Is the policing of non-crime hate incidents (NCHIs) an Orwellian outrage or an essential tool of modern law enforcement?

What exactly are NCHIs?
The Home Office describes them as incidents "that could escalate into more serious harm or indicate heightened community tensions, but which do not constitute a criminal offence". So police in the UK keep records of all reported incidents – or alleged incidents – which fall below the threshold of a crime, but which are perceived by the person reporting it to be "motivated – wholly or partly – by hostility or prejudice towards persons with a particular characteristic" protected by hate crime laws: race, religion, sexual orientation, disability, transgender identity. An example might be someone using derogatory language towards a politician on social media, based on their race or religion. These incidents are collected and collated by police for intelligence and "community engagement" purposes.

What is the origin of NCHIs?
Their genesis was in Sir William Macpherson's 1999 inquiry into the racist murder of the Black teenager Stephen Lawrence in 1993. One of the issues in the case was the Metropolitan Police's reluctance to discern a racist motivation, or to record racist crimes generally. Macpherson called for the creation of "a comprehensive system of reporting and recording of all racist incidents and crimes". His view was that racist incidents should be recorded because they can lead to crimes; Lawrence had been subjected to racial taunts. He suggested that the criteria for recording these, known as the Macpherson principle, is that "a racist incident is any incident which is perceived to be racist by the victim or any other person". (He didn't suggest that all such incidents were racist, but that it was best to record and investigate them as such.) Initially, there was no basis in legislation for NCHIs: from 2014 police forces relied on guidance from the College of Policing, which had no legal force. But in 2023, the Home Office issued a new Code of Practice. All 45 UK police forces now record NCHIs.

Why is this controversial?
NCHIs result in police records for people who have committed no crime. Anyone can report anyone for anything perceived to be hateful. As a result, they have often been described as Kafkaesque and Orwellian, or as a kind of "pre-crime", as seen in Philip K. Dick's sci-fi story "Minority Report". Until recently, there was no need to provide objective evidence. In one important case, Harry Miller, a former policeman who had tweeted repeatedly that trans women were not real women, was visited at work by a Humberside police officer who later said to him: "I need to check your thinking", warning that his behaviour could escalate into a crime. Many of the cases are absurd. Norfolk police recorded an NCHI after a man called a Welshman a "sheepshagger". Two girls at a secondary school were recorded for saying that one of their fellow pupils "smelled of fish". A solicitor tweeted that her cat was a Methodist and got a colleague to make a complaint; it was duly logged.

What practical effects do they have?
Those complained about are not necessarily even informed of the NCHI against them. But once reported, "they sit for ever against the names of the alleged perpetrators without any real investigation or right of appeal", complained the former director of public prosecution, Ken MacDonald. "We need hardly imagine what an HR manager would make of a job applicant with a police history of hate." (They can be revealed in enhanced criminal record checks.) NCHIs can clearly interfere with freedom of speech. And they take up quite a lot of police time. The UK's police forces logged more than 13,200 incidents in the year from June 2023 to June 2024 – taking perhaps 60,000 hours.

So how can they be defended?
Those who support them believe that recording NCHIs is vital to effective policing. A Home Office source said that they "help the police to build an intelligence picture around community tensions in order to map trends". Danny Stone, chief executive of the Antisemitism Policy Trust, added that "victim-led hate reporting has had significant and important positive impacts for police, and communities, in diagnosing harm, extremism, and failing integration or community-cohesion efforts".

What is the law surrounding NCHIs?
Harry Miller sued the College of Policing, and the Court of Appeal found, in late 2021, that the NCHI regime was in some respects illegal. The police have the power to record and retain a wide range of information, as they do with all kinds of intelligence (they also record, for instance, "non-crime anti-social behaviour incidents"). But the court found that the college's guidance could have a "chilling effect" on free speech, and so represented an interference with Article 10 of the European Convention right to freedom of expression. It also complained that the guidance said nothing "about excluding irrational complaints, including those where there is no evidence of hostility". It asked for revisions, and this led to the Home Office issuing a Code of Practice.

Is the new code better?
It sets a higher threshold, stating that NCHIs should only be recorded against individuals if there is "a real risk of significant harm" or crime. But problems remain: the police inspectorate HMICFRS found that 25% of recent NCHIs and hate crimes were wrongly recorded. Police reported being confused by attempts to train them in the code; many still struggle to distinguish between a crime and an NCHI. This confusion is clear in the most famous recent case. The Telegraph journalist Allison Pearson said that Essex Police visited her in November, wishing to record an NCHI against her (because on X/ Twitter she had mistakenly described two protesters as "Jew haters"). Essex Police denied it was an NCHI case, saying Pearson had been investigated for a public order offence. Either way, the case was dropped after an outcry.

What is a hate crime?
In England and Wales, there are two main types of hate crime. There are the "stirring up" offences: since the 1970s, "incitement to racial hatred" has been a crime – for instance, distributing racist material or spreading inflammatory rumours about racial groups. Later laws criminalised incitement on grounds of religious and sexual identity. Secondly, there are the "aggravated offences", in the Crime and Disorder Act 1998. Many crimes – assault, criminal damage, harassment, public order offences – can be charged as aggravated crimes, attracting higher sentences, where there is evidence that they were motivated by hostility based on race, religion, disability, sexual orientation or transgender identity (or "perceived" race, religion etc.). In Scotland, all hate crimes were consolidated into one Hate Crime and Public Order Act, which came into force last year.

Policing speech and expression is often controversial and complex. In principle, the bar for criminality is set high. Shouting degrading racial abuse in the street is usually an aggravated breach of the Public Order Act 1986, which forbids "threatening, abusive or insulting" behaviour. But a preacher who "misgendered" a trans woman – called her a man – had his conviction under the same law quashed, on free speech grounds.

He played a crucial role in Donald Trump's election victory; he has launched scathing attacks on the UK's Keir Starmer; and now, Elon Musk is meddling in our politics too, said Hannes Niemeyer in Frankfurter Rundschau (Frankfurt). Ahead of Germany's federal elections in February, the billionaire has been using his X/Twitter site to urge people to vote for the far-right Alternative for Germany (AfD). But what has really enraged Germany's political classes is an opinion piece he wrote in the Sunday edition of Die Welt, in which he described the country as on "the brink of economic and cultural collapse". "The description of AfD as far-right is made obviously false simply by noting that Alice Weidel, the party leader, has a same-sex partner from Sri Lanka!" he added. "Does that sound like Hitler to you?" A fierce backlash ensued: Die Welt's opinion editor resigned, and Musk was subjected to a barrage of cross-party criticism. But it hasn't put him off: on the contrary, he has stepped up his attacks on Chancellor Olaf Scholz and other establishment figures.

Musk is "the greatest entrepreneurial genius of our time", said Jan Philipp Burgard in Die Welt (Berlin): his innovations, built on a "radical analysis of the status quo", have "revolutionised the payment, automotive and space industries". And his diagnosis of Germany's ills isn't far wrong: we are indeed in an "economic and cultural crisis", owing to the misguided energy, migration and social policies initiated by Angela Merkel and largely continued by Scholz's disastrous "traffic light" coalition. But his claim that only the AfD can save us is "fatally wrong". This is a party that wants to take Germany out of the EU – a crazy idea for an economy so heavily reliant on EU exports. It wants to realign Germany with Russia, at the likely expense of its ties with the US and its international credibility. As for its plan to "remigrate" millions of people, that simply doesn't hold water.

Still, you don't have to agree with Musk to defend our right to publish a piece by him, said Veronika Grimm in the same paper. His Tesla car firm has a huge factory near Berlin, where the AfD is second in opinion polls. That his piece triggered such a furore is a sad indictment of free speech today.

Musk may have interesting things to say, said Meredith Haaf in Süddeutsche Zeitung (Munich), but all he gave us in his opinion piece were "pessimistic platitudes" and all-too familiar denials of the AfD's xenophobia.

And his calls for less regulation and bureaucracy were plainly designed to boost his own business interests, said Stefan Fries on Deutschlandfunk (Berlin). Yet it was the Axel Springer group, which owns Die Welt, that allegedly approached him to write the piece in the first place. Why? Because Springer has been expanding into the US and sees Musk as vital to its interests there. So yes, for Die Welt to give house room to Musk's musings was a "journalistic error and a transgression"; but on the upside, it has sparked a debate about the cosy relationship between politics and business that is poisoning our democracy.

And nobody typifies this relationship more than Musk, said Lea Fauth in Die Tageszeitung (Berlin): he's the living embodiment of "personal profit, close contacts in politics, and massive influence on public opinion", yet he's lauded as an "anti-establishment" hero. No serious newspaper should publish anything by such a man, one notorious for spreading disinformation and "fake news" online.

Let's not over-dramatise, said Beatrice Achterberg in Neue Zürcher Zeitung (Zurich). Have those who see Musk's opinion as a sign of democracy's demise forgotten that the US businessman George Soros urged voters to back pro-European parties in 2019's EU elections? Or that Germany's Die Zeit published a piece by Vladimir Putin as recently as 2021? The fact is, it's completely normal for German newspapers to run guest articles by high-profile figures. As for the AfD, for too long it has benefited from being treated as a pariah: doing so has simply burnished its anti-establishment credentials. So to go on trying to silence those who support the party will only serve to aid its cause further. You could say Musk has done us a favour.

The actor Jesse Eisenberg's mother was a professional clown, yet he was an anxious, unhappy child who missed a lot of school owing to mental health problems, says Olivia Ovenden in GQ. At the time, he couldn't see why other children didn't share his anguish. "It was mystifying to me why we weren't all crying all day long, because it seemed like the world is so sad and scary." He would look at his peers and wonder: "How are they existing? Don't they know school is tomorrow as well?"

But he learnt to use humour to protect himself, and he assumed that everyone else was also telling jokes to mask their pain. Then he met Ricky Gervais. He asked him: "Are you depressed? No? Well then, how are you funny? Is it that you're self-conscious? Is it that you hate yourself? And he goes, 'No, it's none of those things. I really love making jokes, and I love being around people who are making jokes.'" Eisenberg was shocked. But, he reflects, Gervais's comedy is "tinged with a lot of sadness. So I don't exactly believe him."