Before reading these Frequently Asked Questions, please take a look at the legal disclaimer at the foot of this page.
The Free Speech Union has recently had success in securing deletion of non-crime hate incident (NCHI) records. We set out below how to go about it. If you need help getting an NCHI deleted, please contact us at [email protected].
Background
Police forces follow guidance issued by the College of Policing, the professional body for the police in England and Wales. The College operates at arm’s length from the government, though it is a company legally controlled by the Home Secretary.
The College issues Hate Crime Operational Guidance (HCOG) – in Scotland, equivalent guidance is issued by Police Scotland. Under HCOG, an NCHI is defined as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice” based on a person’s protected characteristic (their race, sexuality, sex, etc.).
HCOG explicitly states that the ‘victim’ does not have to justify or provide evidence of their belief that an incident was motivated by hostility. The perception of hostility suffices. Police officers ‘must’ record an NCHI if the victim perceives hostility, and are guided not to directly challenge the victim’s perception.
Is the recording of NCHIs lawful?
As it stands, all NCHIs on police records were recorded under guidance that the Court of Appeal has found to be unlawful. While the lawfulness of an individual NCHI can only be determined on the facts of the case, there is a good argument that all NCHIs issued under the unlawful guidance are themselves unlawful.
Former police officer Harry Miller challenged the College and Humberside Police over the recording of an NCHI concerning lawful tweets he had posted. On his first attempt, the High Court agreed that Humberside Police unlawfully interfered with Harry’s right to freedom of expression by confronting him at his workplace about his social media activity and asking him to “check his thinking”. However, it held that the guidance itself – the HCOG – was lawful.
On appeal to the Court of Appeal, Harry made a breakthrough. The Court agreed that the HCOG was unlawful. By requiring officers to record NCHIs on a no-questions-asked basis, the HCOG went too far in restricting free expression – it guided officers to believe the victim in all cases, even if on an objective analysis the speech complained about was clearly not motivated by hostility or prejudice based on the victim’s protected characteristic. The Court therefore ordered the College to amend its guidance.
While the College voluntarily amended its guidance after Harry’s High Court victory, it has yet to make the further amendments ordered by the Court of Appeal. Any force that records an NCHI by strictly following the HCOG, as it currently stands, potentially opens itself to legal challenge. Note, however, that a force will have a defence if it can show that, despite what the guidance requires, it exercised common-sense discretion in assessing the victim’s complaint.
Harry Miller’s case concerned freedom of expression. The recording of NCHIs is also questionable under privacy and data protection law, though this has not yet been tested in court.
How do I find out if an NCHI has been recorded against me?
The current guidance does not require police forces to tell you if an NCHI has been recorded against you, though it does remind forces that they must act proportionately if they do choose to contact you.
It is therefore possible that an NCHI has been recorded against you without your knowledge (although this would only be at some point from 2014 onwards).
The most reliable way to find out if an NCHI has been recorded against you is to make a personal data subject access request. This will impose a legal duty on the police force to disclose to you any personal data – i.e., information that identifies you – concerning the NCHI.
Note two further points. First, NCHIs are recorded by local police forces, and not on the National Police Computer. Any subject access request should therefore be directed to your local police force.
Second, a subject access request concerns only personal data. It would not compel police to disclose other details of the NCHI that do not constitute information that identifies you. Disclosure of that information would require a freedom of information request.
Seeking information under both regimes – data protection and freedom of information – can be complicated. In addition, police forces often cite statutory exemptions that free them from the obligation to disclose. If you wish to find out if an NCHI has been recorded against you, contact the Free Speech Union and we may be able to advise you on the best route and how to word the request.
How do I ask for an NCHI to be deleted?
A request to your local police force for deletion of an NCHI should set out the following:
- Details of the NCHI.
- Why the recording of the NCHI:
- interferes with your right to freedom of speech – this would typically involve arguing that your comments were not objectively motivated by hostility;
- interferes with your right to privacy – this would typically involve arguing that recording sensitive information about you on the basis of the victim’s perception alone interferes with your privacy disproportionately; and
- breaches data protection law – this would typically involve arguing that creating and retaining the NCHI record is unlawful, excessive, and not for a legitimate law enforcement purpose.
Every case depends on its facts, and the above is only a very rough guide. If you wish to get an NCHI record deleted, we recommend you either contact the FSU or instruct a solicitor.
What if the police refuse to delete an NCHI?
If the police refuse your request for deletion, you have the option of taking legal action.
A claim that an NCHI interferes with your lawful rights to freedom of expressions and/or privacy would need to be made to the High Court by way of judicial review. A data protection claim would, if made on its own as a free-standing claim, be a civil claim to be brought in the County Court.
In all circumstances, issuing a legal claim should be a last resort and you should take legal advice – from a lawyer provided by FSU or instructed by you – before proceeding with any claim.
You may also consider making a complaint to the ICO in relation to data protection issues.
The FSU is happy to discuss any of the above options with its members.
Will an NCHI turn up on background checks?
If you apply for a job working with children or vulnerable adults, it is likely that you will be asked to consent to an Enhanced Disclosure and Barring Service (DBS) check, colloquially known as a criminal record check. The request for the check would be issued to data handlers at UK police forces. Chief officers at each force would then review any information about you in their records, and would only disclose information which the chief officer believes is relevant to the request and which should be disclosed.
No data is available on how often NCHIs are disclosed on Enhanced DBS checks. While chief officers must follow detailed guidance in making any disclosures, and must comply with legal protections for free speech and privacy, we are deeply concerned about the possibility of disclosure. The Court of Appeal noted that in Harry Miller’s case there was “at the very least, a non-trivial risk that in future such a record might be disclosed on an enhanced ECRC”. Further, chief officers must take into account the ‘seriousness’ of information contained in police records. We believe there is a real risk that any chief officer would feel pressured to treat as serious anything labelled a ‘hate incident’.
If you have any concerns, please contact the FSU.
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