A report into police involvement in politically contested matters by His Majesty’s Chief Inspector of Constabulary, Andy Cooke, catalogues a litany of concerns regarding the way officers are assessing, recording and reviewing non-crime hate incidents (NCHIs) – it comes as FSU research reveals the number of NCHIs logged by all 43 police forces in England and Wales has increased since the previous parliament legislated to bring the number down.
The report prepared by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) was commissioned in September 2023 by Suella Braverman, the former home secretary, following concerns that public confidence in the police was being eroded by forces “pandering to politically correct causes” and taking sides on controversial issues.
In its report, the policing watchdog considered several issues, including how police deal with NCHIs.
As defined by the College of Policing’s (CoP’s) 2014 Hate Crime Operation Guidance (HCOG), an NCHI is any incident perceived by the victim or any bystanders to be motivated by hostility or prejudice to the victim based on a ‘protected’ characteristic (race or perceived race, religion or perceived religion, and so on).
“Perceived” is the operative word here, since as the guidance goes on to note: “The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required.”
In other words, according to the CoP, the recording threshold for an NCHI is that someone has taken subjective offence to something perfectly lawful that someone else has said or posted online, whether it’s directed at them or not.
Perhaps unsurprisingly given the perception-based nature of the ‘offence’, in the five years following the publication of the CoP’s guidance, more than 250,000 of these Orwellian non-crimes have been logged by police forces in England and Wales. That’s an average of 66 per day.
In an effort to reduce that number, the last government passed legislation that made the recording and retention of NCHIs subject to a statutory Code of Practice.
This followed the case of former police officer Harry Miller, who challenged the CoP’s HCOG in the High Court, and then finally at the Court of Appeal – in a victory for free speech, the court ruled that the recording of NCHIs on the scale it was taking place was an unlawful interference in freedom of speech and a breach of Article 10 of the ECHR.
One reason why the High Court and the Court of Appeal looked askance at the recording and retention of NCHIs on the scale it was happening is because they can show up on enhanced criminal records checks and stop people getting jobs.
The previous Government’s decision to bring the recording and retention of NCHIs into line with the law forced the CoP to issue new guidance – Responding to Hate: Authorised Professional Practice (‘APP’) – telling the police to only record an incident as an NCHI when the subject involved is actually motivated by intentional hostility or prejudice towards a person based on a protected characteristic – henceforth, mere perception of ‘hate’ would not be enough – and where there is a real risk of significant harm or a future criminal offence being committed.
Has the new Code worked to bring down the overall number of NCHIs being recorded? Sadly not.
The FSU recently submitted FOI requests to all 43 police forces in England and Wales to find out if the number of NCHIs they were recording had gone down since the new Code of Practice was introduced in June 2023. According to our analysis of the data we got back, the number being recorded has actually increased.
Overall, the increase was 1.6%, but in certain regions it increased by much more. Across the 16 regions which saw an increase (out of 29 we analysed, covering 73% of the population of England and Wales), the number recorded has gone up by 28.2% since parliament legislated to bring the number down.
The report by HICFRS sheds some light on why this might be happening.
“There are,” it says, “significant differences in the extent to which forces have responded to the Code and the APP.”
All 12 forces inspected said they were “aware” of the Code, but researchers “found significant variations in how forces had responded and the actions they had taken”.
In three forces, “there had been no noticeable response, with one force simply circulating the [CoP] online training material to officers and staff, with little, if any, monitoring of completion rates”.
On the subject of the CoP’s online training, the report mentions separately that: “Police officers and staff of varying ranks and grades, and lengths of service, who had completed the online NCHI training often described it as difficult, confusing and not easy to understand” and that “it didn’t clearly describe the difference between a crime and an NCHI.”
Some officers and staff who had completed the online NCHI training “were unclear about what constituted an incident or crime [and] were also unclear about what behaviours capable of causing offence might amount to lawful ‘freedom of expression’”.
Were forces providing clear direction about the processes for dealing with NCHIs, including “any changes or updates introduced following the Miller case [and] the introduction of the Code”? Er, no.
Policies in five forces “pre-dated the Code and APP”, which meant “the direction and guidance provided to officers and staff in these forces weren’t up to date”.
And in the remaining forces? “Policies weren’t always clear.”
For example, some policies “didn’t clearly define the specific responsibilities of officers and staff and the processes for recording, assessing and responding to NCHIs”.
As a result, some working practices “didn’t align with policies, leading to inconsistencies in how forces dealt with NCHIs”.
Too often these inconsistences have led to errors, with the report going on to note that “some forces don’t effectively assess reported incidents, resulting in incorrect recording [of NCHIs]”.
This worrying cross-force lack of knowledge regarding “the difference between a crime, an NCHI and an incident that is neither”, is perfectly encapsulated in the following, Keyston-Cops-style incident:
A man reported that when he had tried to deposit a large amount of cash at a bank, staff, following anti-money laundering protocols that apply to all customers, questioned the origin of the money. The complainant took exception and became angry as he believed this was due to his ethnicity. Although the matter related to banking processes, the force initially recorded it as an NCHI. Following investigation, the officer dealing with the case concluded that it shouldn’t have been recorded and that the force should close the matter. However, a crime reviewer later incorrectly reclassified it as a racially aggravated public order offence, committed by bank staff. Eventually, after a further review, the incident was declassified as a crime.
In addition to a lack of knowledge among officers and staff, “a risk-averse culture” is also contributing to the incorrect recording of NCHIs and hate crimes. The watchdog found that “some officers and staff were fearful of being criticised for failing to record a crime and would record a crime without considering if the incident amounted to an NCHI, or if in fact no record was needed”.
During its case file review, the watchdog found that of the 120 NCHIs reviewed, forces had recorded 16 when there was no requirement to do so.
If this error rate (13.3%) is consistent, nationally, it would mean that of the 250,000 NCHIs the FSU believes the police have recorded since the CoP’s HCOG was published in 2014, over 30,000 of them were recorded in error.
Troublingly, researchers also found that police incorrectly recorded seven incidents on school premises as crimes or NCHIs. The report cites one such case as follows:
A force received an online report that a ten-year-old child had made a racist insult on school premises to another child of the same age. The parent of the child who was insulted was happy for the school to deal with this matter internally. In accordance with the Home Office Crime Recording Rules, the NCHI APP and the Code, the force shouldn’t have recorded this as a crime or an NCHI, as it was suitable for the school to investigate. The school subsequently investigated the matter and organised racism awareness sessions for pupils.
As per the Code: “If a report is made to the police about an incident that occurs in a school and does not amount to a crime, the appropriate police response would be to refer the matter to the school management team, and to offer advice to the complainant about available support. An NCHI record should not be made on policing systems, and the personal data of the subject should not be recorded.”
According to reports, Yvette Cooper, the home secretary, is planning to ditch the previous Government’s Code and force police officers to record more NCHIs, dragging us back to the days when the subjective perception of “hatred” was enough to have your name and address logged in a police database.
Back in March, Ms Cooper, the then Shadow Home Secretary, told the Telegraph that there needed to be a “new and effective hate crime action plan”, which would include “reversing the current presumption, specifically for antisemitic and Islamophobic hate, that personal data on perpetrators of such hate should only be recorded by police where there is a “real risk” of significant harm or future criminal offending”.
What Ms Cooper appears not to realise is that the reason for the “current presumption” was to bring the recording and retention of NCHIs into line with the law, particularly Article 10 of the ECHR, and if she “reverses” it, the likelihood is she would be encouraging the police to break the law – which is quite an unfortunate position for the Home Secretary to find herself in.
