May 20th is the birthday of John Stuart Mill, English philosopher and author of On Liberty, which was published in 1859 and has remained in print ever since.
Mill was concerned about ‘the tyranny of the majority’ and identified the three fundamental liberties:
Knowles J quoted John Stuart Mill in the concluding paragraphs of his judgment in Miller v College of Policing [2020] where he found that Humberside Police had breached Harry Miller’s right to free expression which is protected by article 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHR):
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.
Harry had to wait until December 2021 for the Court of Appeal to confirm that the guidance on recording NCHI written by the College of Policing was unlawful. It relied entirely on the subjective perception of ‘hate’ by the person reporting and was clearly open to abuse.
The draft Parliamentary Code of Practice was then published in March 2023.
The College of Policing has issued a consultation about how to revise its guidance in light of the Court of Appeal judgment and the Code of Practice. We think the Code of Practice is excellent and the College of Policing should simply adopt it – it re-affirms the importance of Article 10 ECHR and warns against the risk of malicious or irrational complaints or recording personal data where it is not necessary.
However, the Code of Practice is silent as to what should happen to the hundreds of thousands of NCHIs already recorded under the previous unlawful guidance.
The barrister for the College of Policing confirmed to the Court of Appeal that there were simply too many of these recordings to allow any force to properly analyse them. Knowing what was recorded against Harry Miller and Sarah Phillimore’s name (‘Huh?’ ‘my dog would call me a Nazi for cheese’) we think it inevitable that many recorded NCHIs will be similarly ridiculous, useless and clearly unlawful. They must be deleted.
We therefore propose a NCHI Day of Action. On May 20th 2023, please contact your local force to make a Data Subject Access Request to find out if there are any NCHIs recorded against your name. If you do find a recording, you can ask the police to delete it.
Please tell us if the police refuse to let you know if they have recorded an NCHI OR if they refuse to delete it.
Making a Data Subject Access Request (DSAR) of the police.
The Data Protection Act 2018 gives you the right to ask the police for a copy of any personal data they hold about you. This is called a Subject Access Request or a Data Subject Access Request. They have to reply within 30 days of receiving your request. You do not have to explain why you want the information. They can refuse if it would cost too much to find the information or they think your request is vexatious.
A Non Crime Hate Incident is not recorded as a crime so you are not asking for a copy of your criminal record or information that is on the Police National Computer.
You can make your request verbally, in writing or electronically via a form on the police website. It’s best to make your request in writing so there is a record.
Here is an example of the form used by the Metropolitan Police – each force will have its own form.
The police are likely to want proof of your identity before releasing information to you, for example, a picture of your passport or driving licence.
Here is a list of all police forces including a link to their website.
The Information Commissioner’s Office has advice here.
Suggested letter
Give your address and phone number.
Date the letter.
To whom it may concern. Please supply the data about me that I am entitled to have under data protection law. I would like to see copies of all Non Crime Hate Incidents recorded against my name (give your full name).
Please reply within 30 days.
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