The Conservatives will table an amendment to the Crime and Policing Bill abolishing non-crime hate incidents (NCHIs). Writing in the Telegraph, Shadow Home Secretary Chris Philp has pledged that his party will force a vote to make it “clear which MPs are willing to stand up for common sense, getting police priorities straight and for free speech – and which MPs are not”.
“The police,” Mr Philp went on, “should have only one overriding priority: catching criminals and protecting the public from crime. This emphatically does not extend to acting as the thought police or intervening when someone makes an off-colour remark online.”
Or, as the Conservative leader Kemi Badenoch put it more bluntly, NCHIs have “wasted police time chasing ideology and grievance instead of justice”.
The FSU, needless to say, welcomes the Conservatives’ initiative. Rather than being legislated for in Parliament, NCHIs were first created by police in the early 2000s in response to the murder of Stephen Lawrence, after the subsequent inquiry found that his killers’ extreme racism should have been identified and his death prevented. Speaking of the Lawrence case, Mr Philp acknowledges: “Where hatred is such that it is likely to lead to an actual crime, then there is a good case for police taking an interest – as they would in relation to any intelligence that might be a precursor to criminal activity.” But he also says, accurately, that “over the years, NCHIs have expanded beyond all recognition and have strayed far from this original intention”.
A turning point came in 2014 when the College of Policing in England and Wales published its Hate Crime Operational Guidance, which formalised the idea that NCHIs would be recorded (and retained) against individuals’ names – while providing a distinctly chilling definition of what counts as one.
According to the guidance, an NCHI is “any non-crime incident which is perceived by the victim or any bystanders to be motivated by hostility or prejudice” based on a ‘protected’ characteristic: race or perceived race, religion or perceived religion, and so on.
The key word here is “perceived” – because, as the guidance makes clear, “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, the threshold for recording an NCHI became that someone, somewhere had taken subjective offence to something perfectly lawful.
In the ten years following the guidance’s publication, the FSU estimates that more than 250,000 NCHIs were recorded in England and Wales – an average of 68 a day. (Little wonder that the police didn’t have time to send an officer round to your house if you reported a burglary.)
It should be stressed that we’re not talking about attempts to stir up hatred on the grounds of race, religion or sexual orientation. Those are actual hate crimes, prohibited by law. NCHIs refer specifically to “non-crimes”, i.e., comparatively trivial episodes that, for the most part, the police should not be wasting their time on.
In fact, things did take a turn for the better when in December 2021 former police officer Harry Miller won a landmark legal battle. Mr Miller had been reported to the police for transphobia after posting a number of gender-critical tweets. An officer visited his house, telling him to “check his thinking” and an NCHI was recorded against his name.
Mr Miller then challenged Humberside Police’s decision in the High Court and won. He also took the College of Policing to the Court of Appeal to challenge its guidance – and won that too. In a notable victory for free speech, the court ruled that the recording of NCHIs on the scale that was taking place was an unlawful interference in freedom of speech and a breach of Article 10 of the European Convention of Human Rights (incorporated into the UK Human Rights Act 1998).
One reason why the High Court and the Court of Appeal looked askance at the widespread recording and retention of NCHIs is that they can show up on enhanced criminal-records checks and stop people getting jobs. As Lord Macdonald QC, the former Director of Public Prosecutions wrote in the Times: “NCHIs have consequences. They are not anonymised. They sit forever against the names of the alleged perpetrators without any real investigation or right of appeal… We need hardly imagine what an HR manager would make of a job applicant with a police history of hate.”
Following that 2021 victory, the FSU worked to secure an amendment to the Police, Crime, Sentencing and Courts Bill which gave the Home Secretary the option of placing the recording and retention of NCHIs on a statutory footing, governed by a Code of Practice approved by Parliament.
In March 2024, then Home Secretary Suella Braverman took that option, publishing a code that required police to exercise their common sense and be mindful of people’s right to free expression. “All efforts should be made,” the code said, “to avoid a chilling effect on free speech (including, but not limited to, lawful debate, humour, satire and personally held views)… even where the speech is potentially offensive.”
However, a report by HM Inspectorate of Constabulary in September 2024 found that the new rules were being ignored and that the police had simply carried on as before.
Not that this was will have dismayed the new Labour government. Shortly before she became Home Secretary in 2024, Yvette Cooper proposed a tightening up of the Conservatives’ code, declaring the need for “new and effective hate crime action plan”, which would include “reversing the current presumption, specifically for anti-Semitic 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”.
According to Mr Philp’s article, “Police investigated and recorded personal data on around 13,000 NCHIs last year – taking up around 30,000 hours of police time… It is clear the police are now wasting colossal amounts of their time on NCHIs and infringing our ancient rights to free speech while they do so.”
Meanwhile, one of the superficially persuasive justifications for NCHIs has just been torpedoed too. The College of Policing claims that they help forces build a picture of community tensions, of potential wider criminality and of where they need to allocate resources. Unfortunately, the Telegraph reported this week that “despite logging thousands of NCHIs every year, most forces have admitted they carry out no analysis of the data and so have little idea as to their effectiveness in detecting and preventing hate crime”.
All in all, you can see why Mr Philp concludes that “it’s clear that the Labour government has no real intention of fixing this problem. This is why the Conservatives are now announcing a new policy: NCHIs as a category of incident should be scrapped in their entirety.”
More here.
