Non Crime Hate Incidents – Updated Guidance

Republished with permission from Non Crime Hate Incidents – Updated Guidance. by Sarah Phillimore

After the Court of Appeal ruled the existing guidance unlawful, the College of Policing promised to revise it. That revision was published today. Will it be enough to avoid my challenge via JR?

On July 21st the College of Policing issued the revised ‘Hate Crimes’ Guidance or ‘Hate crime authorised professional practice’ (APP) which was made necessary by the decision of the Court of Appeal in December 2021 in Miller v College of Policing. The court determined that the previous guidance was unlawful as it promoted breach of Article 10 ECHR – the right to free expression, a fundamental human right. If you are unfamiliar with Miller’s case, here is a brief overview of the decision and its significance.

What’s good? What’s bad?

TL:DR – it’s a hot mess. The first guidance stops abruptly with a link to a second piece of guidance, which repeats much of the first guidance but expands on certain points or makes new ones. I don’t understand why we cannot have simply one document setting out all the relevant points. I found myself becoming confused at various points; I don’t know how police officers on the street are expected to deal with this. The two guidances read as if the author knows full well that perception based recordings of ‘hate’ are dead in the water but cannot bring him or herself to fully embrace this, leaving us in the odd situation where the police are advised simultaneously to NOT challenge a complainant but also to investigate their rationality.

I make further more detailed criticisms below.

Despite recognising the language of ‘perpetrator’ and ‘victim’ was entirely inappropriate for a perception based report of a crime, we see it in the first few paragraphs

In all cases of hate or hostility, victims should be treated sensitively in a way that is appropriate to their needs, recognising the greater impact that hate crimes and incidents may have on victims.

This is then contradicted by a second piece of guidance that urges ‘call takers’ to always use ‘non-crime terminology for the parties involved, such as complainant, reporting person, involved person (do not use victim, witness, or suspect).”

The APP is now clear that not all reported incidents should be recorded – a record should only be made when it meets the threshold set out in the national standard for incident recording (NSIR). But what is that standard?

A single distinct event or occurrence which disturbs an individual, group or community’s quality of life or causes them concern.

What does this even mean? If ‘hate’ was a nebulous enough quality the ‘disturbance’ is even worse. How is it defined? How is it evidenced? Does it go beyond the definition of ‘hate’ offered by the CPS?

In the absence of a precise legal definition of hostility, consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike.

However, the next part is helpful. There is now explicit recognition that

1. Non crime incidents must be dealt with by the least intrusive method and for a legitimate policing purpose. So it may not be necessary to record anyone’s personal data – location data and overview of circumstances may meet intelligence needs
2. Officers and staff must apply ‘proportionality, common sense and discretion’ whether a report should be recorded as a non crime hate incident (NCHI)
3. A NCHI must NOT be recorded where it is trivial, the hostility qualifier should not be added where it is irrational and/or there is no evidence to support the complainant that the incident ‘is motivated by hostility against a monitored strand or protected characteristic’.

Well that sounds great! It deals with exactly the evil that Miller complained about – that irrational complaints were being recorded against named individuals which may be disclosed on an enhanced DBS check. But where is the guidance for police on how they determine what is a rational or irrational ‘disturbance’ felt by a complainant? Given that the police have been encouraged for at least 7 years now to record utterly insane complaints as ‘hate’ – see the picture at the top of this post regarding what Wiltshire saw fit to record against my name as a ‘barrister posting hate’ – one might expect some very clear guidance as to how they now turn this ship around.

There is nothing in the first guidance which stops abruptly, but refers to another piece of guidance Recording non-crime incidents perceived by the reporting person to be motivated by hostility. So let’s see if that offers any help.

It doesn’t start well. Despite references to proportionality and common sense in the first guidance, this second tranche begins by urging “Police officers and staff should respond positively to allegations, signs and perceptions of hostility and hate.”

Explanations as to who might be in the various monitored strands are bizarre. For transgender individuals for eg. the guidance says, without any definitions

including people who are transsexual, transgender, cross dressers and those who hold a Gender Recognition Certificate under the Gender Recognition Act 2004

Consideration is given to what is meant by ‘hate’

The term ‘hate’ implies a high degree of animosity. The term ‘hate crime’ is a globally and historically recognised term which is widely used. Our definition, however, and the legislation it reflects, requires that the crime or incident involves demonstration of or is motivated (wholly or partially) by hostility or prejudice which may set a lower threshold than the term ‘hate’ may suggest.

There is no guidance given or consideration of what to do if, for example, a woman expressing legitimate political speech about the need for female only spaces, is reported for NCHI on the subjective perception of the ‘victim’ that she is ‘motivated’ by hostility. One only has to consider any tiny fraction of the abuse heaped on women like JK Rowling, for expressing unexceptional views, to see how the police may need some help here.

There does seem to be a distinction opening up between hate crime and NCHI, but it isn’t explicitly set out as such in the guidance, which says

At the time of reporting, the victim or person reporting does not have to justify or provide evidence of their perception that the crime was motivated by hostility. Officers and staff should not challenge this initial perception.

Or at least I assume there is a distinction, because otherwise, this guidance appears to contradict the earlier guidance that irrational and unevidenced reports should not be recorded. So it’s ok to be irrational or unevidenced if you are reporting a crime and not merely an incident? This appears to be confused and confusing and makes me worried about how the officer on the street is supposed to make sense of all this.

BUT the guidance then goes on to say

To support a prosecution for a hate crime, investigators must provide material that demonstrates the hostility element of the crime. Where supporting material is not found, the crime will not be charged or prosecuted as a hate crime.

So the ‘hate element’ does have to be objectively proved once it goes to court, just not at its initial inception. But to be recorded as a NCHI it can’t be irrational or unevidenced. So every crime and every report must be properly investigated? If that’s the correct interpretation of the guidance, then I support it. But we still have this woolly overlay of initial perception that may not be challenged. When is the complainant told it will be challenged? Isn’t it going to be a bit of a shock to someone who is told initially that of course their complaint is heard and recorded (even believed?) – but later on it will be investigated? Wouldn’t it be far simpler and much fairer to complainants to make it clear that everything requires investigation?

I think it’s fair to say that the guidance is internally incoherent. I note ‘advice to call takers’ who should ‘gather as much information as possible about the incident and in particular investigate and record any basis for the complainant’s perception that the incident is motivated by hostility BUT at the same time never ‘directly challenge the complainant’s perception’ as this may undermine ‘victim focus and belief’.

It’s by now clear that this second piece of guidance provides considerable overlap with the first, many parts are simply cut and pasted but others are new. I can see no reason whatsoever for producing two guidance notes about the same thing, which are broadly similar but contain some different points. One comprehensive document would have been much more useful.

The second guidance sets out what we should have seen in the first. Some actual consideration of when NCHI should be recorded, to assist the officer in using his or her common sense and discretion.

• If an incident is initially reported as a crime but it’s not clear, making a recording will support investigation. Where it becomes clear there is no crime, a crime report should be cancelled and is treated as a non crime.
• Where the nature of the incident means it is necessary to record the information for intelligence purposes. This may be because it contributes to or involves people, objects, locations or events (POLE) relevant to a developing intelligence picture. It may help identify patterns of behaviour and/or incident hot spots associated with a specific location, group or person and may provide evidence of repeat targeting, such as antisocial behaviour directed towards the same complainant.
• When the alleged behaviour falls short of criminal activity, but the surrounding circumstances suggest that the behaviour may contribute to or become evidence of a course of criminal conduct – for example, harassment.
• For statistical analysis of non-crime hate incidents, to help improve understanding of the type and nature of hostility in a locality. Once sanitised and all personal information is removed, this information can, where appropriate, be shared with partners to support the development of local prevention and intervention initiatives.

There is a useful paragraph which considers the difference between ‘hostility and disagreement’.

Disagreement and debate do not mean that hostility is present. A cautious approach should be taken when considering whether such speech should be recorded as a non-crime hate incident. An incident should only be recorded where there is a firm basis for the perception that the speech demonstrates hostility against a monitored strand or protected characteristic.

There is some useful discussion about Article 10 and the ‘chilling effect’ of the action taken against Harry Miller and what ‘proportionality looks like’.

But then I come to the example of something that would not be recorded as a NCHI as it is ‘trivial’ or irrational.

A person sees an online report that authorities have responded to community concerns about anti-transgender posters that were posted at the scene of an LGBT+ Pride event.

Local authorities removed the posters and the police initially recorded the complaint as a non-crime incident, adding a hostility qualifier on the grounds of hostility to transgender identity. This was because the posters were assessed as containing threatening material.

The person who saw the online report, reports a hate crime/incident on the grounds of religious hostility, saying the local authorities have offended their philosophical faith around biological gender by removing the posters.

The police review the record and decide it does not amount to a crime and that it is not a hate incident because the complainant is asking the police to record legal activity by the local authority as a crime or incident and this would not be rational. The police notify the complainant about their decision to record an incident.

There is much to unpick here. This example appears to assume that it will be sufficient for material to be considered ‘hateful’ and ‘threatening’ if it hostile to ‘transgender identity’ whereas the complainant is referring to the harm done to their protected belief in sex as an immutable reality. This short example is confusing but clear enough in its contempt for those who express that belief and entirely unclear as to exactly what comprises ‘hostility’ to transgender individuals.

So what now? What about my JR?

My action, unlike Harry Miller’s, relies on not merely Article 10 ECHR but also Article 8 – the right to a private life – and breach of data protection principles. The revised guidance does provide for recording of complaints without the personal data of the person complained about, so that might be sufficient to answer my Article 8/data protection point. I will need advice from my barristers about this. The guidance is fairly light on indicators as to when personal data need not be recorded.

However, the revised guidance is not the end of this story. The Police, Crime, Sentencing and Courts Act 2022 which received Royal Assent in April 2022, included provisions to allow the Home Secretary to issue a statutory code of practice about the recording and retention of personal data relating to non-crime hate incidents. The College of Policing is currently engaged in developing this code to ensure it and the updated APP ‘fully align’. We may see the code in late 2022 or early 2023.

It may therefore be sensible to wait for this code and any further revisions of the APP which it requires and decide then if an action in judicial review is justified.

One thing however that the guidance(s) do make very clear is that there will be NO review of the existing hundreds of thousands of unlawfully made NCHIs.

It would not be a proportionate use of police resources to undertake a review of all existing records. Where these records do exist and if in any context they are discovered – for example, general policing enquiries, an enhanced disclosure certificate or when a person makes a subject access request (SAR) – particular care should be taken to review the record before considering disclosure.

So my advice remains to anyone who is even a little bit gender critical in public. Make inquiries of your local force now and ask them what they have recorded about you. Because it will be too late once that is disclosed to a potential employer, using the language of ‘victim’ and ‘hate’.