This article is taken from the May 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

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PCSO Connor Freel was patrolling the streets of Mold, North Wales, when 19-year old Declan Armstrong and his friend pulled up on bikes on the opposite side of the road. The teenager shouted: “Is it a boy or a girl?” at the PCSO, twice. Freel, who is transgender and had previously said in an interview that “no-one suspects I was born female”, reported the incident to colleagues as a hate crime. 

Hate crime is a descriptor applied to a crime where the perpetrator demonstrates hostility towards certain characteristics of the victim, including “gender reassignment”. North Wales Police referred the case to the Crown Prosecution Service. Armstrong, who has Asperger’s, was charged with a transphobic hate crime — specifically, using abusive or insulting words with intent to cause harassment under the Public Order Act. 

The police have a history of employing the Act against those who insult them. Back in 2006, a student was charged for asking a mounted officer: “Excuse me, do you realise your horse is gay?”, a remark which police and CPS deemed homophobic and “likely to cause harassment, alarm or distress”. In 2013, after a spate of similarly trivial cases, the Lords passed an amendment to the Act which raised the threshold for charge. 

However the legislation remains available for use in prosecuting remarks such as the comment to Freel, where there is a defined victim. When public order offences are classed as hate crimes because comments were made about a person’s race, sexuality, religion, disability or gender reassignment, prosecutors will usually push for an increased sentence. They did so in Armstrong’s case.

Armstrong, who lives with his grandparents and works as a carer for a relative, claimed the PCSO was mistaken and denied saying anything at all. Mold magistrates convicted him despite witness evidence from his friend. At sentencing in January 2020 the court accepted probation service evidence that Armstrong had no prejudicial views or entrenched discriminatory attitudes. 

Nevertheless, after hearing that Freel, who is a campaigner on transphobic hate crime, was left “upset and embarrassed” by Armstrong’s comment the judge handed down an uplifted sentence because of the crime’s transphobic nature. Imposing a 12-week night-time curfew on the teenager, he also ordered Armstrong to pay £590. This included £200 compensation to the PCSO which the judge said he hoped Freel would not take as an insult.

The extent of hate crime prosecutions involving insults and verbal abuse of the police is not clear. However figures obtained under the Freedom of Information Act shows that in some regions of England and Wales a large proportion of hate crimes that result in charge now have a police victim. This is despite the fact that crimes against the police make up a tiny percentage of recorded hate crime in these areas. 

In 2019/20 cases with police victims accounted for 53 per cent of all hate crimes charged in North Yorkshire and 43 per cent in the West Midlands. For Gwent Police, Warwickshire, West Yorkshire Police and the British Transport Police the figure was a third or more, with the Metropolitan Police at 29 per cent. Public order offences account for many of these cases and the data shows that for most forces, the percentage of cases involving police victims has increased over the past three years. 

The trend has occurred over a period when hate crime prosecutions have fallen overall — almost a third fewer cases were brought to court last year than three years previously — and police-recorded crimes have risen.

This isn’t entirely surprising. Increased use of police body-worn cameras has improved availability of evidence of crimes against officers. Another factor may be forces’ implementation of “Operation Hampshire”, a seven-point plan that promises zero-tolerance of physical and verbal abuse of officers and staff. 

Some policies say the force’s chief constable will provide a personal impact statement for each case to improve the chances of successful prosecution. The CPS includes the plan, which says “being assaulted or abused in any way is not part of the job” in its 2020 agreement on offences against emergency workers, indicating its own willingness to support prosecutions. 

Another factor may be the CPS’s obsession with conviction rates (the proportion of charged cases that result in conviction). In its press release of Armstrong’s case — under the headline “Transphobic hate crime results in increased sentence for Mold teenager” — the CPS boasted of securing convictions in 84 per cent of the hate crime cases it prosecuted.

Any decision not to refer a crime against an officer where the evidential threshold has been made may be open to legal challenge

One way to maintain or improve high conviction rates is to only prosecute cases with rock solid evidence, such as those with bodycam footage of the crime and police witnesses. The CPS says it currently prosecutes 87 per cent of hate crime referrals, pushing responsibility back to the police. But the police liaise with prosecutors before referral and institutional knowledge that certain cases will not be charged will clearly influence decisions to refer on.

Given these factors, police victims’ domination of their own forces’ hate crime charge sheets is understandable. But is it desirable? Is it correct to advise police that “being abused in any way is not part of the job”, when verbal and physical altercations are an everyday occurrence on the frontline of policing? Is the prism of hate crime, with its emphasis on the personal, helpful to officers in dealing with the abuse they will inevitably — and repeatedly — receive by virtue of their uniforms?

Few would argue that the racial abuse visited on the black officer who featured in the TV show Call the Cops in 2019 should go unpunished. In contrast Armstrong’s case brought accusations of “snowflake police”, and suggestions that Freel was too sensitive for the job. 

It’s not hard to find other reports where the “devastating impact” of the hate crime, which justifies a harsher sentence, is not immediately apparent. In June 2020 Thomas Mitchell, a 56-year old, homeless, drunk Glaswegian with mental health problems was jailed for 16 weeks for hate crime. Mitchell called officers “English bastards” and “lesbians” when they reprimanded him for swearing outside a police station, and he accused them of killing black people. In a victim statement, one officer said she felt Mitchell had made “a threat to disclose her sexuality and that it was racially aggravated”. Mitchell was ordered to pay the officer £100 compensation.

Then there’s the one about the drunk who on arrest said: “Don’t touch me, are you from South Africa? Are you from apartheid?” and “I hate those white South Africans”. He was convicted of racially aggravated harassment after the court was told “PC Townsend is from Australia and took offence to being associated with apartheid.”

But there is a sound rationale behind a zero-tolerance approach to prosecutions. Most police forces do not reflect the society they serve and decisions to ignore crimes against minority officers and staff will do little to improve recruitment and retention of under-represented groups. The 2021 Race Commission report highlighted racist abuse of ethnic minority police officers — including from those of their own race — and rising assaults on police as a barrier to force diversity, which is important for several aspects of policing.

With the roll-out of Operation Hampshire, any decision not to refer a crime against an officer or staff for charge where the evidential threshold has been made may also be open to legal challenge or intervention by the Police Federation. 

On the other hand, the concept of hate crime rests on an understanding of power relations. The influential US academic Barbara Perry described hate crime as an exercise of power by the dominant over the weak, a mechanism of oppression enacted to retain societal hierarchies. This is questionable — hate crime occurs between and within minorities — but the theory breaks down entirely where the police form a dominant victim group. 

Hate crime charge sheets and trials entirely composed of police victims is clearly not in the public interest

That PCSO Freel is a member of a vulnerable group who felt personally targeted does not defray the imbalance of power evident in Armstrong’s case. With no independent witness, Freel was believed; Armstrong — who continues to maintain his innocence — was not.

The youth received widespread media attention, with the Daily Mail branding him a “teenage yob”. Action for Asperger’s spoke out in his support, saying “It’s not fair to punish someone with Asperger’s for communicating honestly and directly — it’s part of who they are.” But his friend, who was with him at the time of the incident, told The Critic Armstrong had received abuse himself as a result of the press coverage and he and his family had been badly affected by what had happened. 

The disparity between the chances of a police victim and a member of the public seeing a perpetrator convicted following a hate crime arguably represents a larger policy problem. The vast majority of hate crime victims do not receive any kind of justice. 

Reports of violent hate crime against the disabled rose by 16 per cent last year. Less than 2 per cent of all reported disability hate crime results in charge. Its truly devastating impacts were documented in a BBC Panorama documentary in January.

NGOs who work with hate crime victims say that the police response has improved since a decade ago, but is patchy. Some of the most serious crimes, in which people suffer long-term harassment in their own homes or neighbourhoods, or are violently assaulted by strangers, are also the most difficult to investigate. They require police time and resources which too often are not available. 

It cannot be said that police pursuit of those who abuse their own results in crime against the public going unsolved; police work is not a zero-sum game. But hate crime charge sheets and trials entirely composed of police victims is clearly not in the public interest. A balance must be struck that takes account of resource limitations and public perception.

In a statement to court in Armstrong’s case Freel said failing to challenge the teen’s behaviour would reinforce that it was acceptable. But there is scant evidence to support the theory that prosecution of hate crimes against police results in improved community confidence or has a deterrent effect on perpetrators of crimes against the public. 

As research by Professor Paul Iganski of Lancaster University has shown, most hate crimes do not involve targeted campaigns but occur at the heat of the moment during unrelated incidents such as arrests or disputes. Perpetrators are typically drawn from the bottom of society. Lacking formal education and social skills, typically economically deprived and suffering from mental health, drug and alcohol issues they tend to lash out at their victim’s perceived weak spots when thwarted or disturbed. 

Shaina Collyer’s case is a classic example. Drunk, and having been assaulted by her husband, she made “a racist remark” to a police officer who was restraining her during her husband’s arrest. She was convicted of racially aggravated harassment, fined and given a 12-month community order. 

Fining as deterrence does not work on such offenders, who have not made a rational calculation before acting, Iganski points out. The prospect of courts and prisons filling up with many more of the likes of Armstrong, Thomas and Collyer has driven opposition to proposals by the Law Commission to expand the scope of hate crime legislation — including from the police themselves. 

“Investigating gender-based hate crime … cannot be a priority for a service that is over-stretched,” said Sara Thornton, the chair of the National Police Chiefs Council in 2018. “Giving clarity to the public about core policing is a priority.” 

Thornton was responding to a campaign led by Labour MP Stella Creasy for misogyny to be classed as a hate crime. The campaign was successful: last year the Law Commission launched a consultation on whether sex should become a new protected characteristic in hate crime legislation and from autumn police will record cases where victims believe they were targeted for violent crimes due to “hostility based on their sex”.

It’s more likely police will use specified ‘hate speech’ terms as evidence of criminality

The Commission is also considering whether age, philosophical beliefs, sex workers, homeless people and members of alternative subcultures should have a place under the protective umbrella.

Some criminal defence lawyers are not convinced this is a good idea. In a meeting with the Commission to discuss the changes, the Law Society’s criminal law committee said that if too much criminal behaviour could be considered a hate crime it could have a “generally inflationary effect on sentences, without necessarily targeting the worst forms of offending, or the most dangerous perpetrators”. Some feminists worry scant police resources will be diverted from sex crimes and domestic violence to verbal harassment.

At the same time, hate crime legislation, which has always been controversial, is facing a fresh challenge. A spate of arrests in the context of heated debate over transgender rights, the “FairCop” legal challenge to recording of non-criminal hate incidents and fiery debates over a new law in Scotland have underlined tensions between criminal hate speech and legitimate expression. 

Norfolk Police’s hate crime information pack warns that phrases such as “That’s retarded”, “She’s asking for trouble dressed like that”, “You can’t change your sex,” “The Welsh are all sheep shaggers” and “You’re not depressed, you’re just attention seeking”, could be classed as “hate incidents” depending on context. 

Iganski points out that where particular terms are specified as hate speech, it becomes more likely police and prosecutors will use them as evidence of criminality in public order offences. And while, as usual, the poorly educated and socially marginalised are most likely to be penalised for failing to keep up with this fast-moving landscape, the risk to the middle classes has not gone unnoticed.

Giving evidence in court in the FairCop case, Index on Censorship warned of “confusion of the public (and police) around what is, and what is not, illegal speech”, a point illustrated earlier this year by Merseyside Police, who had to correct themselves for advertising that being offensive is an offence.

These cases have planted questions in some minds for the first time about what hate crime legislation is for, what it achieves and who it benefits. Associations with wokeness and virtue-signalling are finding a new, left-leaning audience. The Spectator highlighted plummeting rape convictions in its comment on West Midland Police’s dedicated football hate crime officer. The force has the worst record in the country for solving burglaries, the magazine added, but no dedicated burglary officer.

NGOs say many of the positive impacts of hate crime legislation result from action outside the courts. A police recording of a hate crime can be helpful in convincing housing officers to transfer a vulnerable resident away from their harassment, for example, and provides a basis for community action. But these events take place out of the media and the public eye.

In the absence of clear public benefits and police-driven boundary-creep, there is a clear risk of a withdrawal of public support for hate crime laws. If immigration and Brexit are any guide, the progressive left will handle questions badly: characterising them as driven by right-wing bigotry, and attempting to shut down debate. Police leads will issue tone-deaf statements about their own vulnerability and slowly, political support may ebb away. For the sake of the most marginalised and the true victims of hate crime, that should not be allowed to happen.