The long and winding road

How far into our quest to destroy the nonsense that is ‘perception based’ recording of ‘non crime incidents’ have we got? To continue the metaphor to breaking point, it looks like we have slain the dragon – but the message still hasn’t got down the food chain.

Brief recap: January 2019, Harry Miller has his ‘thinking checked’ by PC Gul over his ‘transphobic tweets’ such as ‘huh?’ and reposting a feminist song lyric. Outraged, he and Rob Jessel meet to form ‘Fair Cop’, to challenge the ‘Hate Crimes Guidance’ that was used by the police to target anyone who wanted to make even mild criticism or mockery of ‘gender identity ideology’. So long as someone told the police they were upset or offended by what you said, you and all your personal details would be recorded on a police data base, as a ‘crime report’ and the complainant as a ‘victim’. for an indefinite amount of time, and this recording could potentially be disclosed to prospective employers. No one was really quite sure.

Harry went to court as Humberside Police refused to delete the records about him. In February 2020 Mr Justice Knowles agreed that Humberside had acted unlawfully and created a ‘chilling effect’ on Harry’s fundamental rights of freedom of speech by sending an officer to talk to him at his workplace. However, the Judge did not rule that the Hate Crimes Guidance itself was unlawful, despite commenting that the complainant Ms B was on the outer edges of rationality in her report of ‘being offended’. In recognising the public importance of the issue, he agreed to see if the Supreme Court would hear the appeal by ‘leap frogging’ the Court of Appeal. The Supreme Court declined but the Court of Appeal eventually found in December 2021 that the guidance itself was unlawful – a disproportionate breach of article 10 ECHR and a licence for the malicious and irrational to control the speech of others. Counsel for the College of Policing had to concede that there were now so many recorded ‘non crime hate incidents’ it was impossible to subject them to any kind of analysis.

In the meantime, I had launched my own JR, alongside teenager Ms B who objected to the Hate Crimes Guidance being pushed on schools, teacher and pupils being encouraged to ‘inform’ on one another. Harry’s case had focused firmly on article 10 and freedom of speech; mine looked more closely at the article 8 privacy implications and issues of data protection, as Wiltshire Police had recorded me as ‘a barrister posting hate’ alongside my name, my address, my telephone number and my work email. One example of that ‘hate’ was a picture of my dog with the caption ‘my dog would call me a Nazi for cheese’.

The College of Policing had a stab at revising the guidance, but it seemed they did little more than provide a link to the Court of Appeal judgment and make some vague comments about the importance of freedom of speech.

However wider concern was growing. Parliament provided for parliamentary scrutiny of statutory guidance about the police recording and retention of personal data relating to non crime hate incidents with the Police, Crime Sentencing and Courts Act 2022.

In March 2023 we finally saw the draft Parliamentary Code of Practice. It was an excellent document, with an entire chapter on the importance of freedom of speech and set out clearly that ‘perception based’ recording was not permissible as it gave far too much latitude to the malicious and irrational. Any personal data kept about a ‘hate incident’ should be limited. The College of Policing responded with its own ‘consultation’.

We finally have the finished article. On June 2nd the College of Policing published:

A new statutory Code of Practice (opens an external website in the same tab) and corresponding authorised professional practice (APP) has come into force for officers responding to reports of non-crime hate incidents.

The Code, issued by the Home Secretary, provides guidance to the police in England and Wales for recording non-crime hate incidents (NCHIs). It sets out the common-sense and proportionate approach that should be adopted by officers.

The College of Policing’s APP for recording NCHIs has been updated to align with the content of the Code.

The Code introduces an additional threshold test. This clarifies that personal data should only be included in an NCHI record if the event presents a real risk of either:

    • significant harm to individuals or groups with a particular characteristic or characteristics
    • a future criminal offence being committed against individuals or groups with a particular characteristic or characteristics

For the purposes of the Code, a ‘particular characteristic’ means race, religion, sexual orientation, disability or transgender identity, as defined in hate crime legislation. This test will enable the police to intervene where necessary to safeguard vulnerable individuals and communities.

The Home Secretary was very clear what this meant to her, repeating that offending someone is not a criminal offence.

So have we finally reached the end of our quest? Sadly, it seems we have not. News of the dragon’s death does not seem to have reached far beyond the castle. In 2022 Darren Brady was threatened with arrest for posting on social media an image of the ‘progressive Pride flag’ set at an angle to resemble a swastika. Harry was then arrested for objecting to this.

The image was a comment on the authoritarian traits demonstrated by the ‘gender identity’ ideology – that those who criticise or mock it may expect criminal investigation or loss of livelihood. Many may reasonably object to the use of Nazi iconography to make a wider political point, fearing that it diminishes the horror of that regime. However, it cannot be reasonable to suggest that publishing such a picture is a criminal offence, or even a ‘non crime hate incident’, no matter how ‘offended’ some claim to be.

The Chief Constable of Hampshire police however disagrees. Harry wrote to him after no further action was taken against either him or Mr Brady, asking for acknowledgment that the police had seriously overstepped. The Chief Constable instead warned Harry that anyone publishing this image would face arrest for a breach of section 127 (2) of the Communications Act 2003:

A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a)sends by means of a public electronic communications network, a message that he knows to be false,

(b)causes such a message to be sent; or

(c)persistently makes use of a public electronic communications network.

Harry thought this was nonsense. So he republished the image in a direct challenge to the police on 1st June 2023:

At the time of writing it is now June 4th, the tweet has had nearly 1 million views and Harry hasn’t been arrested, nor have any of the thousands of people who liked, retweeted or commented on the tweet. So either the police are making empty threats or at some point they are going to arrest him – and for what? Posting a picture to make a satirical and political point, which made some people feel offended. I can’t put the dangerous stupidity of this position any better than Rowan Atkinson, so I won’t try. Listen to what he says – freedom of speech is the second most important thing in the world, after food in your mouths. The right to speak freely is the right on which all others depend. The police have to get the message. If they won’t, I guess we just keep on hammering it home. We have energy left for many more dragons.