New hate crime guidance puts police in “defiance of the law”

Fair Cop calls for College of Policing to be held accountable for leading police further away from the law

4 November 2020 –  New police hate crime guidance is in “defiance of the law” and strengthens the police’s ability to criminalise people for expressing an opinion, analysis by Fair Cop reveals.

Last year the College of Policing announced a consultation on its Hate Crime Operational Guidance (HCOG). The updated Guidance, published on 21st October, further expands the list of protected categories beyond what is recognised in existing legislation, and advises officers to make direct contact with the person reported – something that was explicitly criticised by a High Court judge in February’s judgement in Miller v Humberside and College of Policing

Fair Cop has highlighted the following issues as particularly concerning: 

  • Extension of monitored strands: By including asylum seekers and immigrants (race), sectarian groups (religion), cross dressers (Trans identity). None of these characteristics are recognised by the Equality Act 2010; meanwhile, the actually protected characteristic of Sex remains missing. 
  • Repeated reference to complainants as victims: In defiance of both Mr Justice Knowles and Mr Justice Henriques, the College of Policing continues to refer to complainants as victims. As Henriques points out, complainants are not victims until the point of conviction, an approach that “cannot be questioned” as “the use of ‘victim’ before conviction is simply inaccurate and should cease.” (Henriques Report 1.12)  
  • Retention of ‘victim’ perception: The Guidance states that the ‘victim’ does not have to justify or provide evidence of their belief for the purposes of reporting and that police officers or staff should not directly challenge this perception. Nevertheless, the guidance encourages police to determine the hate element even when the ‘victim’ doesn’t. 
  • Continuing to define ‘hate’ to include ‘dislike’, ‘resentment’ and ‘unfriendliness’, which threatens to criminalise a host of ordinary, everyday interactions between people.  
  • Recording of hate remains mandatory, with no option for the police to dismiss a claim. What is more, the recording of a non-crime ‘hate incident’ on a person’s enhanced DBS check is now explicitly written into the guidance, a move that potentially affects over 120,000 people who were recorded as having perpetrated a ‘hate incident’. 

“When we launched the Judicial Review in August last year we knew we’d spooked the College of Policing because they immediately announced a review of their Guidance,” said Harry Miller, co-founder and CEO of Fair Cop. “But although we’ve been tracking, reporting on, and challenging the police’s flouting of the law and their capture by special interest lobby groups like Stonewall, we never imagined that the updated Guidance would get the law so utterly wrong.

“Despite the High Court likening them to the Stasi, the Cheka and the Gestapo, the police have decided to further divorce themselves from the law of the land,” Miller continued. The latest College of Policing guidance instructs police forces to investigate so-called ‘non-crime hate incidents’ in precisely the way that the High Court warned them not to — including recommending workplace visits. The move to a police state beyond the control of the Courts should terrify everyone, not least the press who can be accused of hate by any group or grifter with a grievance.’

Sarah Phillimore, barrister and co-founder of Fair Cop, said, “The College’s new Guidance stands in defiance of Mr Justice Knowles repeated comments that ‘common sense’ should guide the police decision to record people as ‘hateful’. In their headlong pursuit of increasing the number of reported hate crimes (a goal they have proudly publicised) the police appear desperate to discover hate where none exists. The aims may be noble but the execution is woeful: the guidance continues to exert a chilling effect on public discourse, not least by claiming ‘unfriendliness’ as evidence of hatred. It’s time that the College of Policing, an unaccountable private company, was subjected to the same scrutiny as other bodies that shape our laws and our society.”