The idea behind publicly-elected Police and Crime Commissioners, as set out by the progressive Tory think tank Policy Exchange, which claims to have invented them, was to make the police more accountable to the public. Their formal role is to set police ‘priorities’ and direct budgets. It was hoped by their creators that the electoral process – the requirement to listen to the public and craft an election-winning focus – would ensure that local policing better reflects local priorities.

PCCs are paid five figure salaries, indicating that the role is intended to be full-time. When the first PCC was elected in 2012 it was revealed that his salary would be £70,000 per annum. That first publicly elected PCC was Wiltshire’s Angus Macpherson. He’s a Conservative and still in place today: Wiltshire is not an advertisement yet for a hugely competitive electoral area. Mr Macpherson got some attention for being first, and now his force is getting attention again – for rather un-conservative practices which seem unlikely to be aligned with public priorities.

Sarah Phillimore, a barrister, is part of the WeAreFairCop group, formed to support ex-police officer, Harry Miller, when he was visited by local police and told to ‘check his thinking’. He was also threatened with the possibility of criminal proceedings. Miller had tweeted about the Government consultation on the Gender Recognition Act. Although Miller had committed no crime, his tweets were recorded, kept on the police record, and made liable for disclosure via a criminal records (DBS) check. When Miller asked for the record of his non-crime to be deleted, Humberside Police refused.

Supported by WeAreFairCop, Miller applied for judicial review. He won a partial victory. The actions of Humberside Police in interacting with Miller were criticised in the strongest terms by the Judge as being akin to the Cheka, the Stasi, and the Gestapo. The Judge held that Miller’s contribution to the debate around gender identity was political speech given enhanced protection under Article 10 of the ECHR. He said that the tweets weren’t ‘even in the foothills of harassment’.

However, the judge did not accept what was arguably the more important part of Miller’s case which related to the legality of the police maintaining a record of his tweets. The College of Policing’s ‘Hate Crime Operational Guidance’ requires police to record ‘hate incidents’ whether or not they are criminal. The guidance sets a very low bar for what constitutes a hate incident. Covering five protected characteristics of race, religion, sexual orientation, transgender status, or disability, a hate incident is ‘any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person’ who has,or is perceived to have, one of the characteristics.

Back to Sarah Phillimore and the Wiltshire Police. A few weeks ago, Phillimore asked her local police whether they held any information about her. She was in for a shock. Her police record described her as ‘A barrister who has been posting hate about Jewish and transgender people‘. She discovered that the Wiltshire police were holding on file 12 pages of screenshots of her tweets. Regarding her comments about Jewish persons, the Wiltshire police even noted that there is nothing ‘overtly offensive’. Another of the tweets on file reads ‘The Equality Act does protect sex as a characteristic. But it isn’t one of the police’s bonkers protected strands for the purposes of hate crime / non crime as they know it would overwhelm them in about five minutes.’
When Phillimore asked the Wiltshire police to delete the record, they wouldn’t. They will hold it against her name for 6 years. They will continue to describe her as a ‘barrister who has been posting hate about Jewish and transgender people‘. If Phillimore had applied for a DBS check, unaware of her police record, would this official police description of her have been revealed?

I’m pleased to say that Phillimore is considering applying for a Judicial Review. I agree with her view that, ‘what the police are doing is allowing themselves to become accomplices to those who themselves wish to harass others — anyone with a grudge can make repeated complaints of “hate”.’

Recently I wrote to Angus Macpherson’s office questioning his force’s priorities. As it turns out, this sheds light on Phillimore’s case. As part of Pride month, Wiltshire Police put out a video suggesting that ‘LGBTQ+’ people were in more danger from ‘hate crime’ at home than elsewhere. This is a strong and debateable contention about a crime, and a distinctly odd one for the people who investigate crimes to be proclaiming as fact. The Wiltshire Police say in their video, ‘with people spending a lot more time at home at the moment there is an increased risk of potential hate crimes. You may be living with a family which are not as supportive… And there is also the added risk, as Pride and things move online, that there could be online hate crime’.

I asked the Wiltshire PCC to provide evidence to back up the comment relating to incidents in the home from non-supportive families. I’m sorry to report that Macpherson responded that his force had not said what it had said: ‘The officers were not saying that there are more LGBTQ+ incidents or crimes taking place in the home, rather that during this period of lockdown we expect to see more online hate incidents or crimes generally, simply by virtue of the fact that we are spending much more time on our computers’.

It should be seen for the outrageous, scandalous waste of police resources that it is that real crimes are going unattended in order that the police can lovingly record mean tweets

The same video also provided evidence about Wiltshire Police’s approach to ‘hate incidents’. In it, the police say ‘please do not suffer in silence. If you experience any kind of hate crime or incident then please call us on 101 or report it online’. So here we have the Wiltshire police actively urging the public to report non-crimes to the police. No wonder recorded ‘hate incidents’ have gone through the roof. It’s simply not the case that Wiltshire police sit reluctantly on a growing ‘hate incident’ file, they actively solicit accusations of hate. Even the Equality and Human Rights Commission is clear in their guidance that it is ‘hate crime’ that should be reported. It should be seen for the outrageous, scandalous waste of police resources that it is that real crimes are going unattended in order that the police can lovingly record mean tweets. This should be a crude right wing joke about the sort of thing “PC Plod” is getting up to. In fact, it’s the regime a Tory PCC is presiding over.

In his letter to me, Macpherson also wrote ‘We know under reporting of hate incidents and hate crimes exists’. How can ‘under reporting’ of hate incidents exist? What would be the right level of reporting of hate incidents? How does he know this? Would he care to set out his doubtless flawlessly scientific methodology out in public so that the people paying for his services can assess how he’s carrying them out?

The concept of ‘hate crime’ was originally intended to recognise that an actual crime should sometimes be regarded as more serious if overlaid with hostility to a person or group based on specific characteristics. The Law Commission says, ‘Hate crimes are acts of violence or hostility directed at people because of who they are’. It is the concept of hate incidents that has now morphed out of all control. Surely they should be only that set of incidents that people have reported to the police as actual crimes – but which do not quite make the cut? A small number of boundary cases in other words, openly admitted to being such by the police noting them down. Clearly we have moved very far from that. We now have police forces actively encouraging people to report not crimes, but ‘incidents’. We now have police forces holding records against people who have committed not crimes, and barely even ‘incidents’. In the words of the Wiltshire police, things that are not even ‘overtly offensive’ are now on the police record you almost certainly don’t know you have. But these formal police records accuse people of ‘hate’.

I hope Sarah Phillimore will have her day in court. The College of Policing’s Hate Crime Operational Guidance needs to go. But meanwhile PCCs and police forces need to be mindful of the judge’s words in the Miller case. When someone’s words or tweets are not ‘even in the foothills’ of a crime, more care should be taken in how they are dealt with. And why would you actively solicit their reporting? I would expect to see Conservative PCCs taking a lead in reining in local police over-reach on hate incidents – but also vocally challenging the Guidance. If they are not minded to do so, they should step aside for others who will.