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Priti Patel must tread carefully when lecturing police on hate crime

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Any gunslinging sheriff can tell you that if you shoot from the hip you may hit the target but not quite with the precision you wanted. Priti Patel, very much a minister to draw first and ask questions later, is in much this position with her challenge to the police establishment over the weekend on its policy of recording all non-crime hate incidents. Most of what she said is spot-on; but in two respects she may have to think a little more carefully.

The problem with the present police policy, as Matthew Parris trenchantly pointed out in this week’s Spectator, is that even if you never break the law it makes being rude to anyone on social media a risky business. If the victim or anyone else chooses to file a complaint accusing you of a hate crime, you will probably end up with a police record; and this is still true even if the complaint is footling or misguided, or there is not even a hint of criminality in fact. It is all down to the now-notorious semi-official guidance issued by the College of Policing and accepted by all forces: 

'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.'

Following a concerted campaign from, among others, Fair Cop and the Free Speech Union, Priti Patel on Saturday let it be known that in her view this would not do. She would be pressing the College to revise its guidance and drop the official recording of any incident that did not in fact amount to an offence. She clearly meant business: as a Home Office source put it, presumably with her blessing, 'if people are found to have done nothing wrong, the police shouldn't punish them.'

The Home Secretary’s instinct is absolutely correct. There is something very creepy about the state demanding that the police log permanently anything people say, however lawful, merely because someone has complained about it and used the magic word 'hate' or 'hostility'. What's more, it is not as if such recording is harmless. True, there can be no prosecution: but such records can, and regularly do, go on a DBS check, which you need to get a job in education, care or a number of other sensitive areas.

The mandatory recording of all alleged hate incidents, even if otherwise non-criminal, must go. Its history is instructive. It dates from recommendations issued in 2005 by the Association of Chief Police Officers. These were, interestingly enough, probably brought in not so much for operational as public relations reasons: namely, to deflect the fallout from the 1999 Macpherson report on the Stephen Lawrence affair, with its accusations of institutional racism in the Met. 

Today the whole concept of institutional racism is, shall we say, not uncontroversial, having been regarded with some little scepticism in last month’s Sewell report. To continue, on the basis of a supposed need to root it out, to keep tabs on countless people’s otherwise lawful speech without any other justification is completely unacceptable.

There is something very creepy about the state demanding that the police log permanently anything people say

What must also be suppressed is the appearance of allegations of non-criminal speech on DBS checks. True, an employer can if it wishes engage in offence archaeology and refuse to hire if it doesn’t like opinions an applicant has expressed in the past. But this sort of dictatorial behaviour shouldn’t be encouraged, and there is no reason whatever for the state to give it its blessing by providing the details on a form which by law the applicant has to present in order to get the job. 

If freedom of speech means anything, we need to avoid a situation where something you said entirely lawfully, possibly in the heat of the moment and some time ago can blight your employment prospects permanently. If preferring the right to free speech here means that employers in sensitive areas occasionally end up hiring people with unsavoury opinions, so be it: the price is well worth paying.

Nevertheless, Priti Patel needs to tread carefully here. The College of Policing had a point when it said in answer to her statement that police had to be allowed to gather intelligence that genuinely did help the fight against violent crime. Recording someone’s invective against a trans activist simply because it is intemperate and is seen as hostile must be out. But if the invective includes a veiled reference to possible violence, then this should continue, however technically non-criminal, to be noted in the same way as any other veiled gangland threat. Any suggestions to the College must therefore be sensitive to the ordinary needs of police intelligence.

The other hazard is that while she can call on the College of Policing to change its policy, it would be constitutionally difficult for her, or the government, to dictate to it. The College is officially an arms-length body under the aegis of the Home Office; in accordance with the constitutional principle that the police are independent of the administration, it is not obliged to do as she tells it. The Home Secretary needs to accept that the changes she wants may require legislation (a threat of which she can dangle before the College).

Of course, it could be that all this will turn out to be a non-problem. When Harry Miller, the person who was told that he would be given a police record for allegedly transphobic tweets, sued the College of Policing last year, one of the grounds of his challenge was that the recording of non-crime hate incidents was illegal. He lost on that point. But he has appealed, and the appeal was heard last month

The best possible result for Priti Patel would be for the Court of Appeal to take matters out of her hands by allowing the appeal. For once, she might have reason to be grateful for the efforts of activist lawyers to save her constitutional embarrassment and remove a weighty file from her in-tray. Here’s to hoping.

Any gunslinging sheriff can tell you that if you shoot from the hip you may hit the target but not quite with the precision you wanted. Priti Patel, very much a minister to draw first and ask questions later, is in much this position with her challenge to the police establishment over the weekend on its policy of recording all non-crime hate incidents. Most of what she said is spot-on; but in two respects she may have to think a little more carefully.

The problem with the present police policy, as Matthew Parris trenchantly pointed out

Now read on...

Written by

Andrew Tettenborn is professor of law at the University of Swansea

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