Hidden hate? Hate crime and NCHIs
Cathál MacPartholán considers non-crime hate incidents (NCHIs)
The law identifies five types of hate crime – based on race, religion, disability, sexual orientation, and transgender identity. National Hate Crime Awareness Week in October 2021 highlighted these five types of hate-based crime. Shifting patterns of immigration, religion, race and social norms, have converged to enable us to embrace much more open discussion on these important issues. There are, of course, also the sentencing aspects when a crime is aggravated by hate. More recently, we have also seen the emergence of non-crime hate incidents” (NCHIs).
The Law Commission
An important contextual background of examination into hate crime was the Law Commission Consultation Paper No 213, “Hate Crime: The Case for Extending the Existing Offences.” The Ministry of Justice asked the Law Commission to look into;
(a) extending the aggravated offences in the Crime and Disorder Act 1998 to include where hostility is demonstrated towards people on the grounds of disability, sexual orientation or [trans] gender identity;
(b) the case for extending the stirring up of hatred offences under the Public Order Act 1986 to include stirring up of hatred on the grounds of disability or [trans]gender identity (https://www.london.gov.uk/sites/default/files/Hate%20Crime%20LawCom%20slidesGLA.pdf).
The recommendations set out by the Law Commission’s Consultation paper were endorsed in the statutory provisions of ss.29-32 Crime and Disorder Act 1998. That created specific racially or religiously aggravated offences, which have higher maximum penalties than the non-aggravated versions of those offences – and, more recently, in s.66 Sentencing Act 2020, which applies where a court is considering the seriousness of an offence which is aggravated by hostility based on the five types of hate.
Furthermore, the inroads to make provisions in law for hate crimes can be demonstrated in the CPS guidance. Prosecutors are reminded to read the guidance within the “Public Statement on Racist and Religious Hate Crime,” as it provides greater detail on some of the key areas of the policy. The “Director's Guidance on Charging” requires offences classified as hate crime under CPS policies to be referred to a prosecutor for early consultation and a charging decision, whether admitted by the suspect or not (https://www.cps.gov.uk/legal-guidance/racist-and-religious-hate-crime-prosecution-guidance).
The legislation regarding hate crimes is both necessary and proportionate in society. However, there have recently been higher recorded rates of “non-crime hate incidents” (NCHIs), pursuant to the Hate Crime Operational Guidance 2014 (HCOG). This raises some interesting questions.
Where it is established that a criminal offence has not taken place, but the complainant or any other person perceives that the incident was motivated wholly or partially by hostility, it is to be recorded and flagged as a non-crime hate incident (NCHI). (https://www.app.college.police.uk/app-content/major-investigation-and-public-protection/hate-crime/responding-to-non-crime-hate-incidents/).
However, there are legitimate questions as to the checks and balances on recording matters as NCHIs, and whether this option (while entirely proportionate in many cases) may be disproportionate or not suitable, for a range of reasons, in others. There are also questions as to the extent to which a Defendant in an NCHI case may make representations, or offer any alternative explanation for what happened if they wish to do so. Additionally, Lord Judge CJ also provided some helpful criteria as to what constitutes free speech (under common law and ECHR 1950 Article 10) in Chambers v DPP  1 WLR 1833, at -.
A disproportionate response in a case where there has been a genuine misunderstanding may adversely impact on either an individual’s human rights, e.g. by inhibiting free speech, or, by the law of unintended consequences, exacerbating levels of hostility and tension in society (see Miller v College of Policing and Humberside Police  EWHC 225 (Admin)).
At the core of the Miller case (which is being appealed) is the role of policing and the police responding to reports of hate incidents which are not deemed to be behaviour contrary to the criminal law. The conclusion of the case was that the mere recording of a non-crime hate incident, pursuant to HCOG did not interfere with Mr Miller’s Article10 rights, as it had no real consequences for him (Knowles J, at 175). The submission made by Mr Miller, that Humberside Police overacted and contravened Hate Crime Operational Guidance 2014 (HCOG), was rejected. This case (and the ongoing appeal) raise some genuinely important questions of both public and criminal law.
In terms of hate crime based on race and/or religion, the recent joint statement by the CPS on definitions is clear, and is very much aligned with that of the National Police Chiefs' Council (NPCC), in that hate crime is:
“Any incident/crime which is perceived by the victim or any other person to be motivated by hostility or prejudice based on a person’s race or perceived race”
“Any incident/crime which is perceived by the victim or any other person to be motivated by a hostility or prejudice based on a person’s religion or perceived religion” (https://www.cps.gov.uk/publication/statement-cps-and-npcc-hate-crime-october-2021).
However, there is still much to be clarified in terms of hate law overall, and NCHIs.
It is immediately apparent that the Miller case (and ongoing appeal) has not necessarily conclusively clarified the practical position for the use of Hate Crime Operational Guidance (HCOG) and the recording of NCHIs. Until the appeal is resolved, it is likely that there will be ongoing discrepancies, and possibly disputes, as to the consistency of application of NCHI in police records.
In any society, there will of course always be the few unctuous members whose asinine behaviour is offensive. In many cases, the facts are clear, and speak for themselves. However, caution is needed in the practical application of NCHIs in a street policing context, to ensure that incidents are being properly and fully recorded, and that NCHIs are not becoming a shorthand for issues which may be “aggravated” – or, on the other hand, which may in fact be better categorised as anti-social behaviour, public order matters, matters resulting from underlying vulnerabilities or mental health matters, or, occasionally, genuine misunderstandings suitable for No Further Action.
As seen in Chambers v DPP, it is possible for comments to be misunderstood or misconstrued, and an individual should always have the opportunity to explain what they meant (or did not mean), and to make representations before any kind of finding is recorded against their name.
To summarise, the legislation in the Crime and Disorder Act 1998 and Sentencing Act 2020 has great validity in the context of all five types of hate-based crime. When the accused has proper representation and full open disclosure in a court of law, a reasonable person can trust the impartial administrators of justice to find the correct outcome to accusations of hate crime. However, increasing use of NCHIs instead is a worrying trend – especially in the context of a lack of legal clarity and certainty as to when they are appropriate. Further checks and balances would also be helpful.
The current legislation safeguards on hate crime articulate a sound set of values, and provide the capacity to approach hate crime incidents in a proper way – and it would be helpful for the legal position on NCHIs, and when they should be applied, to be made equally clear, for the benefit of society as a whole, and all individuals.