Priti Patel tells College of Policing to stop recording “non-crime hate incidents” as she launches review

Priti Patel is to stop police from recording so-called hate incidents that are not crimes over fears that the policy is blighting employment prospects and curbing free speech. Government sources have confirmed to newspapers today that the Home Secretary has told the College of Policing to drop guidance to forces that those accused of non-criminal incidents should have them recorded on police files. The Home Secretary has asked the College of Policing to launch a review into “non-crime hate incidents”.

In a letter to the college — the body that oversees the training of officers in England and Wales — Patel expressed concern that hate incident records ruin lives when they are disclosed as part of vetting processes such as the Home Office’s disclosure and barring service.

Non-crime hate incidents involve reports of ‘hostility towards religion, race or transgender identity’ that are not classed as a crime. Even if police find no evidence that a crime has been committed, if anyone believes the incident was motivated by hate then officers are obliged to make a record. These records, which stay on the system for six years, can show up on enhanced DBS checks.

The policy – set out in College of Policing guidance late last year – reignited debate over the impact on freedom of speech and the use of police resources. The College of Policing guidance said social media hate crime must be treated as “priority” and handled by senior officers. Officers were told that even where a crime had not been committed, they should consider visiting the accused at work and it should be recorded as a “hate incident”. Recording of hate remains mandatory, with no option for the police to dismiss a claim. Earlier this year it was revealed how police have recorded non-crime hate incidents against more than 120,000 people – 2,000 of which were against children.

“These so called non-crime hate incidents have a chilling effect on free speech and potentially stop people expressing views legally and legitimately. If people are found to have done nothing wrong the police shouldn’t punish them.”

In January Priti Patel appointed former Conservative MP Nick Herbert as the Chair of the College of Policing. Lord Herbert of South Downs is a long time campaigner for lesbian and gay rights in the Conservative Party and was a leading advocate for same sex marriage during David Cameron’s premiership. Lord Herbert was Minister of State for Policing and Criminal Justice across both the Home Office and Ministry of Justice. In his position he introduced Police and Crime Commissioners and the College of Policing.

A Whitehall source said: “These so called non-crime hate incidents have a chilling effect on free speech and potentially stop people expressing views legally and legitimately. If people are found to have done nothing wrong the police shouldn’t punish them.”

Freedom of speech campaigners welcomed the Home Secretary’s message to police and called for the recording of non-crime hate incidents to be scrapped completely.

Sarah Phillimore, a barrister, who is campaigning for the recording of non-crime hate incidents to be dropped welcomed Patel’s letter saying that the Home Secretary “sees which way the wind is blowing”. Phillimore was reported for a non-crime hate incident last year after she made comments on social media that referred to male offenders who claimed to be transgender and who were housed in women’s prisons as “men”.

“I can see no lawful basis for this practice which has led me to be recorded in secret by my own police force twice in the last 12 months,” Phillimore said yesterday. The barrister said that she had been victimised “for doing nothing other than exercising my rights to protected political speech … it is ludicrous to suggest I present any kind of risk to my community”.

Harry Miller, a former police officer who founded the group Fair Cop, which campaigns for reform of the hate incident guidance issued by the college said the government should ditch the recording of non-hate crime incidents completely “as they are fundamentally wrong and remove the presumption of innocence”. Last year a High Court judge rejected Miller’s claim that the recording of a non-crime hate incident relating to him was unlawful. Miller has appealed and the Court of Appeal ruling is expected this year.

“Non-Crime Hate Incidents are an invention of the College of Policing, an unelected body. They have never been approved by Parliament, there is no legal threshold or independent evidentiary test applied to them and members of the public have no right of appeal against them. Indeed, a member of the public can have a Non-Crime Hate Incident recorded against their name without ever being informed of the fact.”

The Free Speech Union also criticised the the policy. Toby Young, General Secretary of the FSU, said: “Non-Crime Hate Incidents are an invention of the College of Policing, an unelected body. They have never been approved by Parliament, there is no legal threshold or independent evidentiary test applied to them and members of the public have no right of appeal against them. Indeed, a member of the public can have a Non-Crime Hate Incident recorded against their name without ever being informed of the fact.”

Last month, Lady Justice Simler raised the point of ‘legitimate public debate’ in cases where feminist academics questioned whether trans women were women. During the Court of Appeal challenge to the lawfulness of police hate crime guidance by Harry Miller, Lady Justice Simler said that there is “legitimate public debate” over the issues and warned that the actions of officers could have a “chilling effect”. She asked whether it was “right” that a feminist academic should have a police report to her name for stating “trans women are not women in the context of that debate”.

Lady Justice Simler asked: “What about an academic or a feminist philosopher who responds to a public consultation expressing concerns about permitting a transsexual woman to use a woman’s refuge and [someone] complains about that, perceiving that to be hostile. Would it be right for that to be declared on an enhanced criminal record check when that academic wants to transfer to become a teacher in a school where there are transgender children?”

Lady Simler suggested that police applying the hate categorisation to a complaint “potentially stigmatises a group of people who are engaged in a public debate about these issues, who are more likely to be complained about by people… who feel offended by this debate.”

Using the example of someone having a recording against them for questioning whether trans women are women, the judge added: “Is it right that it’s disclosed? It is part of a legitimate public debate”. Jason Coppel QC, representing the College of Policing at the Royal Courts of Justice, argued that there is a “detailed balancing analysis” before any incident is listed on an enhanced criminal records check.

But in heated exchanges, Lady Simler suggested that police applying the hate categorisation to a complaint “potentially stigmatises a group of people who are engaged in a public debate about these issues, who are more likely to be complained about by people… who feel offended by this debate.” She added: “Doesn’t it then have a chilling effect on their freedom of expression?” The judges questioned how members of the public might react when – as in the guidance – the person who complains is described as a “victim” and the person complained about is the “suspect”.