We need to rebalance the policing of non-crime hate incidents
Lord Herbert of South Downs
My Lords, I draw attention to my entry in the register of Member’s interests as chair of the College of Policing. Did not the recording of non-crime hate incidents have its genesis in the Macpherson review, as the noble Lord, Lord Austin, said? But that was a quarter of a century ago and since then, we have had the expansion of hate crime laws, the explosion of social media and the very heavily contested space of online comment. Is it not right for the Home Secretary to call for a common-sense approach to this? We may need a rebalancing, so that the police can focus on the job they are meant to do and not be drawn into the policing of mere disputes, which is bad for public confidence in the service.
Lord Hanson of Flint (Minister of State, Home Office)
I hope the noble Lord does not take this the wrong way, but I pay tribute to him for his work as chair of the College of Policing.
I have tried to say to the House that non-crime hate incidents are there to provide background information. They are not necessarily leading to prosecution or to crime, but the background information can be effective in building up a picture of potential areas where crime may well exist, because people will overstep the mark into criminal activity. We will try to look at that in the round, and as part of the review of police performance, that will be taken into account.
You can read further questions that were asked on this issue here.
Background
The origins of NCHIs go back to recommendations 12-14 of the 1999 Stephen Lawrence Inquiry report which stated that all allegations of racist crimes and incidents should be recorded based on the perception of any person. National guidance on NCHIs has developed since the year 2000, when the Association of Chief Police Officers (ACPO) produced its first Hate Crime Manual setting out national policy for police responding to hate crimes and hate incidents. In 2012 national police guidance in this area was transferred from ACPO to the College of Policing. In 2014 the College of Policing published the Hate Crime Operational Guidance.
In 2022 the Court of Appeal ruled that this Guidance failed to strike a proportionate balance between the Article 10 rights and interference with those rights. The Court deemed the Guidance unlawful and a disproportionate interference with Article 10 as it did not constitute the least intrusive method for dealing with such matters.
In response to the judgment, the College of Policing worked with the Home Office, NPCC, legal counsel and subject matter experts to review and develop guidance that was in line with the Court’s judgment and provided additional safeguards. This was published as interim Authorised Professional Practice (APP) in July 2022, pending the introduction of a Home Office Code of Practice.
The Code of Practice published by the previous government in June 2023 is consistent with the approach previously set out in the College’s Interim APP but includes an additional threshold test to be applied to a report of a NCHI before recording personal information which may only now be included in an NCHI record if the incident “presents a real risk of significant harm to individuals or groups with a particular characteristic(s) and/or a real risk that a future criminal offence may be committed against individuals or groups with a particular characteristic(s)”.
The College’s current Authorised Professional Practice on hate crime, which reflects the Code, states in relation to NCHIs:
When making a record, call takers, police officers and staff must use common sense and judgement to determine whether the additional threshold has been met. This may include examples where the behaviour of the subject falls short of criminal conduct but may later be evidence of a course of conduct (for instance, harassment).
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An NCHI must not be recorded if the complaint is trivial, malicious or irrational, and a hate or prejudice qualifier should not be added to the record in these instances.
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The police must respond to allegations of hate speech proportionately, in a way that does not have a chilling effect on the speaker’s freedom of expression. Any interference with the speaker’s freedom of expression must be no more than is strictly necessary to achieve the legitimate policing purpose.
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Even where the speech is potentially offensive, a person has the right to express their personally held view in a lawful way.
Disagreement and debate do not, on their own, indicate hostility.
In September 2024 the HMICFRS Review of Activism and Impartiality found that “a risk-averse culture and lack of knowledge among officers and staff contributes to unnecessary and incorrect recording of NCHIs and hate crimes. During our case file review, we found that of the 120 cases we reviewed, forces had recorded 16 NCHIs and 14 hate crimes when there was no requirement to do so.”
The Prime Minister has said that police forces should prioritise fighting crime that “matters most to their communities” rather than spending public money on investigations involving hurt feelings (The Times, 17 November 2024).
At the NPCC/APCC Conference on 19 November 2024, the Home Secretary said:
“You have to really have a common sense and consistent approach. And one of the other things I think that the Inspectorate report shows is around the importance, for example, of monitoring things like antisemitism, which has increased over the last 12 months, and that is immensely important.
“I think the overall approach that the Inspectorate set out (to NCHIs) is a sensible, common sense approach that needs to be consistent” (The Times, 19 November 2024).