A national police policy had a “chilling effect” on freedom of speech, the Court of Appeal rules.
Image source, PA Media
An ex-police officer has won a legal challenge against a national policy for forces to record gender-critical views as non-crime “hate incidents”.
Humberside Police visited Harry Miller in January 2020 after a complaint over alleged transphobic tweets he made.
It was recorded on a national database as a non-crime hate incident.
But the Court of Appeal ruled on Monday the guidance was wrongly used and it had a “chilling effect” on Mr Miller’s freedom of speech.
The national rules, set by the College of Policing, had placed too much emphasis on the perception of transphobic hostility, despite no evidence recorded by police, the court heard.
A hate incident is “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice”, according to the College of Policing’s guidance on hate crimes.
Dame Victoria Sharp, one of England’s most senior judges, said: “The net for ‘non-crime hate speech’ is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility… regardless of whether there is evidence that the speech is motivated by such hostility.
“The volume of non-crime hate speech is enormous and the police do not have the resources or the capacity to investigate all the complaints that are made.
“There is nothing in the guidance about excluding irrational complaints, including those where there is no evidence of hostility and little, if anything, to address the chilling effect which this may have on the legitimate exercise of freedom of expression.
“There is no provision for proportionality to be applied to recording [the incident]. And the guidance says nothing about the language to be used or whether someone should be notified that a record, flagged as a hate incident, has been made of a complaint against them.”
Mr Miller, from Lincolnshire, challenged Humberside Police’s actions at the High Court, which ruled in February 2020 that the force’s response was unlawful and a “disproportionate interference” with Mr Miller’s right to freedom of expression.
Image source, PA Media
However, an additional challenge to the College of Police’s guidance was dismissed, with the High Court finding that it “serves legitimate purposes and is not disproportionate”.
In March, Mr Miller’s lawyers told the Court of Appeal that the guidance unlawfully “violates the right to freedom of expression”, but the College of Policing said any interference with freedom of expression was “proportionate to the legitimate aims pursued by the guidance”.
The court heard the guidance had been revised with updates including “a strong warning against police taking a disproportionate response to reports of a non-crime hate incident”.
However, Dame Victoria added: “In my opinion [the revisions] do not go very far or not nearly far enough to address the chilling effect of perception-based recording more generally.”
Mr Miller posted a number of tweets between November 2018 and January 2019 about transgender issues as part of the debate about reforming the Gender Recognition Act 2004.
In one tweet Mr Miller wrote: “I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me.”
This tweet was among several others which were reported to Humberside Police as being allegedly transphobic and Mr Miller was visited by officers at his workplace.
The College of Policing and Humberside Police have been approached for a comment.
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