The return of “non-crime hate incidents”

Why is the Labour government so determined to crack down on free speech?

I have a tendency to be over-optimistic. In my 2022 book The New Puritans, I wrote about “non-crime hate incidents” and how they were still being recorded by police, in spite of the Court of Appeal’s ruling that they were “plainly an interference with freedom of expression” and direct instructions from the Home Office that the police must stop this illiberal and unethical practice. However, I concluded that ultimately “it seems unlikely that ‘non-crime hate incidents’ will last for much longer”.

Of course I was wrong, because I had not counted on just how authoritarian a new Labour government might be. It was bad enough that the Education Secretary Bridget Phillipson scotched the Higher Education (Freedom of Speech) Act just one day before parliament went into recess - presumably to avoid having to debate the matter - but now the Home Secretary Yvette Cooper has reversed the Conservative’s pledge to limit the recording of “non-crime”. Labour is bringing back this absurd policy, and has convinced itself that this is somehow a progressive measure.

It should go without saying that the police have no business recording “non-crime”, particularly when such records are based on accusations alone (that is to say, the “perception” of the “victim” is what counts, rather than actual evidence of hatred). The Tory government should have eliminated the entire practice in its entirety, but instead decided that such “incidents” ought to stay on record if there was a “real risk of escalation causing significant harm or a criminal offence”. The science fiction writer Philip K. Dick had a phrase for this: “pre-crime”.

So let’s leave aside the woefully inadequate restrictions put in place by the Tories. Let’s also leave aside the obvious point that hatred, along with all other emotions, will never be eradicated through legislation and that the state is wasting its time trying to alter human nature. Let’s focus instead on why the Labour government is so determined to control the speech and thought of its citizens.

How does it help anyone for the name of the schoolboy who accidentally scuffed a copy of the Koran at a school in Wakefield to be on police records? His “non-crime” was duly recorded after the event, but why? Does the government really suppose that this child is one step away from torching a mosque? Even if he had deliberately scuffed the Koran, what has this to do with the police? I don’t much approve of defacing books, but vandalism of one’s own property is a matter for individual conscience.

Of course, Labour will say that the recent riots have proven the necessity for cracking down on the private thoughts of citizens. In truth, these acts of violence are being exploited to justify further authoritarian policies. We have seen how quick our politicians are to seize upon these moments to advance their own goals. The murder of Sir David Amess had precisely nothing to do with social media, and yet politicians immediately began to argue that his death was evidence of the need to curb free speech online. This was grotesque opportunism from a political class that does not trust the public.

According to the Times, Yvette Cooper believes that the Tory’s efforts to curb investigations into “non-crime” was “preventing police from monitoring and identifying tensions and threats to Jewish and Muslim communities that may escalate into violence”. What is the evidence for this claim? Potential terrorists are already on intelligence watchlists. Those branded as “non-criminals” are typically those who are unlikely to break the law. The recording of “non-crime hate incidents” is simply a chilling means to control the parameters of acceptable opinion, to narrow the Overton Window through state intimidation.

Labour hopes to adopt a new definition of “Islamophobia” which claims that it “is a type of racism that targets expressions of Muslimness or perceived Muslimness”. The inelegance of the phrase is bad enough, but the conflation of religion and racism makes no sense whatsoever. If such a definition is to be applied in law, there is little doubt that ridiculing or criticising Islam could be criminalised along with attacks on mosques and Muslims. Given that assault and vandalism is already illegal, what exactly is the purpose of this redefinition other than to limit freedom of speech?

History teaches us a great deal about where this is heading. We know that legal proscriptions against offensive viewpoints do not have a mitigating effect; bad ideas that are driven underground tend to fester and multiply. We also know that laws against offensive speech soon expand to incorporate any viewpoints that are not approved by those in power. In 1644, John Milton published his Areopagitica, a counterblast to the Licensing Order of June 1643 which decreed that all printed texts be passed before a censor in advance of publication. In this essential defence of liberty, Milton pointed out that censors do not “stay in matters heretical” but “any subject that is not to their palate”. Little has changed since then.

Once the state has been empowered to set the limits of speech, to introduce legislation against vague and indefinable concepts such as “hate” or “offence”, the groundwork for future tyranny is firmly established. One thinks of Juvenal’s famous question: quis custodiet ipsos custodes? (“who will watch the watchmen?”). Nobody with any familiarity with the history of authoritarianism would be naïve enough to trust that legally-enshrined speech codes will not eventually be used to curb political opposition.

We already know that before the Tories modified the guidelines “non-crime hate incidents” were being recorded against anyone accused of “hostility towards religion, race or transgender identity”. Given that “hostility” is now commonly deployed as a synonym for “criticism” or “disagreement”, we cannot possibly reach any helpful conclusions from these records. For instance, those who take issue with Critical Race Theory could be accused of “hostility towards race”, even though such concerns are typically based on a belief that people should not be judged by the colour of their skin. Similarly, those who maintain that men should not be in women’s prisons are routinely smeared as “transphobic”, even though their motivation is to preserve important safeguarding measures. How many of these legitimate points of view have been recorded as “non-crime”?  

Due to a lack of transparency in the system, we’ll probably never know. Estimates suggest that since the practice was implemented by the College of Policing in 2014, there have been at least a quarter of a million “non-crimes” recorded by police in England and Wales. We know that this can have an impact on the employment prospects of the accused, particularly if they work in a field that requires DBS (Disclosure and Barring Service) checks. The system of “non-crime hate incidents” gives a green light to anyone with a grudge to exact revenge without having to present any evidence whatsoever for the charge of “hate”.

The threat that “non-crime hate incidents” represent to liberty cannot be overstated. That the Labour government is trying to escalate the practice should trouble us all. The creeping authoritarianism of our times is undeniably picking up pace.