UK police’s speech-chilling practice of tracking ‘non-crime hate incidents’

Editor’s note: This is Part 1 of a two-part series on the U.K. police tracking so-called “non-crime hate incidents.”

Lawmakers in the United Kingdom are considering a revised set of guidelines for police officers to use when tracking “non-crime hate incidents.” In a welcome gesture, the guidelines direct officers to give “special regard” to freedom of expression. 

Unfortunately, these words are little more than that — a gesture. Under the new guidelines, police would still be authorized to keep a database of individuals accused of uttering anything “motivated by a hostility or prejudice” against protected characteristics.

This is in spite of the fact that no empirical evidence exists to suggest that such a pernicious invasion on civil liberties actually prevents hate crimes — indicating that the entire purpose of the practice is to stifle opinions the government dislikes.

Innocuous statements may be reported, like a soccer fan sarcastically asking a referee, “Are you blind?” Even worse, serious and contentious topics, such as gender identity, are the explicit targets of this reporting mechanism.

From the suppression of anti-monarchy protests at this weekend’s coronation ceremonies, to this baseless recording of “non-crime hate incidents,” the government of the United Kingdom is once again demonstrating how susceptible free speech rights are to governmental abuse in the absence of strong protections like those of the First Amendment in the United States.

What is a ‘non-crime hate incident’?

In 2014, the U.K. College of Policing — a quasi-governmental organization tasked with issuing guidance to police officers — released the wide-ranging and influential “Hate Crime Operational Guidance.” 

The U.K. has long recognized hate crimes, but this guidance was unique in that it codified for the first time the concept of “non-crime hate incidents.” As defined by the guidance, an NCHI is “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility, or prejudice based on a person’s” actual or perceived “race, religion, sexual orientation, disability, or transgender” status.

The chilling effect cannot be overstated. It is no wonder that a British judge compared the practice to one of the “Cheka, Gestapo, or Stasi.”

Under the 2014 guidelines, police are required to log any NCHI brought to them by a member of the public — no questions asked. The guidance states, “The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required.” In other words, police have no obligation to investigate the veracity of the claims. In many instances, police do not even inform those accused of committing an NCHI of the complaint against them.

Moreover, under the Police Act of 2014, police are required to release any information “the chief officer reasonably believes to be relevant for the purpose” of a background check. In other words, police may release NCHI logs to prospective employers performing background checks on prospective employees. How often police actually relay this information is unclear, but the threat is enough to spur a profound chilling effect.

From 2014 to 2019, police in 34 of 43 forces in England and Wales logged 119,934 NCHIs.

To reiterate, under the current guidelines, not the proposed guidelines, a person merely has to perceive that speech is hateful — no matter how unreasonable that perception is, and without a need for any evidence of whether the speech even occurred — in order for it to be recorded. The police are under no obligation to inform an accused individual that their name has been recorded. Even if police do inform a person that they have been accused of committing an NCHI, that person has no means of appeal, no chance to submit evidence, and no hope of the record being expunged. Regardless of whether one is aware that they have been accused, their name may very well appear on a background check to employers as having been accused of committing a “hate incident.” Due process be damned.

The chilling effect cannot be overstated. It is no wonder that a British judge compared the practice to one of the “Cheka, Gestapo, or Stasi.”

Origin and efficacy of NCHIs

Although nearly two decades later, the 2014 guidelines were created in response to the 1993 murder of Stephen Lawrence, a black man, in a racially-motivated crime. Lawrence’s murder sparked a mood change in the U.K., with many Britons demanding better accountability from police in preventing hate crimes.

In 1999, a special commission released the “Macpherson Report.” The report offered 70 recommendations to prevent future hate crimes, one of which insisted that police forces implement “measures to encourage reporting of racist incidents.”

As summarized by court documents, Paul Giannasi, police superintendent and manager of the U.K. government’s hate crime program, explains that “often low levels [sic] incidents are pieces in a local jigsaw of information and intelligence that enables policing to be aware of community tensions and take action to prevent minor issues or a series of minor issues escalating into something more serious.”

Such a response is not unusual. Tragedies are often followed by a public outcry for greater security, a push that frequently takes the form of restrictions on civil liberties. Think, for example, of calls to implement a state-mandated time delay on live-streaming after a shooter in Buffalo broadcast his attack.

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Beyond infringing on civil liberties — which is objectionable in itself — these practices quite often don’t achieve their intended outcome. This is precisely the case with the tracking of NCHIs.

Police have provided no empirical evidence whatsoever that recording NCHIs prevents crimes. In 2020, a British advocacy group filed Freedom of Information requests to every police force in England and Wales, the two U.K. countries controlled by the 2014 guidance. Not a single police force of the 43 questioned could give a single example of a crime that had been prevented by recording NCHIs.

Of this finding, British scholar Dr. Radomir Tylecote writes, “That no police force could provide any data to substantiate the rationale for recording NHCIs suggests that they do not take seriously the claim that NCHIs prevent escalation and regard this policing of lawful speech as legitimate in its own right.” In other words, the government’s end goal seems to be to chill speech it disfavors.

Certainly, it would be difficult to prove that such a system prevents hate crimes. Still, the rate of “hate crimes,” which the U.K. defines far more broadly than does the U.S., has been steadily and dramatically increasing in the U.K. over the past decade, casting doubt on the plausibility that recording NCHIs reduces crime. In 2013, the year just before police began tracking NCHIs, the U.K. Home Office reported roughly 45,000 hate crimes. In 2021, this figure was 124,000.

The false dichotomy of free speech versus equality

A common critique of strong free speech protections proceeds like this: Hate speech is clearly at odds with the goal of equality. Therefore, we can promote equality by banning hate speech. In other words, this argument claims that free speech and equality are competing and incompatible interests.

This claim is problematic for at least two reasons. First, it doesn’t hold up theoretically; upon reflection, it isn’t clear that banning hate speech would further the goal of equality. Second, attempts to police hate speech prove unproductive at best and counterproductive at worst.

To briefly elaborate on the first point, consider these three possible implications of banning hate speech, supplied by FIRE Senior Fellow Nadine Strossen:

1. Hateful rhetoric will be driven underground. This (a) reduces the opportunity to discuss and dissuade those who believe in hateful tropes, and (b) undermines police efforts to thwart potential violent hate crimes.
2. In order to avoid prosecution, purveyors of hate will water down their rhetoric, making their statements more appealing to a wider audience than before. Alternatively, they might “wave the ban like a bloody shirt,” posing as victims. As FIRE Senior Fellow Jacob Mchangama writes, bans may very well “turn[] monsters into martyrs.” Moreover, bans might very well enhance conspiracies pushed by many hate groups.
3. Hate speech will become like “forbidden fruit,” gaining more attention because of its elusive status.

As for the second point, efforts to ban hate speech consistently fail in practice and often backfire. Returning to the British NCHIs, they don’t work. In the United States, such a practice would surely fail a court’s strict scrutiny test, most of all because the practice does not directly advance the government’s interest.

Although our First Amendment generally grants Americans stronger protection against incursions to civil liberties than do laws in Europe, many Americans still push ineffective methods of policing speech.

Nonetheless, plenty of people in the United States still endorse misguided efforts to censor hate speech. To name just one, many colleges and universities employ “Bias Response Teams” which exist to combat incidents similar to NCHIs. 

FIRE’s Greg Lukianoff and Adam Goldstein wrote in 2021 about the pernicious threat to democracy of BRTs, which they call “censorship with extra steps.” BRTs, they explain, are “specialized departments tasked with receiving, investigating, and resolving accusations of bias on campus.” Their effect is to “establish a kind of ‘orthodoxy,’ a series of norms that must not ever be challenged.”

Although our First Amendment generally grants Americans stronger protection against incursions to civil liberties than do laws in Europe, many Americans still push ineffective methods of policing speech. It is for this reason that FIRE fervently defends the rights of all Americans to free speech.

In part two of this series, I will recount the events that led to the proposed reforms, and further explain why these reforms hardly improve the state of free speech in the United Kingdom.