The Home Office is a ministerial department of the United Kingdom’s government. The Home Office takes its primary duty as being the safety and security of the country and it’s citizens.
On March 13th, 2023, the Home Office published a draft Non-Crime Hate Incidents Code of Practice on the Recording and Retention of Personal Data, as provided for in the Police, Crime, Sentencing and Courts Act 2022.
This statutory draft code of practice, once in effect, will provide guidance to the police in England and Wales relating to non-crime hate incident (NCHI) recording. It sets out the common-sense and proportionate approach that should be adopted by the police.
The publication of this Code of Practice appears to be in direct response to recent events and controversy surrounding an incident when the purchased copy of a Koran, owned by a 14-year-old autistic child, happened to become smudged and scuffed. According to media reports, the accidental dropping of the Koran was investigated by police as a hate crime and the child was threatened with death.
It is a strange world when an incident of clumsiness by a child leads to outrage of “adults” and investigation by police. However, it did. And a Code of Practice has been issued.
According to the Home Office, the new Code of Practice:
- includes guidance relating to whether and how the personal data of an individual who is the subject of an NCHI report should be processed as part of an NCHI record
- provides detailed information on the right to freedom of expression, and clear case studies to illustrate how this right should be taken into account in the context of NCHI recording
- clarifies that debate, humour, satire and personally-held views which are lawfully expressed are not, by themselves, grounds for the recording of an NCHI
- sets out that a non-crime hate incident should not be recorded if the report is deemed by the police to be trivial, irrational, malicious, or if there is no basis to conclude that it was motivated by intentional hostility
The code also introduces the additional threshold test, which clarifies that personal data should only be included in an NCHI record if the event presents a real risk:
- of significant harm to individuals or groups with a particular characteristic or characteristics
- that a future criminal offence may be committed against individuals or groups with a particular characteristic or characteristics
For the purposes of the code, a ‘particular characteristic’ means race, religion, sexual orientation, disability or transgender identity, as defined in hate crime legislation. This test will enable the police to intervene where necessary to safeguard vulnerable individuals and communities.
The code is subject to the affirmative procedure and will enter into force 31 days after it is approved by Parliament.
Suella Braverman KC (i.e. the government representative in charge of these things) had apparently stated that the UK does not have blasphemy laws and everyone should respect freedom of speech and pluralism. She wrote that ‘The education sector and police have a duty to prioritise the physical safety of children over the hurt feelings of adults. Schools answer to pupils and parents. They do no have to answer to self-appointed community activists.’
Those comments appear to have preceded the release of the new Code of Practice.
It is difficult to be certain what the UK’s general population thinks about this situation. Humanists UK, however, has posted on their website that:
We welcome this draft code of practice. The state has strong interests both in protecting free speech and in preventing harassment, discrimination, and incitement to hatred against people on the basis of their innate characteristics. The code of practice carefully balances these competing needs, considering the motivations behind incidents, their seriousness, and whether debate, humour, or satire are relevant factors.
‘What happened in Kettlethorpe appears to simply have been schoolboy foolishness. As such it never warranted the involvement of the police. We’re pleased that the Government has listened by bringing some much-needed clarity to the table. The police are often put in a difficult position by vocal religious groups in their area demanding action – kowtowing to which only can sometimes only escalate tensions further. We look forward to further action from the Government to make sure that what happened in Kettlethorpe never occurs in a school again.’
Whether “clarity” has been established by this release of a Code of Practice for the documentation of non-Criminal matters by police is something that bears some consideration. Indeed, one wonders how and why people who threaten a child with assault and murder are not the ones considered candidates for investigation of a hate crime. Uttering threats is, after all, not precisely an utterance of affection.
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