In recent years, the policing policy of 'non-crime hate incidents' ('NCHIs') has become a topic of controversy in the UK. Debate is divided between those alleging that the classification of events as NCHIs is a Kafkaesque threat to our freedom of speech by way of the investigation and recording of even trivial 'non-crime' incidents, and those who consider that NCHIs serve as a useful early warning system for problematic patterns of behaviour used to protect the public from potential future harm.
How such incidents are dealt with is a delicate balancing act between protecting individuals from hate and safeguarding our fundamental rights, and NCHIs therefore pose unique challenges for our Government, police, lawyers, and wider society.
What are 'non-crime hate incidents'?
NCHIs are incidents involving an act by a person ('the subject') which is perceived by another person to be motivated wholly or partly by hostility or prejudice towards a person with a particular characteristic.
The characteristics covered by NCHIs have now expanded to include all protected characteristics – namely race, religion, disability, sexual orientation and transgender identity. A person affected by an NCHI may be the individual who has experienced the incident and reported it to the police, or it could be any other person with first-hand knowledge of the incident (i.e. a witness to the (alleged) incident). Additionally, whilst "hostility” and “prejudice” have no specific legal definition, the Crown Prosecution Service state that, “we use the everyday understanding of the word [hostility] which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.”
NCHIs differ from hate crimes as, importantly, such an incident does not meet the threshold for criminal charges – therefore, no crime has been committed.
The debate: Freedom of speech vs. protection from hate
Those in support of NCHI investigations argue that the recording of such data is vital for helping the police identify early warning signs of behaviour that could later escalate into hate crimes or other serious crimes. Recording NCHIs can also assist build trust in the police by showing that all forms of hate will be taken seriously. Data collection in this way can also be a useful tool for informing policy, policing strategy, providing support for victims, and engaging with individuals early in the hopes of preventing/reducing future NCHIs and crime levels.
On the other hand, critics argue that the more likely consequence of this practice is an infringement upon freedom of speech, potentially leading to a limiting effect on open public discourse. Individuals may become hesitant to speak honestly and freely on certain topics for fear of being reported for a hate incident and being recorded by the police. There are also deep concerns for the potential for misuse of NCHI reporting, where personal grievances could be framed as hate incidents, leading to unnecessary police involvement. In the time of already overstretched and under-resourced police forces, the necessity of NCHI classifications is brought into question when considering if their efforts could be better spent addressing actual crimes.
Recent controversy and the lasting consequences of NCHIs
There are concerns that the unclear nature of the guidelines concerning NCHIs has led to widespread use and overreach, and that the subjective nature of what may or may not constitute a hate incident has resulted in inconsistencies between police forces and a sense of uncertainty.
Of particular concern is the potential misuse of NCHI policy by the police, specifically following the His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) report into 'An inspection into activism and impartiality in policing' published in September 2024. The report found that NCHI processes were not subject to effective scrutiny, leading to the unnecessary deployment of resources and excessive NCHI recording.
Journalist Allison Pearson's social media accounts made the headlines last week, following a door stop visit by Essex Police. According to Pearson, the police told her she was under investigation for an NCHI following a tweet she published in 2023. The force denied informing Pearson the investigation was for an NCHI; however, it has fanned the flames regarding the effective use of police time and fears about the police's potential newfound role as the "thought police" against the expression of opinion in the social media era, with particular concern around the targeting of journalists. Among the thousands of others investigated for NCHIs, it is also understood that in recent years several children have been investigated and recorded as having committed NCHIs, reportedly for such incidents that amount to classroom insults and name-calling.
In terms of the consequences of NCHIs, it will be of significant importance to those involved how the incident in question will be recorded on police databases. It is important to note that all incidents reported to the police will be registered in some way by the police on their databases. However, if an NCHI is deemed to have occurred, there are two ways in which data concerning the incident may be recorded by the police:
The NCHI record will identify the subject and their personal data if the event 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).
The record will not identify the subject if the incident does not pass the above test. However, if all the other criteria required to record an NCHI are met, an NCHI without personal data may be recorded instead (i.e. an anonymised record recording the locational data of the incident and/or a general description of the circumstances of the incident).
Issues arise where an NCHI record identifies the personal data of an individual being complained about. Personal data in an NCHI record can be retained on police databases for a maximum of six years before being reviewed. As such, it is possible for the record to be identified on an enhanced criminal record certificate issued by the Disclosure and Barring Service ('DBS').
Therefore, an incident identified as not meeting the criminal threshold has the potential to affect future employment prospects for those seeking jobs in industries such as teaching, childcare and social work, even years after the fact. This is particularly worrying in circumstances where the initial report may have been motivated by spite or through a misunderstanding. Police investigations of children hurling insults create their own lasting issues but otherwise suggest that the police are confused by the Government's ill-defined guidance on NCHIs and are being over-zealous in recording minor incidents.
Conclusions: Finding a balance
The debate over NCHIs underscores the need for a balance between protecting the public from hate incidents whilst defending our fundamental rights such as freedom of speech. As our society evolves, so too must the policies that govern the response to hate and prejudice.
Amidst pressure from all corners to readdress the balance between free speech and protecting the public, Downing Street has now announced that the Home Office is to review the recording of NCHIs. In the current climate, it can be expected that there will be a rowing back of NCHI policy by tightening guidance to shift the focus of the police back onto more serious crimes. This way, schools and workplaces will be left to deal with such incidents in private and as appropriate to deliver a proportionate response, leaving them as wholly civil matters rather than events dealt with by the police. The review should also aim to make the legal framework surrounding NCHIs clearer to prevent overreach by the police and a consistent approach across forces.
There are also steps that an individual can take if they find themselves involved in an NCHI. It is possible for the reported individual to submit a Right of Access Request to confirm whether the police have retained their personal data in an NCHI record. The relevant Police force will be required to respond within one month of receipt of the request. However, in our experience, the police can sometimes fail to comply with the time limit for responding to such requests in breach of GDPR rights. Depending on the response from the police, it may be possible to challenge the data held in an NCHI record.
We would recommend seeking legal advice in relation to any challenge to police data. If you have been accused of being responsible for a 'non-crime hate incident', please contact a member of our Criminal Defence team to discuss the matter in confidence.