December 22, 2021 - 7:00am
“Do we know when this bollocks first appeared?” enquired Harry Miller of the ‘transwomen are women’ credo. For this and a handful of similarly unfashionable trans-related tweets the police turned up at his workplace, exaggerated the complaints, threatened criminal sanction if things ‘escalated’, and — in accordance with strict policy — made a permanent record of a “non-crime hate incident”.
At the High Court last year he won on the behaviour of the hapless Community Cohesion Officer sent to bother him. And yesterday he won at the Court of Appeal, on his other, more important, complaint: the unlawfulness of the hate-crime recording policy itself.
The victory was hailed in a Spectator blog as “an enormous blow in favour of the freedom of ordinary people to say what they want”; and in these pages, the era of the non-crime hate incident was said to be ending. I am not so sure.
The policy — the “Hate Crime Operational Guidance” — was found to be unlawful only because in most cases it allows for no discretion whatsoever not to record an event as a hate incident, provided somebody (anybody!) makes that allegation, no matter how absurd or irrational the claim.
The court did not specify precisely what amendments would make the Guidance lawful, but implied that a limited, narrow discretion might suffice (see the last two paragraphs of the judgment). There was already a vague exception for allegations against, er, celebrities – where it recommends officers “seek support from senior colleagues” rather than record a hate incident automatically – and this was pointed to as an example of the kind of discretion that could be applied more widely.
Worse, the court explicitly upheld the principle of perception-based recording, whereby if a complainant perceives “hate” then there is “hate”. There was no fundamental criticism of how this relativist approach bleeds into the system of enhanced criminal record checks. Yes, they criticised the High Court’s surprising finding that the recording policy was so separate from the disclosure policy that it involved no interference with Article 10 Freedom of Expression, but they decided that any such interference would be proportionate and lawful as long a bit of discretion was introduced.
As for “hate”, it is defined to include “hostility”, and hostility to include “unfriendliness”. Noted, by the Court of Appeal, but not criticised (paragraph 111).
So, most likely the police will formally add a general discretion not to record obviously irrational allegations as non-crime hate incidents. But they will continue to record thousands of false allegations on the scantest of evidence. And many entirely innocent people will continue to be unjustly disbarred from jobs that require enhanced police checks.
Perception-based recording — of racism — was introduced on the recommendation of the Macpherson Report of 1999. It seemed like a good way of collecting important data unsullied by racist attitudes in the police. But unfairness arises as soon as this mechanism is applied more widely and starts to have real-world consequences for individuals.
The long-standing protections of the criminal law – “beyond reasonable doubt” for one – provide little comfort if our lives can be ruined on a lower threshold – lower even than the balance of probabilities. And it is not only in enhanced police checks where claimed perceptions can reign supreme: your employment contract and associated policies may well contain something similar.
A win’s a win, and well done to Harry Miller. But there remains, as they say, much work to be done.
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SubscribeAnyone caught up in this nonsense should sue the police for defamation.
I agree with your sentiment in general. Sadly, having read the judgement, and given the nature of defamation laws, I doubt that this could work in reality.
This is a much better article on this Court of Appeal judgement than Monday’s article by Dan Hitchens. It is a victory for Harry himself but almost certainly of limited value once the Police College have revised their Guidelines.
The exception for celebrities is clearly disgraceful as a derogation from the theory that we are all equal in the sight of the law, even though we know this doesn’t necessarily apply in practice. A bit like covid restrictions seem to apply to the population except if you are connected to the government.
The case that should have been supported would have been a complaint against a teacher of CRT that certainly involves “hate” against whites that I find offensive. The Court of Appeal would have bent over backwards to enable fashionable forms of hate to be peddled without hinderance.
The whole concept of recording non-crime hate incidents that depend on a pretty unquestionable perception of hate by any third party that can subsequently be disclosed in an enhanced disclosure document is completely wrong, but can only be removed by legislation that this Conservative government is too pusillanimous or woke to bring in.
The judgment (which I have read in full) is a step in the right direction but too long and insufficiently robust. The point at issue has been over-intellectualised and the shadow of the Macpherson report still looms too large. The late Lord Denning would have made shorter work of this case.
But there is a dilemma here. Ninety-five per cent of those who complain about ‘non-crime hate incidents’ should probably be told to go and boil their heads. Five per cent may be on to something important.
I agree with you that the judgment is far from the knock-out blow that many believe it to be and many (myself included) would hope for.
However, if I could just comment on your last sentence: ‘Five per cent [of complainants] may be on to something important.’
If they are in fact on to something important, then isn’t that likely to be a substantive offence, rather than this ridiculous and sinister concept of a ‘non-crime hate incident’?
In other words, the police should concentrate their actions on genuine criminal offences.
Nothing wrong with the police recording genuine manifestations of hate to identify potential criminals but not that such internal police records should be available to the public. I don’t for example want hate filled individuals given gun licenses and unless the police have records of hate they don’t have a means of ensuring haters don’t get guns.
I find it hard to agree with your reasoning.
How many members of the public in this country have lawful access (that is with police vetting) to firearms? What is the incidence in this country of violence using lawfully held firearms? We’re not living in the USA. Gun crime is pretty much a non-problem for us in Britain.
More significant to my mind, though, is that it is not the business of the police to pay any attention at all to hate. It’s an emotion. It shouldn’t be any part of the state’s business, let alone law enforcement activity, to monitor what’s going on inside people.
Still less should there be such a thing as a ‘non-crime hate incident’ … which can be founded on nothing but a report of the feelings of A (anonymity protected by law) about their perception of the feelings of B … which leads to B getting the equivalent of a criminal record. Without an investigation. Without a trial. Without a conviction. Without B even being told.
How can this possibly be right?
Couldn’t agree more. If I want to hate someone it’s nothing to do with anyone else. We have good laws against inciting and committing violence, use them and stay out of peoples heads!!
First clear-headed analysis of the limited effect of the CA judgment I have read (I am a barrister withover 40 years of private practice behind me)
I fear that the author is correct but there is a glimmer of hope in that the Home Secretary has apparently said that she is going to introduce a Code of Practice governing the matter. Let’s hope that it is more robust and effective than her intentions in relation to boats in the Channel.
One can hope.
In relation to the unrevised Guidance;
72…. The Guidance by contrast, requires things like speech to be categorised and recorded as a ‘hate incident’ when no objective incident has necessarily occurred, apart from the speech itself. The contention made on behalf of the College therefore, that the Guidance does not require recording, and that recording happens separately is unsustainable in the circumstances.
73.If that is right, the question is whether the mere act of categorising and recording speech as hate speech, interferes with Article 10 rights. […] In short, the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate.
In paragraph 117 it says The position in the round can be encapsulated as follows. … In particular, there is nothing in the Guidance about excluding irrational complaints, including those where there is no evidence of hostility, and little, if anything to address the chilling effect which this may have on the legitimate exercise of freedom to expression. Even so, where the perception of the complainant is that speech is motivated by hostility towards one of the protected strands, the Guidance says it must be categorised as a non-crime hate incident; and the language used (of a non-crime hate incident and a victim) is capable of unfairly stigmatising those against whom such a complaint is made. There is no provision for proportionality to be applied to recording. And the Guidance says nothing about the language to be used in any such record, or whether someone should be notified that a record, flagged as a hate incident has been made of a complaint against them, leaving such issues to individual forces to decide.
And to the Revised Guidance;
121.Under the heading “Responding to hate”, the Revised Guidance says: “Note: The terms ‘victim’ and ‘suspect’ are used throughout this Authorised Professional Practice (APP) to refer to the person reporting an allegation and to the alleged perpetrator. These terms do not mean that a crime has been reported or that an investigation into a crime is taking place.”…
122.These revisions (with their greater emphasis on proportionality) appear to be designed to meet the criticisms made of the police conduct in this case, and it could be said that at the very least they demonstrate there was scope for less intrusive measures. But in my opinion they do not go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally. The position is therefore that less intrusive measures could be used to achieve the legitimate aims of such recording, without unacceptably compromising the achievement of those aims.
I don’t know if my interpretation is correct, but does there seems to be an emphasis, amongst others, as to the speech that is used in the recording of incidences that unfairly stigmatises the person against whom a complaint is made?
Indeed the mere labelling of an incident as ‘hate’ appears to be enough to be prejudicial to the person against whom a complaint is made? So, as it says in 121, the Revised Guidance has These terms do not mean that a crime has been reported or that an investigation into a crime is taking place. Of course not, ‘victim’ and ‘suspect’ apply to an incident of hate – not possible hate, but actual hate = based merely on perception.
Also, do the safeguards regarding disclosure for enhanced checks for job applicants etc rest on the assessment by a Chief Police Officer?
Code of Practice! Pah!! Revoke the whole absurd legislation! But of course this pusillanimous so-called Conservative government is too weak, divided – and yes in part itself ‘woke’ – to take any significant action.
I sometimes almost think – let’s let the woke win, they are fanatics, but work hard and at least (quasi-) believe in what they say.
I am looking forward to a time when Mr. Plod reverts to investigating Non Hate Crime Incidents which affect us all more seriously than so called NCHIs
I will make a radical proposition here:
‘No crime. in the entire history of the world, has ever been motivated by ‘hate’.’
Can you elaborate?
What is typfied as ‘hate’ is usually something else in my view, and primarily ‘the belief in unequal levels of entitlement’.
What criminals arrogate to themselves is a right to break laws, which they feel do not apply to themselves, but only to others whom they regard as fools or unworthy.
So for instance, a rapist may ‘hate’ women in a vague sort of a way, but what the crime itself involves is a denial to the victim of the right to choose where, when and with whom they engage in sexual activity. The rapist feels that their entitlement is more valid than that of the victim. So in cases like this the actual ‘hate’ takes (if it takes any part at all) a secondary role in the crime.
The effect of, say. a terrorist hating another religion may be strongly emotional in the abstract, but when it comes to the commission of the crime, it is the sense of cultural ‘entitlement’ that provides the rationale for the action and the lack of feelings of guilt.
Senses of entitlement, far from being ‘social’, are in fact the downstream result of theorising at the abstract level (which may be accompanied by feelings of hatred, but in my view strong ’emotions’ are liable to be dissipated in action (because no crime is ‘easy’ or straightforward)). Emotions are of the moment. They can be ‘cultivated’, but even that is a form of rationalisation and dissipation, which tends to blunt them, and what usually follows is a degree of planning and decision in which strong emotion is left behind (e.g. deciding to take a knife or gun to an argument).
Interesting take, thanks
Thanks. It’s tricky to express what I think, because so many factors are involved in human actions. As others have said above, there is no point in criminalising a theoretical ‘hatred’, because one cannot point to any real-world result of such feelings.
The picture of a hate-fuelled actor acting in the grip of a severe emotional attack doesn’t seem to fit in with anything I have seen of criminal behaviour. I watch many US TV real life crime shows. Even where a married couple ‘hate’ each other, any murder is usually the result of a long-term plan (only mitigated by the fact that most criminals are stupid, and less clever at planning than they think they are).
In other words it’s not the venting of an emotion, but a rationalised ‘solution’ to what they see as an intolerable situation which needs to stop (even if it originally began as hate).
Yes. I like the distinction between hate and entitlement as motivations where both may be present.
Welcome to DDR nu britn…
Apparently they are to be renamed ” Metrpolitanazi
Gestapolice….
In the event of being accused of hate, might it possible to counter accuse the accuser of the same? Given that no evidence of hate is required? Even if the accuser is not known?