In December, an ex-police officer called Harry Miller won a legal challenge against a national policy permitting forces to record gender-critical views as non-crime “hate incidents”. A brief analysis of the decision and its legal framework may be helpful, particularly to Roman Catholics whose beliefs on a number of moral issues may not conform with general trends in society.
The Humberside Police interviewed Miller in January 2020 after a post-operative transgender woman was offended by his views and complained to the police. The police recorded the Twitter activity as a “hate incident” without any critical scrutiny or assessment of it. Mr Miller brought judicial review proceedings challenging the police recording of the incident and police action, including strongly advising Mr Miller to stop tweeting gender critical messages. The High Court decided in his favour on this. He also challenged the lawfulness of the national guidance on the police recording of non-crime hate incidents, which the High Court rejected.
Mr Miller appealed successfully to the Court of Appeal. The court ruled the guidance was wrongly used and it had a “chilling effect” on Mr Miller’s freedom of speech. The guidance and case itself deserves closer examination. The Anti-Social Behaviour, Crime and Policing Act 2014 gives statutory power to the College of Policing (the College) to issue regulations and codes of practice in support of its functions. Under this authority, the College issued Guidance on Hate Crime in 2014. Part of the Guidance is a policy requiring police to record non-crime hate incidents if the incident was “perceived by the victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender”.
The record was required irrespective of any evidence of the “hate” element. Mr Miller’s challenge centred on the uncritical recording of a non-hate crime incident without any investigation as to its veracity, and regardless of whether there was any objective evidence to support the complaint made.
Though Miller concerned a transgender incident, there are similar provisions on disability, race, religion and sexual orientation. Also, the Court held that the police do have power to record, retain and use a wide variety of data and information and that these powers extend to the collecting and retaining details of non-crime hate incidents. The Court had to decide whether, in the circumstances of the case, the recording of a non-crime hate incident interfered with Mr Miller’s right to freedom of expression. If so, was it justified interference?
The court held that it did interfere with his freedom of expression and it was not justified. Important factors were:
(i) The tweets, though described by the High Court as “unsubtle” but “expressions of opinion on a topic of current controversy, namely gender recognition”, did not even arguably amount to criminal hate speech.
(ii) Mr Miller’s views on transgender issues were also held by many academics as part of a complex debate in society. Article 10 affords special protection to political speech and debate on questions of public interest.
(iii) The recording would have a chilling effect on future statements because of the fear of a record being made; also, there was a non-trivial risk that such a record might be disclosed on an Enhanced Criminal Record Certificate, potentially relevant to employment in positions such as teachers, social workers and carers.
(iv) The Guidance was not a proportionate interference with freedom of expression. There was nothing wrong in principle with recording as a non-crime hate incident something perceived by the victim or another person to be such. However, there was nothing in the Guidance about excluding irrational complaints, including those where there was no evidence of hostility. There was little in the Guidance addressing the chilling effect that recording may have on the legitimate exercise of freedom of expression.
Therefore, perception-based recording of non-crime incidents is not by itself unlawful. Nevertheless, the Court said that additional safeguards should be put in place so that the incursion into freedom of expression is no more than strictly necessary. The Home Secretary has been reported in the press as intending to enshrine in law a new code of practice controlling how these incidents are recorded.
It is to be recalled that the Court emphasised, as a relevant factor, that there is a debate in society on transgender matters. In particular, Mr Miller’s views were “congruent with the views of a number of respected academics”. It seems to follow that a statement without the support of such “congruent” views on (say) sexual orientation or religion may still run the risk of being recorded by the police as a non-crime hate incident.
Sir Stephen Stewart is president of the Thomas More Society
This article first appeared in the February 2022 issue of the Catholic Herald. Subscribe today.
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