The Labour Government continued its extrajudicial onslaught on civil liberties this week, with the Home Secretary Yvette Cooper signalling her intention to ramp up the recording non-crime hate incidents (NCHIs).

According to the Telegraph, which first broke the story, Home Office officials are currently considering a new “zero-tolerance” approach to ensure that specifically antisemitic and Islamophobic ‘hate speech’ that falls short of criminality is recorded by police.

A Home Office source said: “The Home Office has committed to reverse the decision of the previous government to downgrade the monitoring of antisemitic and Islamophobic hate, at a time when rates of those incidents have increased.”

“It is vital,” the source added, “that the police can capture data relating to non-crime hate incidents when it is proportionate and necessary to do so in order to help prevent serious crimes which may later occur.”

For the avoidance of doubt, “non-crime hate incidents” really are as Orwellian as they sound. 

In 2014, the College of Policing came up with the concept of the NCHI in its Hate Crime Operational Guidance (HCOG). As defined in this document, an NCHI is any incident perceived by the victim or any bystanders to be motivated by hostility or prejudice to the victim based on a ‘protected’ characteristic (race or perceived race, religion or perceived religion, and so on).

“Perceived” is the operative word here, since as the guidance goes on to note: “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, according to the College of Policing, the recording threshold for an NCHI is that someone had taken subjective offence to something perfectly lawful that someone else has said or posted online, whether it’s directed at them or not. Talk about a gold-embossed invitation for people to engage in performative offence-taking!

Most people don’t realise just how many NCHIs have been recorded in England and Wales since then. In the five years following the publication of the CoP’s guidance, we estimate more than 250,000 NCHIs have been recorded by police forces in England and Wales. That’s an average of 66 per day. Little wonder, then, that the police don’t have time to send an officer round to your house if you report a burglary. (Between 2015 and 2021, 964,197 domestic burglary investigations ended without a suspect being identified).

It should be stressed that we’re not talking about attempts to stir up hatred on the grounds of race, religion or sexual orientation or people hurling racial abuse at football players on Twitter. 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.

On the face of it, that might sound a little too cavalier, but the litany of evidence is damning.

In June 2022, Wiltshire Police opened a file when an 11-year-old boy was called “shorty” and “leprechaun” in the street by another boy.

Hampshire Police dispatched five officers to arrest army veteran Darren Brady following a complaint that he’d reposted a meme created by Laurence Fox depicting the Pride flag as a swastika in an unsubtle attempt to highlight the authoritarian way in which the LGBTQ+ agenda is sometimes promoted. As one officer told him when he was being handcuffed: “Someone has been caused anxiety based on your social media post, that is why you have been arrested.” 

Last year, the FSU wrote to West Yorkshire Police, urging them to delete the NCHIs from the records of four pupils at a school in Wakefield who were suspended over minor, accidental damage caused to a copy of the Quran. For this, the four students were suspended, and the police were called in. At a meeting with irate “community leaders” at a local Mosque, Chief Inspector Andy Thornton — who was leading the investigation into this dreadful crime — said the students’ treatment of the holy book has been recorded as an NCHI.

Last August, the then Welsh Secretary, David TC Davies, faced a police investigation over an allegedly “racist” campaign leaflet about a proposed new traveller site in his constituency.

After Mr Davies raised his concerns about the inadequacy of a council consultation about the site in a flyer sent to constituents in July, a complaint of discrimination was made. Gwent Police later confirmed it was reviewing the “impact” of the leaflet’s content “on the gypsy and traveller and settled communities in Monmouthshire” on the grounds that it may represent a non-crime hate incident (or NCHI).

And so on and so forth. 

Things took a turn for the better when, in December 2021, former police officer Harry Miller won a landmark legal battle against the police’s recording of NCHIs.

Miller was reported to the police for transphobia in 2019 after tweeting a piece of feminist doggerel that took the Mickey out of trans women. A police officer visited his house, told him to “check his thinking”, and an NCHI was recorded against his name. 

He challenged Humberside Police’s decision to record the incident as a “non-crime hate incident” and took his case against Humberside Police and the College of Policing to the High Court. Harry then took the College of Policing to the Court of Appeal to challenge its Hate Crime Operational Guidance.

In a victory for free speech, the court ruled that the recording of NCHIs on the scale it was taking place was an unlawful interference in freedom of speech and a breach of Article 10 of the ECHR.

Following that victory, the FSU worked with Lord Moylan and other peers to secure an amendment to the Police, Crime, Sentencing and Courts Bill that gave the Home Secretary the option of placing the recording of NCHIs and the retention of the data on a statutory footing, governed by a Code of Practice approved by Parliament instead of the say-so of the College of Policing.

Last March, the then Home Secretary Suella Braverman availed herself of that option, with the Home Office publishing its first ever Code of Practice (“the Code”) on NCHIs. In accordance with Miller v The College of Policing [2021] EWCA Civ 1926, the guidance required police to exercise their common sense and be mindful of people’s right to free speech before recording an NCHI.

As per the Code: “All efforts should be made [by officers] 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, a person has the right to express personally-held views in a lawful manner,” it continued. “This includes the right to engage in legitimate debate on political speech or speech discussing political or social issues where this is likely to be strong differences of opinion.”

According to Yvette Cooper, this has resulted in details of many incidents of antisemitic or Islamophobic “hatred” that fall below this threshold not being recorded. The result, she argues, is that local agencies “have been prevented from monitoring tensions involving Jewish and Muslim communities”.

As reported in The Telegraph, she is now “committed to reversing the Tories’ decision to downgrade the monitoring of non-crime hate incidents, specifically in relation to anti-Semitism and Islamophobia, so they can be logged by police”.

But the underlying premise here simply isn’t true. Ms Braverman’s Code of Practice never prevented the recording of NCHIs. Rather, it just put the recording and retention of NCHIs on a lawful footing.

Under the new statutory guidance, there are two subsets of NCHI record: those that include the personal data of the alleged perpetrator, and those that only include locational data. 

Both subsets require a perception of hostility or prejudice, and that the recording police officer believes this hostility to be intentional.

However, personal data regarding the alleged perpetrator may only be included if the event also presents “a real risk of significant harm to individuals or groups with a particular characteristic(s) and/or a real risk that a future criminal offence may be committed against individuals or groups with a particular characteristic(s)”.

As the Code points out, in many cases where these risks don’t exist, location data “may be all that is required in order to identify patterns of behaviour, identity incident hot spots, or monitor community tensions”.  

So is the Home Office planning to take us back to the bad old days when the subjective perception of “hatred” was enough to have your name and address logged in a police database and which, according to the Court of Appeal, was unlawful?

What we know is that back in March, Ms Cooper, the then Shadow Home Secretary, told the Telegraph that there needed to be a “new and effective hate crime action plan”, which would include “reversing the current presumption, specifically for antisemitic 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”.  

What Ms Cooper appears not to realise is that the reason for the “current presumption” was to bring the recording and retention of NCHIs into line with the law — particularly Article 10 of the ECHR — and if she “reverses” it, the likelihood is she would be encouraging the police to break the law. Quite an unfortunate position for the Home Secretary to find herself in.

One reason why the High Court and the Court of Appeal looked askance at the recording and retention of NCHIs on the scale it was happening is because they can show up on enhanced criminal records checks and stop people getting jobs.

Under the Police Act 2014, police are required to release any information “the chief officer reasonably believes to be relevant for the purpose” of a background check. In other words, police may release NCHI logs to prospective employers performing background checks on prospective employees. How often police actually relay this information is unclear, but the threat is chilling enough.

As Lord Macdonald QC, the former Director of Public Prosecutions put it 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.”

If the Labour Government wants more people to be punished for being antisemitic or Islamophobic it should bring forward a bill to achieve that and that can then be debated in parliament.

Trying to go about this in an extra-judicial way is underhand and undemocratic. 

It’s as if this Government really, really hates free speech, but doesn’t want to legislate against it

Sadly, it fits a pattern — witness, for instance, the Government’s arcane attempt to revoke the commencement regulations for the Higher Education (Freedom of Speech) Act instead of simply repealing it via an Act of parliament, a decision the FSU is legally challenging.

It’s as if this Government really, really hates free speech, but doesn’t want to legislate against it because it knows that would be unpopular so it’s trying to erode it in sneaky ways behind the scenes. We mustn’t let it get away with this and if the Home Secretary really does encourage the police to start acting unlawfully again, the Free Speech Union will mount another legal challenge.