Minister Tells Parliament Non-Crime Hate Incidents Should Not ‘Inhibit Lawful Debate’

Labour Party supports revised code amid concerns over freedom of speech

A woman dresses up in a costume with a sign saying "free speech" as she prepares to take part in a protest in Westminster, London, on Feb. 11, 2023. (Dan Kitwood/Getty Images)

A government minister has told a debate in the House of Lords the controversial policy of recording non-crime hate incidents (NCHIs) should not be used to inhibit free speech.

Lord Murray of Blidworth, a parliamentary under-secretary of state at the Home Office, told a debate on Wednesday, “Non-crime hate incidents have attracted a significant amount of controversy, particularly in this place, due to concerns relating to free speech.”

Last month it was reported Home Secretary Suella Braverman laid down new guidelines ordering the police to only record non-crime hate incidents when absolutely necessary.

Murray told the Lords the government understood “the strength of feeling” among the general public about the issue which is why the new code of practice on the recording and retention of data on NCHIs had been published on March 13.

Murray explained: “The collection of non-crime hate incident information is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence.”

He said: “This information pertains to incidents which are not crimes and provides the police with the means to understand tensions within communities or cases involving particular individuals before they can escalate into serious harm.”

“In this respect, this data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes or harms which may later occur,” Murray added.

But he said: “This government are absolutely clear that vulnerable individuals and communities must continue to be protected. However, non-crime hate incidents must never be used to inhibit lawful debate, and we must also be very careful about what information is kept on an individual’s record.”

“This balance has unfortunately not always been struck, and this issue is precisely what the code is designed to address,” Murray added.

Lord Strathcarron, a Conservative peer, said, “The need for reform of non-crime hate incidents is clear on many levels, one of which is that an estimated quarter of a million of these have been recorded, which works out at about 70 a day.”

Police Monitoring ‘Thoughts and Opinions’

“One can only imagine the amount of non-crime police time this has used up. It is worth remembering that nothing illegal has been done during all this police time. The police have taken it upon themselves to monitor our thoughts and opinions, and if they do not like what they find they record against us,” Strathcarron added.

He said this was not a “trivial matter” as the data recorded would show up forever in checks made by the Disclosure and Barring Service (DBS).

Strathcarron then referred to the recent incident when four schoolboys in Wakefield were arrested after a copy of the Quran was damaged during an incident.

He said the incident would be recorded as an NCHI, “even though the head teacher found that there was no evidence of any malicious intent.”

Strathcarron added: “The publicity around this case also brought to light the fact that NCHIs, unlike actual crimes, will not automatically be deleted from the young boys’ records when they reach the age of 18.”

“Not content with issuing non-crime hate incidents against the schoolboys, we then saw the chief constable appearing to promote the idea of blasphemy law and the public humiliation of the autistic boy’s mother,” he added.

Strathcarron said, “This is where we find ourselves when we start to police hurt feelings and not crime.”

The new code has been created following the ruling of the Court of Appeal in 2021 in Miller v the College of Policing (pdf).

The case was brought by Harry Miller, an officer with Humberside Police who was contacted by the College of Policing at work for reposting a limerick that was critical of transgender people.

Former police officer Harry Miller speaks to the media outside the Royal Courts of Justice in London on Dec. 20, 2021. (Dominic Lipinski/PA)

No crime had been committed, but Humberside Police still recorded Miller’s post as an NCHI.

Ruling in Miller’s favour, Mr. Justice Knowles compared the police’s action to the Cheka, the Gestapo, and the Stasi, and reminded the court, “We have never lived in an Orwellian society.”

Lord Ponsonby of Shulbrede, a Labour peer, said: “The court found that the recording of non-crime hate incidents was lawful, but must be subject to more robust safeguards to ensure a better balance between responding to hate incidents and protecting freedom of speech. The Labour Party supports this revised code.”

Beware of ‘Common Sense’

He added: “The code puts a lot of weight on using common sense, but I do not believe we should rely on that phrase too much to ensure its fair and uniform application at an operational level. What is common sense to an experienced officer may not be to a new recruit having to apply these rules for the first time.”

Baroness Brinton, a Liberal Democrat peer, said, “I should declare that, as a disabled person who has used a wheelchair for a decade, I have been on the receiving end of hate crimes, non-crime hate incidents and, I am sorry to say, threatening behaviour and even assault.”

She said had been regularly abused while travelling on trains: “Comments such as ‘People like you shouldn’t be allowed on the train during rush hour’ or ‘Why are people like you taking up space where I want to sit?’ are regular. They can and do also use abusive language, right in your face—‘cripple,’ ’retard,' or even worse.”

Brinton said, “It may be a generic statement and fall under the home secretary’s definition of free speech, but the delivery of it leaves the recipient in no doubt that it was intended to be personal.”

“The ability to record these incidents as NCHIs is therefore important, because it means that a pattern of behaviour can be tracked and followed, as needed. My concern is that police officers, always under pressure, might ever look only at the one incident in front of them, then, if they decide not to record it, there is no trail of consistent abusive behaviour,” she concluded.