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There is no doubt the resurgence of the Black Lives Matter movement after the death of George Floyd in the US in 2020, and global protests against racial injustice have highlighted the pervasive nature of structural racism around the world. But freedom of speech advocates in Britain have been warning that government attempts to “take hate crime seriously” – which have created dob-in-a-racist hotlines and led to police actively trawling for petty squabbles and ugly name-calling – were bad laws.

Tougher sentencing for specific crimes – either as racially or religious aggravated, or in crimes where a hate motivation is established – was introduced by the last British Labour government, as a 1997 election pledge. The ensuing 1998 Crime and Disorder Act provided for specific aggravated crimes, all of which were already illegal in their basic form, only stiffer sentences were authorised. To prove that such offences are racially or religiously aggravated, the prosecution has to prove the basic offence was followed by racial or religious aggravation.

In 2023, 145,214 hate crimes were recorded in England and Wales. While overall hate crime incidents there fell by 5 per cent, there was an 11 per cent increase in recorded hate crimes against transgender people. Additionally, religiously motivated hate crimes increased by 9 per cent.

Little data is available about charges or convictions of anti-white racism but those who shut down critics who say the laws will have unintended consequences have long said that racism on the part of those who are not white is impossible, since racism is an equation of hatred plus power.

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But the Evidence for Equality National Survey report last year found race in Britain was not just a black-and-white issue, challenging underlying assumptions of a narrow idea held by many of what constitutes racism.

For instance, the survey found that 40 per cent of white Irish people reported experiencing some form of racist assault in their lives. It meant white Irish people were more likely to say they had experienced prejudice in Britain than black African people and all Asian ethnic groups.

The courts would also beg to differ, according to an Institute for the Study of Civil Society report in 2021, with about 14 per cent of those convicted of racially or religiously aggravated offences being non-white. The share of black people convicted is about double their population share, while for Asians there was a slight under-representation.

But Richard Norrie, the report’s author from the British think tank that is working on issues related to democracy and social policy, says the British approach has ushered in a response that is “corrosive”.

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“Queen Elizabeth I of England famously said, ‘I have no desire to make windows into men’s souls,’ ” Norrie said, pointing out that it is taken as one of the cornerstones of liberalism that no government should intrude into the conscience of the citizen.

“But with hate crime legislation, have we not done this? Is this not to be objected to as an extension of government into thought and on a point of liberal principle?”

He said hate crime legislation, which could be traced back to legal attempts to penalise the incitement to violence, now stands for the punishment of offensive ideas as well as introducing inequality before the law.

A further problem, he said, is that it had created a category of crimes that are not all immediately comparable in terms of their gravity.

“When I think of which crimes are the most serious, I prioritise those against body, then property, and then those against feelings last,” he said.

"Hate crime, as we approach it now, is a problem in that it fosters an image of a country at war with itself, with those deemed oppressed at the mercy of those dominant. This is far from the truth."

Amnesty International, which has championed the laws, says hate crimes cause lasting physical and emotional damage on marginalised communities.

“They can evoke despair, anger and anxiety in victims. They spread fear and mistrust in communities and weaken the social glue that binds a society together,” the organisation says.

“The effectiveness of such legislation has been called into question, but the value of having hate crime laws in place should not be underestimated.”

Judge Judith Elaine Coello told the court on Monday that she understood Kerr’s defence would be that she didn’t intend to cause alarm, harassment or distress to the officer and that her behaviour did not amount to it, and it was not racially aggravated.

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