The longer it continues in office, the more reactionary and beholden to vested interests this government turns out to be. So far it has surrendered to the establishment on immigration, on the EU, and on higher education (blocking any awkward notions of making administrators respect free speech). Yvette Cooper, the Home Secretary, now appears to believe it is the police establishment’s turn to be appeased: witness the reports this week about the recording of non-crime hate incidents, or NCHIs.
Until about three years ago, NCHIs were recorded by the police in vast numbers, largely against people who spoke out of turn online, however lawfully, and had a complaint made against them. These notes were not disclosed to the subject, were kept on police records indefinitely and on occasion disclosed to potential employers and others seeking enhanced criminal records checks.
All that was needed, according to guidance from the College of Policing, was behaviour perceived by a victim, or anyone else, to be motivated by hostility or prejudice to a given group. Such records could be handed out to almost anybody, from a private citizen tweeting in a way that offended a neighbour to a semi-public broadcaster (Darren Grimes famously found himself in the NCHI cross-hairs in 2020 for conducting a YouTube interview with David Starkey).
In 2021 the Court of Appeal – on an appeal by ex-policeman Harry Miller, who had been handed an NCHI for social media posts to which a transgender woman had objected – saw the threat to free speech that the wholesale making of such reports posed, and rightly demanded limits on them. Even with this, however, NCHIs still remained open to serious abuse. In December that year the then Home Secretary Priti Patel intervened and bluntly requested a stop to the recording of incidents based on nothing more than offensive words that did not amount to a crime. This policy was confirmed last year by Patel’s successor Suella Braverman. Incidents should be recorded, she said in revised guidance, only where they were ‘clearly motivated by intentional hostility’ and risked ‘causing significant harm or a criminal offence’. The intervention seems to have worked: in 2022, whole swathes of NCHIs were duly deleted.
It appears the new Home Secretary is not happy about this. She is reported to be considering reversing Suella’s guidance and once again allowing police to build an enormous database of NCHIs, giving as a reason the need to gain sufficient background information to deal firmly with anti-Semitism and Islamophobia. True, in announcing this intention the Home Office also paid formulaic lip service to the need to safeguard free speech. Nevertheless, this development is disconcerting.
To begin with, although the Home Office justifies the potential change by the need to prevent ‘serious crimes’, this is disingenuous. It seems fairly clear, reading between the lines, that what is intended is quite simply a return to the wholesale recording of anything the police choose to regard as being of interest. This is for two reasons. One is that if this is not the case it’s a bit hard to see why any change is required: Suella’s own policy of 2023 already allows NCHIs to be entered where there is a clear likelihood of later criminal conduct. The other is that, as the FSU has pointed out, it’s almost impossible to point to a single case of a physical crime actually prevented by pre-emptive recording of NCHIs. Yvette Cooper is a very experienced politician: it’s highly unlikely she does not know this, even if she has not been briefed to this effect by her officials.
Secondly, the reference to Islamophobia (anti-Semitism here looks suspiciously like an equal and opposite makeweight) may well amount to a discreet hint to police that they will have the Home Secretary’s support if they make life more difficult for outspoken public critics of Islam. Besides making life easier for chief constables with community leaders to keep on-side, such a move would have the additional advantage for the government of reassuring Muslim Labour voters who might be thinking of moving their allegiance elsewhere.
Thirdly, the way in which Yvette Cooper’s intentions have been made clear, with references to the need to strengthen hate crime protections and protect communities from abusive and hateful comments, further suggests that she wants to show that she is very much on message with the government’s ‘think before you post’ attitude, and wholeheartedly endorses its policy of tough measures against anyone guilty of writing or relaying off-colour posts on social media.
We shall of course have to see what new guidance emerges to replace Suella’s, and how much change takes place in practice. Unfortunately, however, the omens for free expression are not good. Watch what you say, her new message will probably read. Whether you know it or not, you may end up with a police record.
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