweets written by the former police officer. Alongside gender-critical views, one of Miller’s tweets joked about being “mis-specied” – or having been “assigned mammal at birth” despite really being a “fish”. Police turned up at his work and, despite telling him that he had not committed a crime, they recorded the incident as an NCHI.

Miller did not take this lying down, and brought a case to the High Court. In February, Justice Julian Knowles recognised the severity of what had occurred, stating that the impact of the police turning up at Miller’s workplace because of his political opinions “must not be underestimated”, adding that in the Britain we have never had the “Gestapo or the Stasi”. Even so, Miller has had to take his fight all the way to the Court of Appeal, seeking to stop the recording of NCHIs so that others won’t suffer the same treatment.

The College of Policing justify recording NCHIs by claiming that they can be “precursors to subsequent violent crime”. But police were free to record intelligence on likely violent crime before the NCHI regime, which appears more geared towards investigating potentially offensive opinions than anything the public would consider remotely dangerous. As Harry Miller himself observes: “The police cannot point to a single instance where this practice has led to preventing crime.”

The legal basis for NCHI recording is also decidedly shaky. Barrister Sarah Phillimore – who had an NCHI recorded against her because of comments made on social media that male offenders, identifying as women and housed in women’s prisons, were men – has pointed out that, as a private company, the College of Policing’s guidance has no statutory foundation. As she says, “it cannot be right that [its guidance] can be implemented and amended without official oversight, when this affects every citizen”. Like Miller, Phillimore is taking the fight to the courts, arguing that recording an NCHI against her name contravenes data protection law, is inaccurate, and is motivated by malice.

The strange status of NCHIs throws up other issues too. As law professor Andrew Tettenborn – a member of the FSU’s Legal Advisory Council – has noted, the Home Secretary cannot simply tell the Royal College of Policing to stop recording NCHIs, she can only ask. If they refuse, it will require legislation.  As Radomir Tylecote explained in his FSU paper, we then need to return to the “traditional” common law (and common-sense) position, where officers can “decide whether a reported activity constitutes a crime and not record it if it does not”.

In short, police should get back to what they did before NCHIs came along – only noting non-crime cases where there is an imminent risk of violent or other genuine crime. They should not be drafted into a regime of thought-surveillance, and the era of the Non-Crime Hate Incident should be emphatically brought to an end

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Emma Webb is Deputy Research Director at the Free Speech Union.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.