Responding to hate

Police officers and staff should respond positively to allegations, signs and perceptions of hostility and hate. Chief officers should ensure that their force has a clear policy that sets out a standard for the priority response to, and investigation of hate crime and non-crime hate incidents ensuring the response is proportionate. Supervisors and managers should proactively check reports of hate crime and non-crime hate incidents to ensure that the appropriate action has been taken and that allegations are investigated in a consistent and proportionate manner. Chief officers, with the support of the police and crime commissioners (PCCs) (or deputy mayors for policing and crime in London and Greater Manchester) should ensure that supervisory, management and performance processes support an effective response to hate crimes and non-crime hate incidents. There are five monitored strands of hate crime:

• disability
• race
• religion
• sexual orientation
• transgender

These strands are monitored as part of the annual data return. Hate crimes and non-crime hate incidents motivated by hostility are also committed against people who are targeted because of a non-monitored personal or protected characteristic. This guidance also applies to those allegations.

Note: non-crime hate incidents are not included in the annual data return, but this data may be collated locally to inform community engagement initiatives. 

Agreed definitions

The following definitions are shared by all criminal justice agencies and form the basis for national hate crime data recording. This does not deny hate as a motivating factor in other crimes. These definitions are inclusive and apply to both majority and minority groups.

Hate motivation

Hate crimes and incidents are taken to mean any crime or incident where the perpetrator’s hostility or prejudice against an identifiable group of people is a factor in determining who is targeted. This is a broad and inclusive definition. A victim, complainant or the person reporting the incident does not have to be a member of the group. In fact, anyone who is perceived to be or associated with an identifiable group of people (even mistakenly), could be a victim of a hate crime or targeted by a non-crime hate incident motivated by hostility.

For example, a heterosexual man who is verbally abused leaving a venue popular with the LGBT+ community may
perceive the abuse is motivated by hostility based on sexual orientation, although he himself is not gay.

Non-crime hate incident

Any incident where a crime has not been committed, but where it is perceived by the reporting person or any other person that the incident was motivated by hostility or prejudice based on: 

• a person’s race or perceived race
  • any racial group or ethnic background including countries within the UK and Gypsy and Traveller groups
• a person’s religion or perceived religion
  • any religious group including those who have no faith in a theology
• a person’s sexual orientation or perceived sexual orientation
  • any person’s sexual orientation
• a person’s disability or perceived disability
  • any disability including physical disability, learning disability and mental health or developmental disorders
• a person who is transgender or perceived to be transgender
  • including people who are transsexual, transgender, cross dressers and those who hold a Gender Recognition Certificate under the Gender Recognition Act 2004

See also:

• Recording non-crime incidents perceived by the reporting person to be motivated by hostility
• Responding to non-crime hate incidents

Hate crime

A hate crime is any criminal offence which is perceived by the victim or any other person to be motivated by a hostility or prejudice based on:

• a person’s race or perceived race
  • any racial group or ethnic background including countries within the UK and Gypsy and Traveller groups
• a person’s religion or perceived religion
  • any religious group including those who have no faith in a theology
• a person’s sexual orientation or perceived sexual orientation
  • any person’s sexual orientation
• a person’s disability or perceived disability
  • any disability including physical disability, learning disability and mental health or developmental disorders
• a person who is transgender or perceived to be transgender
  • including people who are transsexual, transgender, cross dressers and those who hold a Gender Recognition Certificate under the Gender Recognition Act 2004

These definitions are based on the 1999 Stephen Lawrence Inquiry report.

While a crime may be recorded and flagged as a ‘hate crime’, it may only be prosecuted as such if evidence of hostility is submitted as part of the case file.

Hate crime prosecution 

A hate crime prosecution is any hate crime which has been charged by the Crown Prosecution Service (CPS) in the aggravated form or where the prosecutor has assessed that there is sufficient evidence of the hostility element to be put before the court when the offender is sentenced.

Hostility 

The term ‘hate’ implies a high degree of animosity. The term ‘hate crime’ is a globally and historically recognised term which is widely used. Our definition, however, and the legislation it reflects, requires that the crime or incident involves demonstration of or is motivated (wholly or partially) by hostility or prejudice which may set a lower threshold than the term ‘hate’ may suggest. 

The CPS gives the following guidance to prosecutors.

In the absence of a precise legal definition of hostility, consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment, and dislike.

See also Evidencing hostility.

Note:

• racial group includes asylum seekers and migrants
• religion includes sectarianism
• sexual orientation includes those who identify as lesbian, gay, bisexual and heterosexual

Perception-based recording

Recording hate crimes

Any crime may be motivated by hostility. Where the victim, or any other person, perceives that they have been targeted because of hate or hostility against a monitored or non-monitored personal characteristic, the crime should be recorded and flagged as a hate crime. Police officers and staff should establish core facts, as they would for any crime, including why the victim, or those reporting, perceived the crime to be motivated by hostility.

At the time of reporting, the victim or person reporting does not have to justify or provide evidence of their perception that the crime was motivated by hostility. Officers and staff should not challenge this initial perception. 

Accepting the perceived motivation of hostility does not make a judgement about the actions of any person involved. However, it recognises the need to look for material which could provide evidence of motivation, as well as material relating to the underlying crime. Gathering material which may be evidence of motivation will also help to identify appropriate support for victims, and actions needed to prevent community tensions escalating.

To support a prosecution for a hate crime, investigators must provide material that demonstrates the hostility element of the crime. Where supporting material is not found, the crime will not be charged or prosecuted as a hate crime. 

See Hate crime prosecution.

Where the case is not prosecuted as a hate crime, the hate flag will, however, remain on file, unless the flag was added in error or the victim, or the person who perceived the hostility, changes their perception based on new information. 

Recording non-crime incidents perceived by the reporting person to be motivated by hostility

In the Police, Crime, Sentencing and Courts Act 2022, which received Royal Assent in April 2022, the Government included provisions that enable the Home Secretary to issue a statutory code of practice to the police about the recording and retention of personal data relating to non-crime hate incidents.

The College of Policing is working with the Home Office to develop this code of practice and is concurrently reviewing this Hate Crime APP to ensure that the future code of practice and updated APP fully align. The code is expected to be published in late 2022 or early 2023. 

See Current position.

Not all incidents reported need to be recorded. A record should only be made where it meets the threshold set out in the national standard for incident recording (NSIR).

A single distinct event or occurrence which disturbs an individual, group or community’s quality of life or causes them concern.

National standard for incident recording (NSIR)

A non-crime hate incident may, for example, be recorded in the following circumstances.

• When an incident is initially reported to the police as a crime, but it is not clear from the report whether a crime has been committed or not. Circumstances will often be unclear and a record will be made to support investigative actions to determine what has happened, and to record any decisions. Where it is determined that a crime has not been committed, the crime record should be cancelled and treated as a non-crime incident.

• When an incident is reported and the nature of the incident means it is necessary to record the information for intelligence purposes. This may be because it contributes to or involves people, objects, locations or events (POLE) relevant to a developing intelligence picture. It may help identify patterns of behaviour and/or incident hot spots associated with a specific location, group or person and may provide evidence of repeat targeting, such as antisocial behaviour directed towards the same complainant. 

• When the alleged behaviour falls short of criminal activity, but the surrounding circumstances suggest that the behaviour may contribute to or become evidence of a course of criminal conduct – for example, harassment. Recording the incident will allow the police to investigate the circumstances and determine whether the information is relevant. 

• For statistical analysis of non-crime hate incidents, to help improve understanding of the type and nature of hostility in a locality. Once sanitised and all personal information is removed, this information can, where appropriate, be shared with partners to support the development of local prevention and intervention initiatives.

Complaints which are trivial, irrational or malicious should not be recorded as a non-crime hate incident. 

Forces must ensure that, where non-crime incidents (whether motivated by a perception of hostility or not) are being recorded and dealt with, this is done by the least intrusive method to achieve a legitimate policing purpose. For example, when recording information for intelligence purposes it may not be necessary to record the personal data of any party, other than the complainant, to achieve the policing purpose. 

Where there is no policing purpose at the time the incident is reported, or if after investigation the policing purpose no longer exists, personal data should not be recorded or retained, or where already held, it should be deleted. Simply recording location data and an overview of the circumstances may be sufficient to meet problem solving, analysis and auditing needs.

In all cases when recording personal information, a decision must be made about why the data is being collected and how the data will be managed. This may be an iterative process as an incident or investigation develops. 

For further information on retention, review and disposal of incident records, see APP on Information management – Retention, review and disposal.

When dealing with non-crime incidents alleged to be motivated by hostility, officers and staff must apply proportionality, common sense and discretion when deciding, based on the available facts, whether a report, perceived by the reporting person to be motivated by hostility, should or should not be recorded as a non-crime hate incident.

A non-crime incident must not be recorded where it is trivial and a hostility qualifier should not be added where it would not be reasonable to do so. For example, where the complaint is irrational or malicious, and/or there is no evidence to support the perception of the complainant or other person that the incident is motivated by hostility against a monitored strand or protected characteristic.

If there is no basis to conclude that an incident was motivated by hostility, it should not be recorded as a non-crime hate incident.

Courts have expressed particular concern that recording hate incidents about speech debating political or social issues may have a chilling effect on a person’s freedom to engage in legitimate debate. The Court of Appeal stated a chilling effect occurs where the police response to an incident inhibits a person from engaging in public debate on a subject.

Disagreement and debate do not mean that hostility is present. A cautious approach should be taken when considering whether such speech should be recorded as a non-crime hate incident. An incident should only be recorded where there is a firm basis for the perception that the speech demonstrates hostility against a monitored strand or protected characteristic.

See also Impact factors.

Overarching principles

Definition of an incident

The NSIR defines an incident as ‘a single distinct event or occurrence which disturbs an individual, group or community’s quality of life or causes them concern’.

Home Office Counting rules

Home Office Counting Rules for recorded crime state that ‘all reports of incidents, whether from victims, witnesses or third parties and whether crime related or not, will, unless immediately recorded as a crime, result in the registration of an auditable incident report by the police’.

Least intrusive method

When responding to an incident, the least intrusive method that achieves the legitimate policing purpose must be used. There must be a policing purpose to record personal data. Careful consideration should be taken over whether and how personal data should be recorded, retained, reviewed and disposed of. This is particularly important where those involved in the incident have not committed a crime.

It may not be necessary to record personal data of any party, other than the complainant, to achieve the relevant policing purpose. Simply recording location data and an overview of the circumstances may meet intelligence, problem solving and auditing needs. See APP on Information management – Retention, review and disposal.

Non-crime terminology

Non-crime terminology should be used to refer to the parties involved in a non-crime incident, for example complainant, reporting person or involved party.

Freedom of expression

When a person expresses an unpopular or controversial view, for example during a politician’s speech, or during other public debate on a controversial subject (including debate in the online space, for example on Twitter), Article 10 of the European Convention on Human Rights (ECHR) provides some protection for that individual’s right to freedom of expression.

• The police role is to prevent harm. It also has a duty under the Equality Act 2010 to have regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act.
• The police must respond to allegations of hate speech proportionately, in a way that does not have a chilling effect on the speaker’s freedom of expression. The Court of Appeal has ruled that any interference with the speaker’s freedom of expression must be no more than is strictly necessary to achieve the legitimate policing purpose.
• Even where the speech is potentially offensive, a person has the right to express their personally held view in a lawful way. Disagreement and debate do not, on their own, indicate hostility.
• Where the speaker acts in a way that breaches the criminal law, for example incitement to violence, the incident should be recorded and responded to as a crime. See Recording hate crimes, Inciting hatred and Online hate.

Example one

A Christian person reports that they have seen an online post that contains an interpretation of text from the Bible that is different from their own teachings. They believe the text undermines their faith and will lead to divisions and potentially may lead to tensions between different groups.

They are offended by the text and ask the police to order its removal. The police record the incident but consider that the complaint does not amount to an allegation of ‘hostility’. They do not apply the hostility qualifier to the non-crime incident.

They notify the complainant that they will not intervene and ask the complainant to notify the police if they believe there is evidence that tensions are escalating. No personal data, except that of the complainant, is recorded, even if the subject of the complaint is identified. 

Example two

A radio presenter talks on his show about the history of Britain in colonial times. He talks about the role of slavery and claims that modern Britain is seeking to ‘sweep history under the carpet’. He talks about more modern events such as the Falklands and Northern Ireland as evidence of Britain not learning from history. He calls for a revision of modern teaching to prevent ‘injustice’ in future foreign policy.

A person listening to the show is outraged by the debate and the views expressed by the presenter. They report the matter as an anti-British racist hate crime, saying it is inciting racial hatred.

The police establish that there is no recordable crime and record a non-crime incident. The reviewing officer accepts the complainant alleges hostility but assesses that the perception of hostility is irrational. They believe a reasonable person would accept the contribution to a legitimate debate, even if they found it offensive or disagreed with it. No personal data, except that of the complainant, is recorded. 

Trivial, malicious and irrational complaints

Trivial, malicious and irrational complaints must not be recorded as a non-crime hate incident. Similarly, individuals who are engaged in legitimate debate, for example, on political or social issues, should not be stigmatised simply because someone is offended. 

Example

A person sees an online report that authorities have responded to community concerns about anti-transgender posters that were posted at the scene of an LGBT+ Pride event.

Local authorities removed the posters and the police initially recorded the complaint as a non-crime incident, adding a hostility qualifier on the grounds of hostility to transgender identity. This was because the posters were assessed as containing threatening material.

The person who saw the online report, reports a hate crime/incident on the grounds of religious hostility, saying the local authorities have offended their philosophical faith around biological gender by removing the posters.

The police review the record and decide it does not amount to a crime and that it is not a hate incident because the complainant is asking the police to record legal activity by the local authority as a crime or incident and this would not be rational. The police notify the complainant about their decision to record an incident. 

Notification

When a record is created that includes information that could identify the person who is the subject of a complaint, a decision must be made about whether to inform that person. In a limited range of circumstances, it may not be appropriate to inform a person about a report. For example, where an individual is subject to multiple reports about the same event, it may not be appropriate to provide multiple notifications. In most circumstances, however, the person subject to complaint should be given an opportunity to reply to the complaint. It may also be necessary and appropriate to remove information that might identify any party complained about because there is no policing purpose to retain that information. 

See also Management of police information.

Seek advice from Duty Silver, a hate crime expert or your local crime registrar, where there is any doubt.

See also Responding to non-crime hate incidents.

Process for managing existing records of non-crime hate incidents

The judgment in the case of Miller v The College of Policing [2021] EWCA Civ 1926 did not refer to records of non-crime hate incidents which may already exist and have not been subject to the considerations set out in this interim APP. 

It would not be a proportionate use of police resources to undertake a review of all existing records. Where these records do exist and if in any context they are discovered – for example, general policing enquiries, an enhanced criminal record certificate or when a person makes a subject access request (SAR) – particular care should be taken to review the record before considering disclosure.

Reviewing existing records

Where an existing non-crime hate incident record is identified during any process, the record should be reviewed to consider whether it should exist (consider Step four – Review in the Process for recording non-crime incidents).

If the record has been made or retained inappropriately, applying this guidance, it should be deleted and discounted for all other purposes.

If it is considered that the record should exist, where the record is being considered for disclosure, including a subject access request or enhanced criminal record certificate, the appropriate guidance for those processes should be followed. See also Statutory disclosure and barring provisions.

The subject of an enhanced criminal record certificate may have the opportunity to make representations against disclosure during the disclosure process. They also have access to the Disclosure and Barring Service (DBS) dispute process and a right of appeal through the Independent Monitor for Disclosure and Barring. For more information, see Statutory disclosure and barring provisions and Report a problem about a criminal record check or barring decision.

Subject access request

If a person thinks that a non-crime hate incident record may have been made, and it may include their personal details or makes them otherwise identifiable, they can make a SAR.

When forces respond to such requests, they should consider, where a record is found, whether the record should exist (consider Step four – Review in the Process for recording non-crime incidents). If the record has been made or retained inappropriately, it should be deleted and the person making the request should be notified that a record was found, but this has now been deleted.

If a record is identified and retained, it will be disclosed as part of the SAR procedure.

See Get a copy of your police records.

Personal data should be deleted where it does not relate to a crime and there is no policing purpose for its retention. See APP on Information management.

Impact factors

The surrounding circumstances and context of an incident are often as important as the incident itself when considering whether it is rational for the complainant to hold their perception. There are a range of impact factors that may support police decision-making. 

Everyone has the right to freedom of expression under Article 10 of the ECHR. They have a right to express themselves and their opinions about potentially controversial subjects and enter into legitimate debate. This can include potentially offensive views or opinions. These may be expressed through a variety of mediums, for example a public speech or debate, or in public via the press, media or social media, or in private. Not everyone will agree with the ‘speaker’s’ point of view, but that does not undermine their legitimate right to express their view. 

In the majority of these cases, hostility will not be a motivating factor. In reaching a decision about whether the reported incident is motivated by hostility, the context, the speaker and the alleged words and behaviours must all be considered. It is not sufficient that a person is offended.

Factors to consider include but are not limited to the following. 

• Intentions of the speaker and the person(s) to whom the speech is directed (the audience). It is important to consider the age of the speaker and/or their use of language. 
  • Mitigating factors may include a young person who may repeat words or phrases heard elsewhere, not understanding the impact. A person who may have a neurodiversity which means they may have difficulty understanding the impact of their speech or actions or finding the right words to express their views. Where English is not the speaker's first language, they may inadvertently mis-interpret language without meaning to cause offence.
• Audience to whom the speech is directed. Was the speaker targeting the complainant (aggravating) or making a general comment not directed at any individual (mitigating)? 
• Proximity of the speech and/or speaker to the time or location of sensitive events. Those speaking in the aftermath or an anniversary, or near the site of a public tragedy, protest or rally, may have more impact (aggravating).
• Medium of distribution or the way in which the speech is delivered. For example in person or face to face, posters or flyers in a targeted community, compared to a newspaper article or social media not aimed at a particular person or community.
• Risk of violent reactions and whether, for example, the speaker is explicitly or implicitly encouraging acts or behaviours which may amount to a crime or anti-social behaviour (aggravating).
• Potential harm that may be caused to others as a result of the speech or speaker, for example inciting hatred or violence in others (aggravating).

A proportionate decision will be informed by consideration of: 

• the potential harm to all those involved in the incident, whether caused by the incident or as a result of a police record and response
• legal duties placed on authorities, for example the public sector equality duty under Section 149 of the Equality Act 2010, to:
  • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act
  • foster good relations between persons who share a relevant protected characteristic and persons who do not share it
  • advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
• the national decision model and whether interference with all individuals’ human rights is proportionate, legal, accountable and necessary (PLAN).

Malicious calls

A malicious call is classed as a hoax call for the purposes of the NSIR.

Some people may be motivated by malice and may try to distort the truth and misuse the reporting and recording process to target individuals or communities. Malicious calls may be more likely to target those engaged in political speeches or legitimate debate on potentially controversial subjects because they have a public platform. Callers may do this to further an ideological (or other) agenda or will seek to undermine the efforts of authorities to uphold the rights of others. Some reports are intended to promote bigotry that they purport to be complaining about. 

Any other person

Perception-based recording refers to the perception of the victim, the person reporting, or any other person.

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

Anyone can, however be targeted by a hate crime or non-crime hate incident, including those from majority groups and police professionals.

See Internal hate crime and incidents.

Any other person could refer to any one of a number of people, including:

• police officers, staff or prosecutors
• witnesses
• family members
• members of civil society organisations who know the victim, complainant, the crime or incident or hate crimes or incidents in the locality, such as a third-party reporting charities
• a carer or other professional who supports the victim or complainant
• someone who has knowledge of hate crime or incidents in the area – this could include professionals and experts, for example, the manager of an education centre used by people with learning disabilities who regularly receives reports of abuse from students
• a person from within the identifiable group targeted by the hostility

Non-monitored hate crime

The five monitored strands are the minimum categories that police officers and staff must record and flag. There are, however, other groups and individuals who may be targeted due to their personal characteristics. Forces, agencies and partnerships can extend their local policy response to include hostility against other groups or personal characteristics, they believe are prevalent in their area or that are causing concern to their community.

Case study – Sophie Lancaster 

In August 2007, Sophie Lancaster and her boyfriend Robert Maltby were attacked without provocation. Both suffered a violent and sustained attack. Sophie’s injuries were so severe that she died 13 days later. The attack was motivated by hate because Sophie and Robert looked and dressed differently. They were perceived to be Goths, and were part of an ‘alternative’ subculture. They wore distinctive clothing and make-up associated with their lifestyle. To their attackers they were known as ‘moshers’ and were, therefore, a target. In sentencing, the judge said that he was convinced that the murder was a hate crime. The law did not provide for a specific enhanced sentencing provision, but the court was able to take into account the hostility when calculating the seriousness of the offence for sentencing purposes.

Caste-based crimes

Some communities have a historical culture of caste definition where some sections of communities are considered to be less worthy than others. This can lead to isolation of subgroups within broader communities and this may lead to discrimination. It can, on occasion, also lead to hostility within communities. These incidents can be recorded and flagged as a race or religious hate crime or non-crime hate incident. But, that may not be appropriate in all cases and each incident should be considered on its facts and the perception of the victim.

Identifying trends in hate crime

Where a trend is identified or a community reports concerns about a new type of hate crime or non-crime hate incident, in particular relating to non-monitored strands, action should be taken to address this. This may include:

• including it in local policy
• seeking more information on the extent of the hostility
• community engagement activity
• media strategies
• problem-solving approaches with education services or other stakeholders
• including it in the threat assessment process within the National Intelligence Model (NIM)

Case study – attacks on street sex workers 

Merseyside Police and partners recognised they had a significant problem of violent attacks against street sex workers and that there were similarities with other types of hate crime. Some believed the attacks were fuelled by gender hostility, and were able to show a significant problem of under-reporting. Merseyside Police introduced crimes against sex workers into the locally monitored strands of hate crime to demonstrate their commitment to addressing these issues. Merseyside Police led partnership activity and played a key role in providing a more victim-focused multi-agency response.

Repeat victimisation

The first time an incident or crime comes to the notice of the police is not necessarily the first time it has happened. Victims or complainants may be too frightened to report earlier incidents or may not realise that the abuse they are suffering is a crime, or an incident the police will record and/or respond to. All investigators, including first responders, should ensure they investigate circumstances fully, including any possible history of abuse.

The Home Office Circular 19/2000 on Domestic Abuse defines repeat victimisation as ‘being the victim of the same type of crime (for example, hate crime) more than once in the last 12 months’.

This definition is useful in understanding repeat victimisation in hate crimes and incidents. The victim or complainant may be subject to repeated incidents by the same offender or third party, or repeated incidents by different offenders or third parties. Repeat incidents should be recorded where it is appropriate, as they may demonstrate a course of conduct, for example, harassment, or an escalation in behaviour or increased community tension, and are likely to increase the threat of further attacks.

Secondary victimisation

The 1999 Stephen Lawrence Inquiry highlighted that a victim or complainant may suffer further harm because of insensitive or abusive treatment from the police service or others. This may include, for example, perceived indifference or rejection from the police when reporting a hate crime or incident. This harm may amount to secondary victimisation.

Secondary victimisation is based on perception and it is immaterial whether it is reasonable or not for the victim or complainant to feel that way. An open and sensitive policing response can prevent escalation. Police decision-making and actions should be clearly explained. This is particularly important where the outcome is not what the victim or complainant was expecting. Secondary victimisation can cause an incident to escalate into a critical incident. Where this has happened, a senior officer should be notified and the incident managed appropriately.

Legislation

Legislation provides three specific options to support the prosecution of hate crime:

• offences of inciting hatred on the grounds of race, religion and sexual orientation
• specific racially and religiously aggravated offences under the Crime and Disorder Act 1998
• enhanced sentencing under the Criminal Justice Act 2003

Note: see also The Criminal Justice (No. 2) (Northern Ireland) Order 2004 for legislation that applies in Northern Ireland only.

Racially or religiously aggravated offences

The Crime and Disorder Act 1998 (the 1988 Act) introduced racially aggravated offences. The Anti-terrorism, Crime and Security Act 2001 amended the 1998 Act to also include religiously aggravated offences. Sections 29−32 of the 1998 Act identify a number of offences, which, if motivated by hostility, or where the offender demonstrates hostility, can be treated as racially or religiously aggravated. These offences can be the preferred charge where there is evidence of racial or religious aggravation when committing the offence. For any other offence where there is evidence it was motivated by hate, or for any other strand of hate crime not covered by the 1998 Act, the CPS can request enhanced sentencing.

See also Sentencing for hate crime.

Definitions

Section 28 of the 1998 Act sets out that an offence is racially or religiously aggravated if:

• (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates hostility towards the victim, based on the victim’s membership (or presumed membership) of a racial or religious group; or
• (b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group
  • ‘membership’ includes association with members of that group
  • ‘presumed’ means presumed by the offender

It is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in the 1998 Act, section 28. A racial group is any group of people defined by reference to their race, colour, nationality (including citizenship), ethnic or national origins. See R v Rogers [2007] UKHL 8 for further explanation of the term ‘racial group’. A religious group is any group of people defined by reference to religious belief or lack of religious belief. This would include sectarian hostility.

Specific hate crime offences

A number of specific offences have been created by legislation, which, when the relevant points have been proved, will always be considered as hate crime. The 1998 Act created a number of specific offences of racially and religiously aggravated crime, based on offences of wounding, assault, criminal damage, harassment and threatening and/or abusive behaviour.

• Incitement to hatred – race; the Public Order Act 1986, Part III.
• Incitement to hatred – religion or sexual orientation; the Public Order Act 1986, section 29B.

Incitement offences contained in the Public Order Act 1986 also include offences of distribution, broadcasting, performance, public display and possession of inflammatory material.

See also Inciting hatred.

Racist chanting

Section 3 of the Football (Offences) Act 1991 makes it an offence to engage or take part in chanting of an indecent or racialist nature at a designated football match. A designated football match means an association football match or a match designated by the Secretary of State. Chanting means the repeated uttering of any words or sounds, whether alone or in concert with one or more others. Of a racialist nature means consisting of, or including, matter which is threatening, abusive or insulting to a person because of their colour, race, nationality (including citizenship), ethnic or national origins.

Sentencing for hate crime

Enhanced sentencing provisions allow the court to take aggravating factors into account when sentencing an offender, reflecting the seriousness of the offence and motivation of the offender. Section 66 of the Sentencing Act 2020 requires the courts to consider hostility as an aggravating factor when deciding on the sentence for any offence that has not been identified as a racially or religiously aggravated offence under the 1998 Act. The provision covers hostility against the five monitored strands and instructs the sentencing court to;

• (a) treat the fact that the offence is aggravated by hostility […] as an aggravating factor, and
• (b) state in open court that the offence is so aggravated

Witness intimidation

Witness intimidation is an offence under section 51(1) and 51(2) of the Criminal Justice and Public Order Act 1994. It can also constitute a common law offence of perverting the course of justice. Witness intimidation in a hate crime case is particularly damaging. Witnesses who have been subjected to, or are at risk of, intimidation should be afforded the same level of service as the original victim.

See also Risk management.

Officer discretion

It may not always be appropriate or proportionate to impose a criminal sanction where hate is a motivating factor and a crime has been committed. However, the more serious the crime, the more likely a prosecution will be required under the public interest test. Where the victim does not support a prosecution but simply wants the criminal behaviour to stop, it is important to remember the victim’s views may not be the deciding factor.

Where a victim does not support a prosecution or requests an alternative remedy, it is important that the victim’s decision is properly informed and they are made aware of available support in going to court. See Victim and witness care and support. To consider the full range of alternative remedies or sanctions available, officers should consult their local hate crime unit, community safety partnerships (CSPs) or CPS hate crime coordinator. See also Alternative outcomes.

Under-reporting of hate crimes

Many people, particularly those in isolated communities, may find it difficult or be reluctant to report to the police directly, but may be more willing to report to a community resource. The need to provide facilities for victims to report to a third party was one of the key findings of the Stephen Lawrence Inquiry in 1999. Chief officers should consider how to encourage increased reporting of non-crime hate incidents and hate crimes in their force.

Third-party or assisted reporting

Third-party reporting services aim to increase hate crime reporting and the flow of intelligence from a community by providing alternative methods of contacting the police and reporting a crime. If the police are proactive and deliver effective third-party reporting services tailored to meet the needs of victims, more victims may be encouraged to come forward. Targeting schemes at individuals or groups who face the highest risk of victimisation, and/or those who are least likely to report crimes to the police, may be particularly beneficial. Those with knowledge of the community and its challenges are best placed to decide what may be the most effective method to reach these groups/communities. 

True Vision has a range of web-based and physical resources to help forces develop third-party reporting services, for example, ‘easy-read’ information or translated reporting forms. The effectiveness of third-party services should be periodically measured to ensure they have and retain the expected impact. Where appropriate, different approaches may need to be tried to achieve the best effect. Community partners involved in third-party reporting services should agree on the method and timescales for monitoring performance. Victims are primarily encouraged to report crimes directly to the police, so in addition to measuring the number of reports submitted to the police through the service, it is also important to consider a scheme’s impact on community confidence and the broader support it offers to victims, professionals and communities.

Recommended review process for third-party reporting services/schemes

Data sharing with third-party reporting facilities

An information sharing and data-security protocol must be established between the third-party service and the police taking into account the Data Protection Act 2018, so that those using the site are confident about what will happen to the information they provide and its security. Specimen information-sharing agreements and other support material can be found at True Vision. One example of a successful third-party service is the national charity Stop Hate UK, which also produces resources available in 40 languages, including: Braille, large print, words into pictures/easy read, a British Sign Language DVD and audio recording, and has a number of specific materials on sexual orientation, mental health hate crime and young people.

Data recording

All forces report hate crime data as part of the Home Office annual data requirement. Police managers should have systems in place to monitor this process and to ensure that staff know how to report crimes and incidents accurately. See also Performance management.

National standard for incident recording

The national standard for incident recording (NSIR) provides a framework for recording incidents, whether crime or non-crime, consistently and accurately. This allows the resulting data to be used at a local and national level and to meet the management and performance information needs of all stakeholders. It also allows the UK to meet its international commitments, which include transparency about the collection of hate crime data. The NSIR includes the National Incident Category List (NICL) and counting rules. It provides recording guidance for incidents where hate is identified as a qualifying element. Where an incident record is created in accordance with the NSIR, certain information must be recorded.

Crimes

The majority of hate crimes are both recordable and notifiable. See the Home Office Counting Rules for further information. Hate crime is not recorded as a single category of crime. Instead, it occurs as a feature of different types of crime. The counting rules include a number of crime types where the racially or religiously aggravated forms of hate crime might commonly be recorded. However, some forms of hate crime fall outside these specific categories. The Offence Classification Index 2019 includes the following specific crimes where racial or religious aggravation commonly occur:

• 8M racially or religiously aggravated harassment
• 8P racially or religiously aggravated assault with injury
• 105B racially or religiously aggravated assault without injury
• 58J racially or religiously aggravated criminal damage
• 9B racially or religiously aggravated public fear, alarm or distress

Management of police information

Under Home Office (2005) Code of Practice on Management of Police Information, the police are authorised, and should have clear guidelines, to manage information, including personal information, for a police purpose. In making a record, particularly where the incident is a non-crime hate incident, police must also apply the Data Protection Act 2018 (DPA) and General Data Protection Regulation (GDPR). The information held must take into account the six data protection principles for law enforcement and general processing, in particular the first principle of lawfulness, fairness and transparency. Records must be held consistently, identifying the nature of the information and its purpose. Any information must be managed in line with the Code of Practice and supporting APP on information management for the retention and disposal of police records.