"In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society." - Justice Knowles (Miller v College of Policing)
Is being offensive an offence? PiPs Newcastle met in December at the Telegraph Pub to discuss the phenomenon of non-crime hate incidents (NCHIs) and their impact on free speech.
The topic was introduced by Dr Kyri Kotsoglou, Associate Professor at Northumbria Law School. He began by asking us what the following things have in common: milk, the countryside, punctuality, applause, mathematics, fish, grammar, classical music, smiling, yoga, jogging, and…free speech.
Did you guess the answer? That’s right, they are all racist – along with over a hundred other seemingly inoffensive things in this list helpfully compiled by Titania McGrath.
But these comical examples highlight a serious issue. The Hate Crime Operational Guidance 2014 defines a hate incident as
any non-crime incident which is perceived, by the victim or any other person, to be motivated by hostility or prejudice. As Titania’s list shows, almost anything can be perceived as offensive if you are really determined to be offended. Kyri pointed out that under this guidance, using standard English or asking someone to be punctual could result in the recording of a non-crime hate incident.
Perhaps unsurprisingly given this loose definition and reliance on subjective perception, there has been a proliferation of NCHI recording. Kyri stated that over 120,000 such incidents were recorded by UK police forces between 2014 and 2019. Even the former Home Secretary, Amber Rudd, has had a non-crime hate incident recorded against her – simply for giving a speech about foreign workers at the Conservative Party conference.
Kyri informed us that the Guidance is a legacy of the Macpherson Inquiry into the Stephen Lawrence murder. To detect tensions within communities and prevent escalation to serious harm, the Inquiry recommended setting up a comprehensive system for reporting racist incidents, which should include non-criminal incidents as well as crimes, with individual perception as the sole criterion for defining an incident as racist.
Kyri gave examples of how the Guidance has been implemented and argued that by uncritically recording a complaint on its own terms, police forces allow the complainant not only to report what happened (in his or her opinion), but also to dictate the meaning of important legal terms.
So what does this mean for free speech?
Kyri explained that the unscrutinised perception-based recording of NCHIs is turning the mere expression of thoughts into an incalculable risk, because citizens cannot foresee the consequences which a given action might entail. The Guidance treats unsubstantiated claims as proven facts. The impact of NCHIs on free speech is therefore not due to the actions of maverick police officers, but the procedural and evidential architecture of the 2014 guidance, which dictates that any expression of opinion must be recorded as a NCHI if it is perceived as hateful.
Is there any reason for optimism?
Kyri outlined the case of Harry Miller which brought the issue of NCHIs to wider public attention. Following an anonymous complaint, former police officer Harry Miller had a non-crime hate incident recorded against him for social media posts containing ‘gender critical’ views. However, he later won a legal challenge when the Court of Appeal ruled that the Mr. Miller’s right to freedom of expression under Article 10 of the European Convention on Human Rights had been infringed by the 2014 Guidance.
Dame Victoria Sharp highlighted the problem that “there is nothing in the Guidance about excluding irrational complaints” and stated that proposed revisions to the Guidance “do not go very far, or not nearly far enough to address the chilling effect of perception-based recording.” The Court stressed that “additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary.”
Following this judgement, a new Code of Practice was published in June 2023 with the aim of establishing a proportionate and common-sense approach to dealing with reports of NCHIs. Kyri said that this new Code of Practice is a step in the right direction. It stresses that perception alone is not sufficient basis to record an NCHI, and that terminology with criminal connotations such as ‘victim’ and ‘perpetrator’ must not be used. It requires police forces to opt for anonymised recording of NCHIs by default, only recording the personal data of the subject of the complaint if there is a real, objective risk of future criminal offence. Crucially, it demands that police officers apply judgement and common sense to determine whether it is reasonable to record an incident.
Following this thought-provoking and informative introduction, we had an interesting discussion featuring some excellent and very topical contributions from members of the Women’s Rights Network.
We discussed an outrageous incident which took place the previous month here in the North East. Northumbria Police intimidated a woman for posting gender-critical views on X, including the (perfectly accurate!) statement that transwomen are men. The woman was threatened with arrest unless she attended a ‘voluntary’ interview at the police station. We noted that this incident took place after the publication of the new Code of Practice, which doesn’t bode well.
NCHIs can be recorded in the event of perceived hostility based on race, religion, sexual orientation, disability or transgender identity. In fact, a very large proportion are the result of malicious accusations by a small number of individuals against women with gender-critical views. It is clear that NCHIs are being used strategically as a bullying tactic to silence people, and this is something Kyri aims to quantify in ongoing research.
The issue of ‘two-tier’ policing and justice was raised, with several recent examples of the same law being applied very differently to different groups of people. We agreed that the hijacking of institutions by ideologues is a key factor in the injustice arising from the NCHI system.
Naturally, the question arose as to whether this is something the police should really be spending time and resources on. The charge and conviction rates for common crimes such as burglary, mugging or car crime have fallen so low that many victims have lost faith and simply don’t bother reporting crimes to the police.
Perhaps the most important question of the evening was: what are the police actually doing with the data they collect? There is no evidence that gathering this data is achieving its original purpose of ‘preventing escalation to serious harm’. On the contrary, the prevalence of malicious reporting and the chilling effect on free speech are likely to create more tension and greater risk of harm.
We agreed that the police do need to be aware of tensions in order to prevent hostility escalating to crime, but as Kyri said, currently the cure is worse than disease.
Kotsoglou, K 2023,
Non Crime Hate Incidents: Private Language or Reasonable Foreseeability?, Criminal Law Review.
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