Something is wrong with the police. That’s according to Hampshire Constabulary’s crime commissioner Donna Jones, who criticised her own force for arresting a decorated ex-soldier and free speech campaigner Harry Miller.
Following uproar over the arrests, Jones has scrapped a two-hour ‘hate crime awareness course’ for people accused of racism, sexism, misogyny or transphobia. That’s certainly a step forward, but the rise of the ‘non-crime hate incident’ (NCHI) remains a cause for concern.
The ex-soldier was arrested after sharing a social media image, first published by actor-turned-activist Laurence Fox, of rainbow pride flags rearranged into a swastika. In a video of the arrest, an officer is heard saying, ‘someone has been caused anxiety based on your social media post, that’s why you’ve been arrested’.
Fortunately, the Police will be taking no further action against the ex-soldier, but Miller remains under investigation on suspicion of, ‘obstructing a constable in execution of duty’. This incident is just one example of how the pernicious rise of NCHIs is threatening free expression.
It was in response to that extraordinary footage that PCC Jones issued a statement saying:
‘I am concerned about both the proportionality and necessity of the police’s response to this incident. When incidents on social media receive not one but two visits from police officers, but burglaries and non-domestic break-ins don’t always get a police response, something is wrong.’
Jones is right. Police time should be spent solving real crimes like burglaries or GBH – not ‘anxiety’-inducing Facebook posts. According to the College of Policing, an NCHI is, ‘any incident where a crime has not been committed, but where it is perceived by the reporting person or any other person that the incident was motivated by hostility or prejudice,’ with reference to a number of protected characteristics, including transgender identity. As a result, the police (who are supposed to be impartial, according to their own Code of Ethics) end up becoming involved in political debates – especially ideologically motivated online disagreements. The threshold for ‘hostility’ in the CPS’s definition of hate is worryingly low – and can include ‘ill-will’, ‘dislike’, ‘ill-feeling’ or ‘unfriendliness’.
The number of NCHIs recorded are by no means trivial either. According to a 2021 report by the Free Speech Union – 34 police forces in England and Wales recorded almost 120,000 NCHIs from 2014 to 2019. They can appear on advanced DBS checks too – so this can potentially have implications for a person’s livelihood.
There have been some egregious NCHI cases, like that of electrician Kevin Mills, who merely said to an awkward client, ‘I’m not working for someone like you’. He then had a hot cup of tea allegedly thrown at him, reporting it as an assault, for which no further action was taken – only to later discover a NCHI had been recorded under his name. In January this year, a Surrey parish councillor published an image on Facebook which included the words, ‘Trans rights are boring’, leading to a threat of arrest.
Donna Jones’ intervention is therefore both timely and important. She will be writing to the College of Policing to ask for ‘greater clarification’ on guidance, which was updated last month to reflect the decision in Miller vs College of Policing. Yes that’s the same Harry Miller, who previously won a landmark legal battle following a complaint about a ‘transphobic’ retweet and the recording of a NCHI against his name. The officer bothering Miller is reported to have said, ‘I need to check your thinking’. In 2020, the High Court ruled the police’s response to Miller’s alleged ‘transphobic’ tweets was unlawful, and the actions taken were a ‘disproportionate interference’ with his right to freedom of expression.
Having met Miller a few times, I can say he’s down to earth and friendly – but someone who simply won’t back down. And true to form, he didn’t stop there. He subsequently took the College of Policing to the Court of Appeal over the lawfulness of their hate crime operational guidance (HCOG). In December 2021 the court ruled the HCOG was wrongly used, and had a ‘chilling effect’ on Miller’s freedom of speech, which is protected under Article 10 of the European Convention on Human Rights. But despite Miller’s decisive victory – the status quo doesn’t appear to have changed.
The College of Policing’s revised hate crime guidance attempts to address issues raised in Miller. There are some positive additions, like non-crime incidents should be dealt with by the ‘least intrusive’ method, (so that should mean officers not turning up at your home or workplace), and officers must apply, ‘proportionality, common sense and discretion’, as to whether or not an NCHI should be recorded in the first instance. The guidance says ‘not all incidents need to be recorded’ – setting out a ‘national standard for incident recording’ threshold which is unhelpfully subjective. But despite this, and the explicit recognition of Article 10 rights, the revised guidance is at best confusing, and difficult to digest for the ordinary reader. I do hope jobbing officers are better at deciphering its meaning.
But will any of these changes make an iota of difference? Miller doesn’t think so. He told me:
‘The guidance is likely to change nothing. I heard from an officer this morning confirming that the police have conducted no training whatsoever since the court rulings in 2020 and 2021. The police are so convinced that they are on the right side of history that they don’t care that they are on the wrong side of the law’.
Dr Richard Norrie and I have written a report titled, ‘We Need to Check Your Thinking!’ which will be published soon. We examine how identity politics is warping police priorities from within, delving not only into the Orwellian world of NCHIs, but also the influence on policy of activist groups, and so-called Independent Advisory Groups. When you consider reports that police forces have failed to solve a single burglary in nearly half the country over the last three years, it becomes plainly obvious valuable police time should not be wasted investigating ‘anxiety’-inducing Facebook posts.
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