Recording Non-Crime (Transphobic) Hate Incidents: R (Miller) v College of Policing and Chief Constable of Humberside

For the past two decades, the police in the United Kingdom have recorded non-crime hate incidents. Defined broadly as non-crime incidents which is perceived by the victim or any other person to be motivated by hostility or prejudice against a person who is a member of a protected group, the practice of recording such incidents, and the use of the so-called ‘perception test’ or ‘Macpherson test’, have been recognised internationally as crucial to combating hate crime. The European Council on Racism and Intolerance’s General Policy Recommendation 11 regarding the role of the police in combating racist offences and monitoring racist incidents in the, include a recommendations that a system for recording and monitoring racist incidents be put in place, and that the perception test to be used in this regard. Having operated relatively unproblematically, both the recording of non-crime hate incidents, and the perception test, were put under scrutiny by the High Court recently. This article will consider the potential impact of the decision in R (Miller) v College of Policing and Chief Constable of Humberside with respect to such incidents, particularly in the context of the recording of non-crime transphobic (hate) incidents. The decision has the capacity not only to impact on, and inform, not just policy and practice in England and Wales, but across the UK and Europe, where the test has been adopted and adapted.