‘Non Crime Hate Incidents’ [NCHI] were created following the Macpherson Report of 1999. This concluded that the investigation of the murder of Stephen Lawrence in 1993 had been compromised by systemic police racism. The rationale behind NCHIs was to focus on the perception of the alleged victim that they had been subject to ‘hate’ but where the criminal threshold had not been crossed. This would provide useful intelligence about behaviour that the potential to escalate. The ‘monitored strands’ for the purposes of NCHIs are race, religion, disability, sexual orientation and transgender identity.
In 2019 Harry Miller, was visited by the police to ‘check his thinking,’ after social media posting. He challenged the lawfulness of the 2014 Hate Crimes Operational Guidance (HCOG) produced by the College of Policing. Part 6.3 set out the requirement for ‘perception based’ recording of ‘hate’ regardless of any supporting evidence. ‘Victims’ should not be challenged by the police as this could lead to ‘secondary victimisation’. Those recorded of ‘hate’ were not informed, it was not clear how long a NCHI would remain on a police data base, or to whom it would be disclosed.
Miller failed at first instance but succeeded in the Court of Appeal in 2021 which found NCHIs to be an unlawful breach of article 10 ECHR which protects freedom of speech. The College of Policing had failed to consider if less intrusive means could have met legitimate aims to gather useful intelligence. The Guidance was noted to be “extraordinarily broad”, the threshold for “hostility” is low, and nothing is grounded in “an objective assessment of the evidence”. As the Court of Appeal set out in para 112 of its judgment, what the Guidance actually sanctions is the recording of “non-crime, non-hate incidents”.
The judgment was followed by a statutory code of practice published in June 2023, Non-crime hate incidents: code of practice – GOV.UK (www.gov.uk) making it clear that the police should not simply accept the assertions of the alleged victim and should pay proper regard to article 10 ECHR.
Despite this clear response from the Court of Appeal and Parliament, many remained concerned that the police continued to misuse NCHIs, alongside broader concerns about influence from political ideology. In September 2023 former Home Secretary Suella Braverman commissioned a report from HM Inspectorate of Constabulary and Fire and Rescue Services HMICFRS to examine police involvement in politically contested matters. The report was published in September 2024.
The inspection took place between October and December 2023, with fieldwork in 12 police forces in England and Wales. The inspectors reviewed more than 4,000 documents and examined records of 120 NCHIs. It surveyed the police and the public, received over 4,000 responses and analysed more than 857,000 police social media posts. They noted this was “one of the most challenging inspections we have carried out,” requiring consideration of complex legislation and regulations.
The report confirmed a fundamental fear — that the oath the police take on joining the service to act impartially is not properly understood or implemented. There needs to be an urgent review of the training offered by the College of Policing, as there is no independent process to check the quality and consistency of the training they have offered since 2018.
With regard to NCHIs, the investigators found that forces record and attend more NCHIs than needed and are not consistently following guidance.
The report noted:
Some forces had introduced, or were introducing, structured processes for recording NCHIs. Others had amended force policies but hadn’t fully implemented the changes. In three forces there had been no noticeable response, with one force simply circulating the College Learn online training material to officers and staff, with little, if any, monitoring of completion rates….Policies in five forces pre-dated the Code and NCHI APP. This meant the direction and guidance provided to officers and staff in these forces weren’t up to date. And in the remaining forces, policies weren’t always clear. For example, some policies didn’t clearly define the specific responsibilities of officers and staff and the processes for recording, assessing and responding to NCHIs. This meant that some working practices didn’t align with policies, leading to inconsistencies in how forces dealt with NCHIs.
It recommended by March 2025 that forces should update their policies and review the governance arrangements for non-crime hate incidents.
It is disappointing to note 3 years after the Court of Appeal judgment in Miller, that NCHIs remain a problem for the police. This not merely degrades their operational effectiveness but also public trust and confidence. No one is made any safer by an indiscriminate and subjective approach to ‘hate’ and hence disproportionate and unlawful breaches of a fundamental human right; to speak freely.
The development of Non Crime Hate Incidents
