Responding to non-crime hate incidents

Not all incidents reported need to be recorded. A record should only be made where it meets the threshold, as 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)

For further information, see Recording non-crime incidents perceived by the reporting person to be motivated by hostility.

Those non-crime hate incidents that meet the recording threshold should not be dismissed as unimportant – they can cause extreme distress to complainants and communities.

They may also be the precursor to more serious or escalating incidents. Non-crime hate incidents may form part of a series of incidents that, together, may constitute a crime, such as harassment. A retrospective review of crimes will often highlight earlier non-crime hate incidents that could have presented opportunities to intervene to reduce threat, risk and harm.

Although police officers have limited enforcement powers, they do have a general duty with statutory partners under the Equality Act 2010. See Partnership working.

Some incidents would if they are committed in public amount to a criminal offence, but not if they occur in a private dwelling, for example, some public order offences. A complainant is likely to suffer the same harm, regardless of the location. Where appropriate, complainants should be referred to appropriate support services. See Victim and witness care and support. 

Forces should be able to analyse non-crime hate incidents so that preventive activity can take place, identified community tensions can be monitored, and activity can be implemented to reduce them.

Ownership

The police do not always have primary responsibility for responding to non-crime hate incidents. Ownership will often fall to other statutory agencies. Although they may not have formal processes in place, all statutory agencies have the same legal duties under the Equality Act 2010.

It may be appropriate for the police to refer reported incidents to another agency for them to complete the task of assessing and mitigating risk or harm. For example, someone facing abuse on a transport service to a medical facility might expect that the agency which commissions the service would have a duty to respond to and eliminate such hostility.

A proportionate response

Police officers and staff need to consider the human rights of all parties whether they are directly involved, as a complainant or an involved person, or indirectly as someone affected by the circumstances of the incident or response.

The circumstances of an incident will dictate the response, but it must always be compatible with the Human Rights Act 1998, section 6(1). The Act states that it is unlawful for a public authority to act in a way which is incompatible with a right conferred by the European Convention on Human Rights (ECHR).

See also Impact factors.

Contact strategy

Careful consideration should be given to the way in which officers and staff contact someone who is the subject of a report of a non-crime hate incident. This applies to both the complainant who may, for example, have personal information, such as their sexuality disclosed by inconsiderate communications, and any other involved party who may face disproportionate harm from insensitive contact, for example, by unnecessarily alerting others to private information about the incident or the individual.

Officers and staff should consider whether it is proportionate to the incident, and the aim of the contact, to contact people involved in the incident. If it is, they should consider whether it is necessary to contact them at their place of work or study, or in a manner which is likely to alert a third party, for example, their friends, family or employer, to the complaint or the interest of the police (particularly where it may not be appreciated that the contact concerns a non-criminal matter).

Police should always consider the least intrusive method of contact for achieving their proportionate aims, for example, a telephone call, letter or visit.

Where the matter is likely to come to the attention of another person, such as the individual’s family, friend or employer, it may be helpful to provide the individual with information in a form which they can pass to the third party to clarify the police contact.

In all cases it should be clearly stated that the matter is a non-crime incident and they are not being investigated for a criminal offence. It should also be explained why a record will be made of the incident, how that information will be recorded and retained, and the individual’s rights to that information. See also Recording non-crime incidents perceived by the reporting person to be motivated by hostility and Data recording.

The following examples illustrate a proportionate response.

Example one

A victim, who is a wheelchair user, reports to the police that a man approached her in the street and threatened her in circumstances that amounted to a crime under the Public Order Act 1986, section 4. In doing so, the man also made derogatory comments about her disability.

This incident would be recorded as a crime and, given the demonstrated hostility, it should also be recorded as a disability hate crime and investigated as such.

Example two

The complainant reports the same circumstances as in Example 1, but this time the incident takes place at a party in her home. Given that the potential offence is not enforceable in a private dwelling, this should be recorded as a non-crime hate incident.

The police have a primary responsibility to determine that a crime has not been committed and to record the incident. An officer assesses the incident and the risk of escalation and decides that a proportionate response would be to record the incident, offer support to the complainant by referring her to support services, and include the incident in the intelligence processes to measure community tension.

The officer should also consider whether it would be beneficial and proportionate to approach any involved party, to explain the distress caused and to give them a right to reply.

Interventions where no criminal offence has been committed must be carefully considered so that any impact on the right to freedom of expression is taken into account.

Example three

The complainant reports that she was called a derogatory name referring to her disability, but the law has not been breached. This time the incident took place during a lesson in her school and the perpetrator is another pupil.

As no criminal offence has taken place, the incident would be a non-crime incident. The appropriate police response would be to refer the matter to the school management team, and to offer advice to the complainant about available support.

The school should assess the risk and decide on a proportionate response. The police should record the incident, recording the police interactions and the results of those actions.

See:

• Recording non-crime incidents perceived by the reporting person to be motivated by hostility.
• NSIR section 1.9
• Home Office counting rules for recorded crime, Annex B Crime recording (schools protocol)

Name-calling or verbal abuse could amount to an offence under section 5 or section 4a of the Public Order Act 1986. If this behaviour took place on more than one occasion, it may amount to an offence under section 2 of the Protection from Harassment Act 1997.

Recording non-crime hate incidents

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)

Forces must ensure that, where non-crime incidents are being recorded and dealt with, this is done by the least intrusive method, and achieves a legitimate policing purpose. For example, 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. 

To achieve the least intrusive method, 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 as motivated by hostility, should, or should not be recorded as a non-crime hate incident. A non-crime incident must not be recorded as such where it is trivial. A hostility qualifier should not be added where it is irrational, 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.

For further information, see Recording non-crime incidents perceived by the reporting person to be motivated by hostility.

Complainants may be reluctant to reveal that they think they are being targeted because of their ethnicity, religion or other protected characteristic or they may not be aware that a non-crime hate incident has occurred, even though this is clear to others.

Example

A heterosexual man is walking through an area near a venue popular with the LGBT+ community. He is verbally abused in a way that is offensive but does not constitute a public order offence. He reports the incident but does not believe it to be homophobic, or want it recorded as such, because he is not gay.

The officer taking the report is aware that several men have been attacked in that area over the last few weeks and the perpetrator appears to be hostile toward gay men.

The officer correctly reports this as a sexual orientation non-crime hate incident, recording the reasons in the report.

Statutory disclosure and barring provisions

The statutory disclosure and barring provisions in England and Wales are comprised of two elements (similar provisions exist in Northern Ireland and Scotland).

• Disclosure under the Police Act 1997.
• Barring under the Safeguarding Vulnerable Groups Act 2006.

Both elements are administered on behalf of HM Government by the Disclosure & Barring Service (DBS). See Statutory disclosure guidance.

Disclosure – Non-conviction information (which may include information relating to non-crime incidents) may be disclosed by a chief officer of police on an enhanced criminal record certificate if it satisfies the threshold imposed by s113B(4) of the Police Act 1997. This states:

...DBS must request any relevant chief officer to provide any information which: 

(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and 

(b) in the chief officer's opinion, ought to be included in the certificate.

See also Process for managing existing records of non-crime hate incidents.

The statutory threshold for disclosure is high, with less than 0.25% of enhanced criminal record certificates issued in England and Wales containing non-conviction information of any kind.

Barring involves state intervention in the decision to appoint an individual to a role, where that role involves regulated activity with children and adults. The state barring body (the DBS in England Wales and Northern Ireland) is responsible for determining if and whether individuals will be added to the relevant list of individuals who are barred from working or volunteering in a regulated activity with children and/or adults.

Under paragraph 19, of schedule 3 to the Safeguarding Vulnerable Groups Act 2006 chief officers of police are required to provide any information to DBS (which may include information about non-crime incidents) which the relevant chief officer reasonably believes to be relevant to the regulated activity. 

Further information on the DBS process and an individual’s rights in relation to information which may be disclosed, see Disclosure and Barring Service.