Philip Booth is Professor of Finance, Public Policy and Ethics at St. Mary’s University.

The Times reports today that Priti Patel is to stop police from recording so-called hate incidents that are not crimes over fears that the policy is harming people’s employment prospects and infringing on free speech.

Currently the police are allowed to keep records on those accused of non-criminal incidents. However, Patel has “expressed concern” that these “can ruin lives when they are disclosed as part of vetting processes such as the Home Office’s disclosure and barring service.”

Some of the problems with hate crime legislation do not just arise from the potential disclosure of incidents in vetting, nor prosecution under the Equality Act 2010, but from police investigations which can easily be triggered. Three cases illustrate the problem.

In the first, a Baptist Church in Norfolk displayed a poster suggesting that, if you did not believe in God, you would go to hell. The bottom of the poster depicted flames. Amusingly, adjacent to the poster was a notice offering people a very warm welcome in the church. 

This is standard Christian teaching for some (though not for all) Christian denominations. Nevertheless, a 20-year-old complained to the police stating that the poster of hell was offensive to non-Christians, and that it was his “understanding that Christianity is inclusive and loving in nature.” The police registered the poster as a “hate incident”. 

The police stated: “National guidance required us to investigate the circumstances and the matter has been recorded as a hate incident. Having spoken to the pastor of the church, it has been agreed the poster will be taken down.”

There seems to be no doubt that the police believed that they were required to register the poster as a hate incident, that they visited the pastor and that the visit caused the poster to be removed.

In the second case, Oluwole Ilesanmi was arrested and questioned by the Metropolitan Police for alleged hate speech crimes while street preaching. He was then released and awarded £2,500 compensation for wrongful arrest and humiliating and distressing treatment.

The third example involves Sarah Phillimore, a barrister, who was reported to the police for a hate incident after she made comments on social media that referred to male offenders who claimed to be transgender and who were housed in women’s prisons as “men”.

In addition to the direct impact of police involvement on free speech in these cases, there will be an indirect effect. Few people wish to go through a police investigation, and citizens will be put off from speaking freely because they are worried about the consequences.

It is interesting to ponder how that doyen of modern-day social liberalism J S Mill would have determined when free speech was legitimate or had to be constrained. He would have said that it was unacceptable for the law to prevent any individual or religious group talking publicly about “eternal damnation” except in very limited circumstances, such as when the term is used as a deliberate part of a process of mental intimidation of an individual. The limited circumstances are an important exception and a legitimate target of the law. And, indeed, the prosecution of hate speech seems to be determined by the right principles.

A hate crime is defined by the Crown Prosecution Service (CPS) in the following way:

“The term ‘hate crime’ can be used to describe a range of criminal behaviour where the perpetrator is motivated by hostility or demonstrates hostility towards the victim’s disability, race, religion, sexual orientation or transgender identity…A hate crime can include verbal abuse, intimidation, threats, harassment, assault and bullying, as well as damage to property.”

This is a reasonable definition. The CPS advice also sets a high hurdle for a successful prosecution.

The problem is not with the concept of hate crimes as such but, as Patel has noted, the recording of hate incidents. Incidents are recorded as hate incidents by the police, and have to be investigated as such, if, in the opinion of the alleged victim or any other person, an incident was motivated by hatred or prejudice based on one of the stated characteristics in the Equality Act. 

This can lead to controversial but reasonable opinions being the basis of a visit from the police or even arrest. Quite ordinary people have suffered from such visits and the recording of hate incidents intimidates citizens into not expressing reasonable views. 

It is easy to see how the threat of the reporting of a hate incident may stifle free speech and debate. Indeed, in two of the aforementioned cases, such action led to the cessation of the activity. 

This was despite the fact that the complainant in the first case was an atheist and was surely not intimidated by the poster. Many people will simply not wish to encounter the police in the course of their daily lives and they should not feel inhibited from speaking freely for fear that they might do so. Patel is right to take action.