14 February 2020

Policing hate crime guidance ruled to be lawful

A High Court judge has today rejected a claim that the College’s hate crime guidance is unlawful.

The claim alleged the Hate Crime Operational Guidance for police was in violation of Article 10 of the European Convention on Human Rights (freedom of expression) and common law.

The Honourable Mr Justice Julian Knowles (High Court of Justice, Queen’s Bench Division) today ruled the mere recording of a non-crime hate incident based on an individual’s speech is not an interference of their rights and if it was, it is prescribed by law and done for two of the legitimate aims in Article 10.

The challenge at common law was also rejected.

The case, heard at the High Court last November, involved a series of Tweets from the claimant where views on transgender individuals were expressed. The claimant was subsequently spoken to by police, who referenced the hate crime guidance.

Mr Justice Knowles rejected the claimant’s challenge that the guidance is unlawful and said he was satisfied it pursues the legitimate aim of preventing disorder and crime and protecting the rights and freedoms of others.

Mr Justice Knowles added ‘the recording of non-crime hate incidents barely encroaches on freedom of expression, if it does so at all,’ and described the aims of the guidance as 'extremely important’.

Deputy Chief Constable Bernie O’Reilly, said: “It is pleasing that today’s judgment found that the College of Policing’s guidance on the recording of non-crime hate incidents is both lawful and extremely important in protecting people. Policing’s position is clear - we want everyone to feel able to express opinions as passionately as they wish without breaking the law.

“A priority for police is protecting people from physical harm. Hate incidents can be a precursor to these types of crimes and without recording them the police will begin to lose sight of what is happening in their communities  - and potentially lose their confidence.

“The findings of the Stephen Lawrence Inquiry, on which some of our guidance was based, demonstrate the importance for us to understand how hate can escalate among communities. Our guidance is about protecting people because of who they are and we know this is an area where people may be reluctant to report things to us because of the very personal nature of what they experience or perceive.

“In policing we don’t always get things right and there will of course be some learning following today’s judgement.

“Policing is a tough job with colleagues across England and Wales doing their best every day and to balance the needs and rights of everyone, making good decisions with the overall aim of protecting people.”

The current guidance, which the College of Policing began reviewing last year, is informed by prior policies and reports including the Macpherson Report into the murder of Stephen Lawrence and the Criminal Justice Act 1991, which introduced a focus on the recording of data relating to hate incidents.

Q&A

What is a hate crime?

Any criminal offence which is perceived by the victim or any other person (described below), to be motivated by hostility or prejudice based on:

1.  race

2.  religion

3.  sexual orientation

4.  transgender

5.  disability

It doesn't always include physical violence. Someone using offensive language towards you or harassing you because of who you are, or who they think you are, may also be a crime.

What is an example of a hate crime?

Hate crime can fall into one of three main types: physical assault, verbal abuse and incitement to hatred (when someone acts in a way that is threatening and intended to incite hatred. It includes words, pictures, videos, music, and includes information posted on websites).

What is a hate incident?

A hate incident is any incident which the victim, or anyone else, thinks is based on someone's prejudice towards them because of their race, religion, sexual orientation, disability or because they are transgender.

What's the difference?

A hate incident becomes a hate crime when there is a criminal offence committed.

For example, if someone is physically assaulted because of their race it becomes a hate crime as the assault is classed as being motivated by hate.

The Criminal Justice Act 2003 entitles judges to impose a stronger sentence when it is classed as a hate crime.

If a hate incident isn't a crime, why do police record it?

Experience tells us that sometimes incidents of hate can quickly escalate.

For example, if someone is being harassed, the first incident may not be a crime but subsequent incidents make it one.

Without that initial report, police can't build up a picture of offending over a period of time.

Our decision to record incidents partially comes from the Stephen Lawrence Inquiry Report, where police were found not to understand the experiences of people who had been subjected to racism.

It led to the police being required to record incidents they are called to but do not meet the criminal threshold.

The alternative to not recording all of these incidents is that the public's concerns are not understood by the police.

What happens when the police record a hate incident?

An officer will record the incident on their local force database – not the Police National Computer –and then decide on the appropriate course of action.

If a hate incident is recorded against me, will it automatically show up on checks?

A hate incident does not automatically show up on police checks.

An ordinary criminal record certificate would not show a hate incident recorded against someone.

These checks are carried out on the Police National Computer and officers only record hate incidents on their local databases.

However, an Enhanced Criminal Records Check contains information on the Police National Computer and information about the person held on local police records which the police believe may be relevant and ought to be included.

Generally speaking, Enhanced Criminal Records Checks are required when someone applies for a position which is especially sensitive, for example, working with children or vulnerable adults.

Can I appeal against a hate incident being disclosed?

You can appeal a disclosure of information by contacting the Disclosure and Barring Service.

A hate incident is any incident which the victim, or anyone else, thinks is based on someone's prejudice towards them.

Who falls under the 'any other person' category?

It could be someone who witnesses an attack.

It would not be appropriate to record a crime or incident as a hate crime or hate incident if it was based on the perception of a person or group who had no knowledge of the victim, crime or the area, and who may be responding to media or internet stories or who are reporting for a political or similar motive.

The other person could, however, be one of a number of people, including:

•  police officers or staff

• witnesses

• family members

• civil society organisations who know details of the victim

• a person from within the group targeted with the hostility


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