Andrew Doyle: There has been a shocking rise in 'non-crime hate incidents'

If I’d have said to you fifteen, even ten years ago, that the police would one day be routinely investigating citizens for ‘non-crime’, would you have laughed or told me I was paranoid?

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In 2019, Harry Miller, an entrepreneur and former constable, was contacted out of the blue by Humberside Police. He was told that he was being investigated because the police had been contacted by a third party who was offended by a poem that he had retweeted. The complainant, described as a ‘victim’ by the investigating officer, deemed the poem to be transphobic. Miller hadn’t written the poem, he had only shared it. And rather than ignore the offensive tweet, this person had thought it would be a sensible use of police time to track down the culprit.

During the course of the conversation the officer explained that, although not illegal, this nevertheless qualified as a ‘non-crime hate incident’. But if this wasn’t a criminal act, why was Miller being contacted at all? When he asked the officer to clarify the purpose of the investigation, he was told: ‘We need to check your thinking’.

Harry Miller eventually decided to bring a court case against the College of Policing, whose Hate Crime Operational Guidance (HCOG), issued in 2014, forms the basis of current practice. As he argued at the High Court, ‘the idea that a law-abiding citizen can have their name recorded against a hate incident on a crime report when there was neither hate nor crime undermines principles of justice, free expression, democracy and common sense’. Ultimately, the police response was judged to be unlawful, although the High Court rejected Miller’s challenge against the lawfulness of the College of Policing guidelines.

When it comes to the growing authoritarianism of our time, I’m often accused of exaggerating the extent of the problem. But consider this: if I’d have said to you fifteen, even ten years ago, that the police would one day be routinely investigating citizens for ‘non-crime’, would you have laughed or told me I was paranoid. Yet between 2014 and 2019, almost 120,000 ‘non-crime hate incidents’ were recorded by police forces in England and Wales. Every year more than 3000 people are arrested for offensive things they say online. This is due to the 2003 Communications Act, which ought to be repealed. But there is no appetite in parliament to oppose this kind of legislation. Why? Because nobody wants to be seen siding with unpleasant people. Some of those offensive comments will be genuinely offensive and horrible, but the price you pay for living in a free society is that sometimes bad people will say bad things. Authoritarianism is not the answer. I’ve said it many times before - the answer to bad speech is more speech, not less.

And of course now that accusations of ‘racism’, ‘homophobia’ and ‘transphobia’ are so promiscuously applied, they’ve come to mean very little. This week David Warwick, a police officer in Sheffield, was investigated for racism after making a joke. Having heard that an Asian man had lived to the age of 105, he quipped, ‘maybe I should start eating curry’. It takes a particularly zealous mindset to assume there is anything racist in that, but he stands to lose his job nonetheless.

And if he doesn’t lose his job, it may be that this is recorded as a ‘non-crime hate incident’ because – as the government’s website on hate crime and the guidelines from the Crown Prosecution Service point out – ‘hate crime’ is defined, rather inelegantly, as ‘any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or a person who is transgender or perceived to be transgender’. Similarly, a ‘hate incident’ is defined as a non-criminal act that is ‘perceived by the victim, or anybody else, to be motivated by hostility or prejudice based on the five protected characteristics’.

So it doesn’t matter if you have no hateful intent, and something you’ve said or done has been misinterpreted, it’s the perception of the ‘victim’ that counts. Of course, the word ‘victim’ should be ‘complainant’, but ever since Keir Starmer’s time as Director of Public Prosecutions, the Crown Prosecution Service seems to have relaxed its commitment to due process.

And it gets worse. Although non-crime hate incidents don’t lead to prosecution, if recorded by police they will show up on an enhanced search by the Disclosure and Barring Service, which could prevent you from getting a job in the future. In fact, the Hate Crime Operational Guidance issued by the College of Policing instructs officers to record hateful incidents ‘irrespective of whether there is any evidence to identify the hate element’. So you say something that is misinterpreted as hateful, the police record it as hateful even there is no evidence to suggest that it was, and suddenly you don’t get the job you wanted. Doesn’t exactly sound fair, does it?