This page is from APP, the official source of professional practice for policing.
Not every reported incident is a crime. If officers are unsure whether a reported incident amounts to a crime, an initial investigation should be undertaken to establish the facts to determine whether it is a hate crime or a non-crime hate incident.
Where it is established that a criminal offence has not taken place, but the victim or any other person perceives that the incident was motivated wholly or partially by hostility, it should be recorded and flagged as a non-crime hate incident.
There may be an overlap between a perceived non-crime hate incident and the legitimate exercise of rights and freedoms conferred by the Human Rights Act 1998.
Police officers and staff responding to a non-crime hate incident must remember that they have limited enforcement powers in these circumstances. A disproportionate response may adversely impact on either an individual’s human rights, for example, by inhibiting free speech, or on levels of hostility and tension in society (see Miller v College of Policing and Humberside Police  EWHC 225 (Admin)).
While every police responder must determine for themselves the appropriate response in light of the circumstances, every response must be in accordance with the law and be proportionate.
Non-crime hate incidents should not be dismissed as unimportant; they can cause extreme distress to victims and communities. Where appropriate victims should be referred to victim support services. See Victim and witness care and support.
They may also be the precursor to more serious or escalating criminal offending. Non-crime hate incidents may form part of a series of incidents that, together, may constitute a crime, such as harassment. Retrospective review of crimes will often highlight earlier non-crime hate incidents that could have presented opportunities to intervene to reduce the threat.
There are some actions which will be criminal if they are committed in public but not if they occur in a private dwelling, for example, some public order offences. A victim is likely to suffer the same harm, regardless of the location. Responders should seek to reassure victims and signpost them to support services.
Forces should have a system for recording non-crime hate incidents and should be able to analyse them so that preventive activity can take place, and identified community tensions can be monitored, and activity can be implemented to reduce them.
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 victim or as the suspect, 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).
The right to respect for private and family life, the right to manifest one’s religion or beliefs, freedom of expression, and freedom of assembly and association are qualified rights and require a balance to be struck between the rights of the individual and those of the wider community.
Qualified rights are usually set out in two parts. The first part sets out the right or freedom, and the second part sets out the circumstances under which the right can be restricted.
Generally, interference with a qualified right is not permitted unless it is:
- prescribed by or in accordance with the law
- necessary in a democratic society
- in pursuit of one or more legitimate aims specified in the relevant Article
Careful consideration should be given to the way in which officers and staff contact an individual who is the subject of a report of a non-crime hate incident. This applies to both the victim who may, for example, have personal information, such as their sexuality disclosed by inconsiderate communications, and the suspect 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 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 to the person concerned that the matter is a non-crime hate 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 hate incidents and Data recording.
The following examples illustrate a proportionate response to non-crime hate incidents.
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.
The victim 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 should assess the incident and the risk of escalation and decide that a proportionate response would be to record the incident, offer support to the victim by referring her to victim support services, and include the incident in the intelligence processes to measure community tension.
The officer would also consider whether it would be beneficial and proportionate to approach the suspect, to advise them of the distress caused and to encourage them to consider how they might avoid causing harm or committing a criminal offence.
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.
The victim 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 there is no criminal offence in this circumstance, the incident would amount to a non-crime hate incident. The appropriate police response would be to refer the matter to the school management team, with the victim’s agreement, and to offer any advice they may need about available victim 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.
Note: 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
There are four key reasons why the police service would make a record of a non-crime hate incident.
- When an incident is reported to the police it is often not clear whether a crime has been committed. Circumstances are often unclear, and a record will be made to support initial investigative actions and to record any decisions.
- Where an incident is reported it may be necessary to record the information provided for intelligence purposes. This will help to identify patterns of behaviour: incident hot spots associated with a specific location, group or victim which may provide evidence of repeat victimisation, eg, antisocial behaviour directed to the same victim.
- Behaviour that falls short of criminal conduct but could later be evidence of a course of criminal conduct, eg, harassment, or as evidence of ‘motivated hostility’ in a future hate crime.
- Statistical analysis to improve understanding of the type and nature of non-crime hate incidents in a locality. Once sanitised this information can, where appropriate, be shared with partners to support the development of local prevention and intervention initiatives.
Where a hate incident is reported, it must be flagged as a hate crime or non-crime hate incident if the victim or any other person perceives that the incident was motivated wholly or partially by hostility, even if it is referred to a partner to respond.
Police officers may also identify a non-crime hate incident, even where the victim or others do not.
The recording system for local recording of non-crime hate incidents varies according to local force policy. Managers should have confidence that all incidents are being recorded correctly. See data recording for further information on how information should be managed.
Victims 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 they are a victim of a non-crime hate incident, even though this is clear to others.
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.
Disclosure and Barring Service checks
A current or prospective employer may request an enhanced Disclosure and Barring Service (DBS) check as part of their employment and/or recruitment processes. This may include records relating to non-crime hate incidents.
Chief officers must take into account the circumstances of the non-crime hate incident and whether it is relevant to the DBS check taking into account the role for which the person is applying, proportionality and human rights.
For further information on the DBS process and an individual’s rights in relation to information which may be disclosed, see Disclosure and Barring Service.