The guidance has been overhauled in response to a Court of Appeal ruling.

The College has advised officers not to get involved in social media rows that are not motivated by hate.

The new advice is designed to reduce unnecessary recording of “non-crime hate” just because an incident is reported.

It will be in place until the Home Office publishes a new code of practice for officers to record and retain personal data relating to non-crime hate incidents. The code will be subject to parliamentary scrutiny and is expected to be published by the Home Office later this year.

There were 124,091 hate crimes recorded by the police in England and Wales in year ending March 2021.

The update – which will be formalised by the Home Office later this year - follows a case brought by former officer Harry Miller against Humberside Police.

Mr Miller had been visited at work in January 2019 over claims of “transphobic” comments on social media.

An anonymous member of the public complained about Mr Miller’s tweets, leading Humberside Police to record the complaint as a “hate incident”.

Mr Miller, from Lincolnshire, challenged Humberside Police’s actions and the College of Policing’s guidance at the High Court and the Court of Appeal which uphelld two of the five grounds he based his case on. 

He claimed the force’s actions had been disproportionate and violated his freedom of speech.

The Court of Appeal found that the recording of non-crime hate incidents is lawful, provided that there are robust safeguards in place so that the interference with freedom of expression is proportionate. The college says "the new interim guidance has been introduced to ensure those safeguards are as robust as possible."

The latest guidance sets out: 

• A non-crime hate incident should not be recorded where it is trivial, it is irrational or there is no basis to conclude that an incident was motivated by hostility.  
• Individuals who are commenting in legitimate debate, for example, on political or social issues should not be stigmatised simply because someone is offended. 
• If a record is made it must be done in the least intrusive way possible, for example it may not be necessary to record the name of an individual or the location of an incident.  

The original hate crime guidance was introduced to help officers and staff better understand the law and take into account changes in recording practice, following recommendations from the Stephen Lawrence Inquiry Report around the recording of non-crime hate incidents.

Andy Marsh, CEO of the College of Policing, said: “While we work to protect the most vulnerable in society, we also have a responsibility to protect freedom of speech. This updated guidance puts in place new safeguards to ensure people are able to engage in lawful debate without police interference. 

But the College also highlighted that officers cannot discount low-level incidents as these can be the start of a build up to a serious offence.

It says the risks of not recording and viewing incidents in isolation were evident in a number of serious cases including: 

• Fiona Pilkington and her daughter suffered frequent and sustained local disorder, often directed at their home, over a period of several years. This was reported to the police, but ‘incidents were too often dealt with by police officers in isolation and with an unstructured approach’ (Independent Police Complaints Commission (IPCC), 2011). This and other factors, such as not identifying the family as vulnerable, and not recognising the anti-social behaviour and harassment as targeted hate, caused distress. Fiona eventually took her own life and that of her disabled daughter, Francecca.
• Bijan Ebrahimi was a disabled Iranian refugee who was beaten to death and set alight on a Bristol estate in July 2013. A false allegation had been made against Mr Ebrahimi accusing him of being a paedophile. Mr Ebrahimi reported repeated and targeted racist abuse and victimisation by members of the public, which the police failed to act on. The police arrested Mr Ebrahimi three days before his murder following a false allegation that he was taking photographs of a young girl. This allegation was made by his murderer/ The IPCC found that the police failed to take the reports of racially motivated abuse against Mr Ebrahimi seriously or take steps to safeguard him. 

Deputy Chief Constable Mark Hamilton, National Police Chiefs Council lead for Hate Crime, said: “It is essential that the harm caused by such incidents, and the motivation they can have on others, are recognised.

"At the same time, we must make sure that our responses are proportionate, so that human rights freedoms are protected, while also safeguarding members of the public.”

The case that triggered the changes started with a social media post. Mr Marsh advised: “The police regularly deal with complex incidents on social media. Our guidance is there to support officers responding to these incidents in accordance with the law, and not get involved in debates on Twitter.”