Is hate always a crime? The police shouldn't blindly trust self-appointed victims

What the public wants from the police — as a 2020 report from the Police Foundation think tank suggests — is pretty much what you’d expect: more visible policing on the street, and a focus on “sexual crime, violent crime, investigating serious crime, responding quickly to calls for help, tackling terrorism and taking action on organised crime”. In other words, we want the greatest energy focused on the crimes with the highest potential to devastate lives.

Of course, as the Strategic Review of Policing in England and Wales — set up to shape a “long term strategic direction for the police service” — acknowledges, a lot of crime has migrated from the streets to electronic highways. Fraud and computer misuse now make up 44% of all crime in England and Wales. The number of police officers in England and Wales, however, fell by 20,000 between 2010 and 2019. The government has promised 20,000 additional police officers by 2023, more than half of whom have now been recruited. Ideally, this should contribute to a more efficient police force with an enhanced presence on the streets. Add in more rigorous safeguards against bias and corruption, promised in the aftermath of this reputationally disastrous year, and it doesn’t seem unreasonable to hope for a new, improved force.

But there’s a problem: recent, fuzzily-framed powers are taking our police in a direction that the public — and many officers — clearly do not want. Instead of patrolling the pavements, officers are increasingly encouraged to patrol the finer nuances of legitimate public debate. At a recent football match, Crystal Palace fans unveiled a large banner criticising the Saudi-backed takeover of Newcastle United. It featured a bearded character clearly depicting the Saudi Crown Prince Mohammed bin Salman Al Saud, along with a trenchant critique of Saudi Arabia’s shocking record on human rights. Croydon police promptly tweeted that they had “received a report of an offensive banner displayed by Crystal Palace fans” warning that “any allegations of racist abuse will be taken very seriously.” A later tweet from them thankfully confirmed that “no offences have been committed”, something which most sane people could have recognised with one glance.

The argument over trans rights and women’s rights, too, has triggered lengthier but similarly doomed police investigations. One such case culminated in the bizarre 2019 prosecution of Miranda Yardley, a transsexual, for allegedly committing a transphobic hate crime online. The police investigation had been prompted by complaints against Yardley from a trans rights activist (who was not herself trans); the judge threw the case out after one day, awarding costs to the defendant. More recently, “gender-critical” feminist Marion Millar was charged under the Malicious Communications Act for potential hate crime. One of her offending tweets was reportedly a picture of a suffragette ribbon, which a complainant had argued was a noose. All charges were ultimately dropped. In both cases, the lengthy process to which the defendants were subjected was a punishment in itself.

Many of these threats to investigate, or unsuccessful charges, make the case that a “hate” crime has been committed — that is, an offence motivated by the plaintiff’s disability, race, religion, sexual orientation or gender identity. (Ordinary crimes, it seems, take an equal opportunities approach.) Hate crime carries an enhanced sentence, but at least — since it involves an actual crime — it is bound by certain legal definitions.

Hate crime’s little brother is a sub-category called “non-crime hate incidents,” which can’t be prosecuted. For someone on the wrong end of an accusation, however, it can be very uncomfortable. Although the public collectively consents to the police holding power, we have little say as individuals in how that power is used over us. Police activity can be a factor in us losing our livelihoods or our liberty. And, despite not being a crime, a “non-crime hate incident” can go on your record and potentially show up on enhanced DBS checks. It might close off certain job opportunities. To better understand the offence, I turned to the West Yorkshire police website, where the Hate Crime Co-ordinator PC Emma Harrison explains it via video:

“A hate incident can be any incident that the victim or any other person perceives to have happened to a person as a result of their faith, their race, their sexual orientation, their disability. It doesn’t have to be a criminal offence. As the definition says it can be any incident, so it can be perhaps just the way that somebody looks at you or it might be something that somebody says to you that might upset you. It literally can be anything at all that you feel is there as a result of something about you, something very personal to you, it might be the colour of your skin, it might be a disability that you have, and it doesn’t even need to be a disability that can be seen.”

Around 120,000 such offences were recorded between 2014, when the College of Policing brought in the “non-crime hate incident” guidance, and 2019. Of course, it is often sensible for police to keep records of especially upsetting or threatening behaviour that nevertheless misses the threshold for criminal prosecution. But the net here is cast extremely wide, and could easily include a legitimate personal opinion that someone else simply doesn’t like. The “non-crime hate incident” exists entirely in the perception of the allegedly aggrieved party.

It seems chilling that “any incident” — including “perhaps just the way that somebody looks at you” — can potentially land an individual with a police record, not least because “looks” are frequently open to misinterpretation. If you are deemed the perpetrator, there is currently no evidential means by which you can overturn the ruling, save for an expensive and drawn-out judicial review. As the former director of public prosecutions, Ken Macdonald, wrote recently: “This power has real world consequences. We need hardly imagine what an HR manager would make of a job applicant with a police history of hate.”

A world in which self-described victims cannot be challenge is a dangerous one. The police’s desire to semaphore its wholehearted belief in the testimony of alleged victims, before investigating any actual evidence, was a key factor in the Met’s catastrophic Operation Midland. For nearly a year and a half, they pursued a highly energetic investigation into an alleged VIP sex ring on the basis of luridly fabricated evidence from the fantasist and paedophile Carl Beech, anonymised as “Nick”. His allegations resulted in the baseless persecution of both a former Home Secretary, Lord Brittan, and a former Chief of the Defence Staff, Lord Bramall.

One of the glaring mistakes of that investigation occurred when one senior officer abandoned all rules of due process publicly to declare “Nick’s” allegations “credible and true”. They were both incredible and false. The assertion flew directly in the face of the eighth “general instruction” of British policing: that police should “refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.”

Leon Brittan died in 2015 without knowing his name had been cleared. The usual apologies were made by Dame Cressida Dick. And yet the same principle of “guilty if accused” has somehow been allowed to spread quietly in the thicket of “non-crime hate incidents.”

It is a tenet of our democracy that other people are allowed to say things with which we do not agree, and might even find offensive. The mission creep of the UK police force — which now risks effectively handing out police records to a growing pool of law-abiding citizens — is worrisome not only for the public at large, but also for the force itself. And it comes at a bad time: in what should be serious cause for concern, the October YouGov poll mentioned earlier also found that more people (48%) were now “unconfident” of the police’s ability to solve crime in their local area than were “confident” (43%).

If the general public sees more individuals being hounded and investigated for opinions which many of them may hold, while the conviction rate for high-harm offences such as knife crime and rape remains dismal, they may well conclude that the police service is no longer set up to serve the best interests of ordinary citizens.

That bodes ill for the co-operative model which has broadly served the UK well for so long. The best of police officers understand this instinctively, as did the “general instructions” from 1829, which saw much of this coming, in rule five, which says that the force should “seek and preserve public favour, not by pandering to public opinion; but by constantly demonstrating absolutely impartial service to law.”

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Jenny McCartney is a journalist, commentator and author of the novel The Ghost Factory.

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