Non-Crime Hate Incidents (NCHI)

The police have been specifically recording any incident that has a racial element since 1988. A racial incident was defined in 1985 by the now defunct Association of Chief Police Officers (ACPO) in the following terms:

Subsequent to the 1999 MacPherson Report, following the Stephen Lawrence enquiry, police forces adopted the following definition of what amounted to a racist incident:

The focus therefore shifted to what the victim or a witness perceived to be racist, rather than whether the incident appeared racist to the officer. The MacPherson report also introduced the idea of the “non-crime” incident, stating that “racist incidents” could include actions that fell short of criminality, and that they should be recorded by the police:

Initially there were no specific guidelines that detailed how Non-Crime Hate Incidents should be recorded.  Then in 2014 the College of Policing introduced their “Hate Crime Operational Guidance”.

The College of Policing is a professional body for the police in England and Wales, and is an “arm’s length body of the Home Office” . Its guidelines do not have the force of law, although in practice, as they direct officers how to deal with cases, they have a similar effect to law.

The Guidance radically changed the approach to the recording of “hate” incidents and following the McPherson report, directed officers to record incidents according to the victim’s perception of what amounted to hate. The Guidance did not require victims to justify or provide any proof of their belief, and officers were directed not to challenge a victim’s perception.

The perception based approach is helpful where it is not clear that a victim has been targeted due to an innate characteristic, but where hate is a likely motivation. For example if a person of one race is attacked by a group of people belonging to another race – there may have been no clear racial motive, but the victim cannot give a reason for the attack other than his or her race.

Along with the perception based approach, the Guidance also adopted the policy of recording non-crime “hate incidents”.  Hate incidents were defined as being any non-crime incident which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a person’s:

• race or perceived race,
• on a person’s religion or perceived religion,
• on a person’s sexual orientation or perceived sexual orientation,
• on a person’s disability or perceived disability,
• or against a person who is transgender or perceived to be transgender.

The guidelines specified that if no crime could actually be identified, that the police should record the incident as a non-crime hate incident (NCHI):

The College of Policing were alive to the possibility that the Guidelines could result in over policing, and the creation of a “thought police”, but they dismissed these concerns, stating that although the right to freedom of expression is an important right, it is a qualified right, and could be limited.

Although NCHIs are not crimes, and usually do not result in a formal record on the PNC  – they are recorded on “local police systems”. Aside from the anxiety caused by having your name associated with a hate incident on police systems, an NCHI can have a very significant practical impact on someone’s life. Data recorded on local police systems can be disclosed as “relevant information” on an Enhanced DBS Certificate.

The police do not have carte blanche powers to disclose any information they choose on an Enhanced DBS Certificate, and they must carefully assess an incident before deciding whether it should be disclosed. If the police do choose to disclose a NCHI as relevant information on an Enhanced DBS certificate, this can be appealed to the Independent Monitor and also to Court.

Given the disclosure of an NCHI is left to the discretion of the police, this can leave people with a considerable feeling of anxiety about the recording of an NCHI against their name. In 2020 the issue came before the High Court (R. (on the application of Miller) v College of Policing [2020] EWHC 225 (Admin)) after a former police officer, Harry Miller, had an NCHI recorded against his name related to alleged gender critical/transphobic tweets.

Mr Miller was also a former police officer and he had never been the subject of any complaints about transphobia. He had no particular motivation or desire to change the law related to transgender people, but he posted some comments challenging the beliefs that underpinned the proposed reforms to the Gender Recognition Act 2004. The case related to 31 of Mr Miller’s tweets in total. These tweets were reported via an online system, and were passed to Humberside Police’s Crime Reporting Team, who recorded it as a non-crime hate incident. Only one person complained about Mr Miller’s tweets. A “community cohesion officer” visited Mr Miller’s work, Mr Miller was not there on that day but he spoke to the officer on the phone later that day. In the phone call the officer misrepresented and/or exaggerated the effect of the tweets and the number of complaints the police had received. The officer also warned Mr Miller that if he “escalated” matters then the police might take criminal action. The officer did not explain what escalation meant. The media were informed of Mr Miller’s case which prompted a statement from the Assistant Chief Constable. The Chief Constable described the tweets as being “transphobic” and also referred to the possibility of such incidents “escalating”. Mr Miller complained to Humberside police, the police again referred to the possibility for escalation and criminal proceedings, and they rejected his complaint.

Mr Miller then issued judicial review proceedings arguing that the Hate Crime Operational Guidance 2014 had unlawfully restricted his Article 10 ECHR freedom of expression rights.

The Court found that the police had left Mr Miller with the clear belief that he was being warned by them to stop commenting on transgender matters, and that if he continued, criminal prosecution was likely to follow. The Court found that at no stage did the police explain on what basis they thought that the tweets could “escalate” to a criminal offence, nor did the police indicate on what evidence they thought there was a risk of escalation, or for which offence.

The Court found that the Hate Crime Operational Guidance 2014 was lawful because the police had the power at common law to record and retain a wide variety of data and information, and that through the police’s duty to the public, meant that they had to take steps to prevent and detect crime, which included the power to use, retain and disclose information. The Court found that collecting details of hate crimes and non-crime hate incidents was part of the police’s duty to keep the peace and to prevent crime, and was lawful on that basis. The Court found that the recording by the police of Mr Miller’s tweets as non-crime hate speech, pursuant to the Guidance, did not amount to an interference with his rights under Article 10 of the ECHR, or that the interference was prescribed by law according to the Hate Crime Operational Guidance, and that the guidance was not disproportionate.

Although the Court found that the Guidance was lawful, the Court stated that Humberside police’s actions had been unreasonable given the importance of not restricting legitimate political debate. The upset caused to the person who had complained about Mr Miller’s tweets  did not justify the officer turning up at his workplace, and then warning him about criminal prosecution. The Court found that Mr Miller’s comments were lawful stating that the tweets were not directed at the transgender community and were primarily directed at Mr Miller’s twitter followers. The Court said that Humberside Police’s treatment of Mr Miller disproportionately interfered with his right to freedom of expression.

The Court was scathing of Humberside Police’s actions, coming close to comparing them to the Nazi era Gestapo or the Russian Cheka:

Although Humberside Police had been heavily criticised by the Court, Mr Miller still took issue with the fact that The Hate Crime Operational Guidance was deemed to be lawful, and that Humberside had not broken the law by recording his tweets as an NCHI.

Before the Court of Appeal (R. (on the application of Miller) v College of Policing [2021] EWCA Civ 1926) it was argued that perception-based recording of NCHIs was unlawful.

The court held that the recording of non-crime hate incidents was clearly an interference with the Article 10 freedom of expression right, and the fact that such incidents were being recorded and stored in a police database was likely to have a serious chilling effect on public debate – to the extent that even members of Parliament had become unwilling to discuss matters related to transgender issues.

The Court stated that Mr Miller’s rights had been violated as he was required to modify his conduct because of the Guidance, or risk having a non-crime hate incident being recorded against him. The Court said that not only had there been a chilling effect on Mr Miller’s freedom of expression, there was also a “non-trivial risk” that in future the NCHI could be disclosed on an enhanced DBS certificate, and there were insufficient safeguards in the Guidance to address these issues. The Court also found that the Guidance was disproportionate and there was a real and significant interference with Article 10.

The Court found that recording perception-based hate incidents had a legitimate aim linked to the prevention of crime, and that this aim was sufficiently important to justify interfering with the fundamental right to freedom of expression. However, the court found that there should be less intrusive means to achieve those legitimate aims. The Guidance did not address the possibility of excluding irrational complaints, or those where there was no evidence of hostility. There was very little that addressed the chilling effect on the legitimate exercise of freedom of expression. As the incidents had to be recorded, there was no capacity for proportionality (common sense) to be applied when deciding what to was to be recorded.

There was also nothing in the Guidance about the language to be used in a NCHI, or whether someone should be notified that a hate incident had been recorded against them. The Court recognised that there were various legal safeguards related to the retention, recording and disclosure of information, which applied to all forms of police data, but these related to the protection of the right to privacy, not to the freedom of expression.

The College of Policing amended the Guidance in 2020 after the initial Judicial Review ruling, the Court of Appeal however found that the revisions did not go far enough to address the chilling effect of perception-based recording of non-crime hate incidents.

After the ruling the Home Office issued Statutory Guidance, entitled Non-Crime Hate Incidents: Code of Practice on the Recording and Retention of Personal Data. This took responsibility for NCHI guidelines out of the hands of the College of Policing and put them onto a legal footing. The new guidance introduced additional safeguards to protect freedom of expression and raised the threshold for when personal data could be recorded for a non-crime hate incident.

Although the Guidance is no longer the responsibility of the College of Policing, they have published an authorised professional practice (APP) on “Recording non-crime incidents perceived by the reporting person to be motivated by hostility”. The APP in general indicates that the personal data of a “subject” should not be recorded, unless the additional threshold that is set out in the Home Office Code of Practice is reached. The APP states the following:

The Non-Crime Hate Incidents Code of Practice states that personal data, names and addresses of “data subjects” can only be recorded if certain conditions are met. First the police have to determine if a non-personal data NCHI can be recorded according to the following rules:

Once it is decided that it is proportionate to create a NCHI record without personal data, the police can then create an NCHI record which includes the personal data of the subject if the following conditions are also fulfilled:

The Code of Practice also states that if a data subject’s personal data is processed, in most circumstances, the individual should be promptly notified.

The Additional Threshold Test at step f) above is described as the following:

The new Code of Conduct rules are still quite broad, and open to interpretation. It is also hard to see how the Code will be properly implemented given the extreme financial and resource pressures most police forces are under. Nevertheless the Code does at least provide protections against frivolous and arbitrary recording of NCHIs, with a much clearer and better emphasis on the protection of personal data. Only time will tell to see how the Code is implemented, and whether personal data will still be collected on the same scale as before.

Despite the work that was done by the Home Office and the College of Policing to improve the recording of NCHIs, the current government appears to be attempting to expand the recording of NCHIs. It was reported in the Daily Telegraph that a leaked Home Office report recommended more recording of NCHIs.

The Telegraph went so far as to say that the report recommended reversing the new Code of Practice, and had recommended “a new offence of making “harmful communications” likely to cause “psychological harm”.”

It is unclear whether the report recommended removing the protections related to personal data, but given the report appears to recommend the complete scrapping of the Code of Practice, it seems possible that the intention is to move backwards towards the original College of Policing Guidance, that was previously ruled to be unlawful.

If you have been affected by any of the issues in this article, then please get in touch. We have years of experience in challenging the retention and disclosure of unfair or illegally retained police data.