We need to banish 'non-crime hate incidents' to the dustbin of history

As the case of Allison Pearson has brought to the fore, NCHIs are illiberal, censorious and authoritarian.

While I was attending the huge farmers’ protest on Tuesday, I overheard someone say (referring to a sea of t-shirts reading ‘Keir Starmer – the family farmer harmer’): ‘Maybe we’ll get done for a non-crime incident for wearing these.’ It seemed like proof that the row over police turning up at the door of award-winning journalist Allison Pearson, threatening to log a year-old post on X as a non-crime hate incident (NCHI), has cut through with the public. We’re all hate criminals now.

The subsequent wider public debate about the disproportionate policing of free speech online even forced a sensible response from Keir Starmer. The prime minister rightly said that police forces should prioritise tackling violent crime and burglaries instead of questioning people over social-media posts.

But before we celebrate the return of common sense, we should note that his own home secretary, Yvette Cooper, only a few weeks ago declared that she intends to ramp up the recording of NCHIs. Meanwhile The Times has shockingly revealed that NCHIs have even been recorded against primary-school children. Mo Lovatt explains why all this matters in this GB News segment:

The story of NCHIs is a salutary tale about how the most regressive policies develop a life of their own once they become institutionalised. In 2014, the unaccountable College of Policing quango announced NCHIs in its Hate Crime Operational Guidance. What started as an allegedly benign tracking exercise soon became a sinister monitoring, policing and recording of individuals’ free-speech misdemeanours. The police started logging names in their system not for criminal speech (the clue is in the title ‘non-crime hate incidents’) but for speech that someone, somewhere, took offence at. The guidance notes: ‘The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required.’

Guess what? This became a vehicle for grievance-snitching. Malicious allegations and thin-skinned offence-taking, and the numbers of NCHIs being doled out, spiralled - and with serious consequences. NCHIs can appear on advanced background checks, potentially damaging job prospects. As Lord Macdonald KC, the former director of public prosecutions, has explained: ‘NCHIs have consequences. They are not anonymised. They sit forever against the names of the alleged perpetrators without any real investigation or right of appeal… We need hardly imagine what an HR manager would make of a job applicant with a police history of hate.’

Eventually, about four years ago, politicians and the courts tried to rein in and curtail such obviously extra-judicial, anti-democratic policing powers. And what’s infuriating is that many of us hoped we’d seen the back of this illiberal, censorious and authoritarian policing. It’s three years ago that I and other peers took up the cause, speaking out in the House of Lords to draw attention to the problem via an amendment to the Police, Crime, Sentencing and Courts Bill.

Parliamentarians then thought the issue was resolved in December 2021, when former police officer Harry Miller won a landmark legal battle against the police’s recording of NCHIs and then was victorious again when he took the College of Policing to the Court of Appeal to challenge its Hate Crime Operational Guidance. The court ruled that the recording of NCHIs on the scale it was taking place was an unlawful interference in freedom of speech and a breach of Article 10 of the ECHR.

And yet here we are, with an estimated 250,000 UK citizens with NCHI records on police files according to the Free Speech Union (FSU).  Like the mythical Hydra, this monster has multiple heads – cut one off and another pops up. To get a sense of what we are up against, do check out this handy FSU thread on X of the 'most egregious non-crime hate incident (NCHI) reports since 2014'.

Astonishingly, the current director of public prosecutions, Stephen Parkinson, has admitted to The Times that when he saw the furore over NCHIs last week: ‘I had to look up what on earth the term meant - I was puzzled by it.’ He added that ‘even within the police service there has been some surprise at the level of non-crime hate incidents that have been investigated’. It is highly alarming that even the country’s chief prosecutor is in the dark about the use of NCHIs.

The ease with which the police upgraded their NCHI threat to Allison Pearson to a possible criminal charge for a public-order offence shows the mission creep and slippery slope way that such policies undermine free expression in general. Arguably there is a broader problem of hate speech laws, as articulated eloquently by Joan Smith here. All hate-speech legislation, as well the ‘grossly offensive’ speech clauses from Section 1 of the Malicious Communications Act 1988, Section 127 of the Communications Act 2003 and the clauses from the Public Order Act 1986 covering ‘stirring up hatred’ with regard to speech/expression all create a labyrinth of censorship trip wires.

In a useful thread on X, Professor Abhishek Saha explains these broader threats and calls for us to clearly hold to the distinction between action and speech. I especially like his point: ‘Speech is not violence; free speech is a cure for violence. The principle of free speech allows us to engage with our opponents with words rather than weapons.’

The only positive outcome of what Allison Pearson has described as her ‘week from hell’ is that now the public knows about the draconian nature of non-crime hate incidents and they don’t like what they see. What’s more, her disgraceful treatment – not just by the police, but by too many of her fellow hacks, who have expressed glee that a columnist they disagree with politically is subject to criminal punishment, has ignited a useful debate in society about why free speech is crucial, and why hate speech as a concept can be chilling.

To finish, take a look/listen to this panel discussion from last year’s Battle of Ideas festival in Buxton, titled Politics of hate: is everyone a bigot but me, which is an example of the sort of public conversation we need to keep on having until, finally, public opinion can cut off all those Hydra’s heads off and kill the monster.

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