Ex-officer whose ‘transphobic’ tweets were recorded as a ‘hate incident’ WINS landmark victory
Ex-police officer whose ‘transphobic’ tweets were recorded as a ‘hate incident’ after one complaint WINS landmark victory after Court of Appeal rules police guidelines are UNLAWFUL
A former officer has won a landmark ruling over the recording of ‘hate incidents’ Harry Miller approached by Humberside Police over alleged ‘transphobic’ tweetsHe challenged the force and College of Policing guidance of the offenceThe Court of Appeal today ruled the guidance unlawfully interferes with the right to freedom of expression
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An ex-police officer whose ‘transphobic’ tweets were recorded as a ‘hate incident’ after one anonymous complaint has won a landmark victory at the Court of Appeal after it was ruled police guidelines unlawfully interfere with the right to freedom of expression.
Harry Miller, a former officer who describes himself as ‘gender critical’, was approached by colleagues at Humberside Police over allegedly ‘transphobic’ tweets in January 2020.
He claimed an officer told him that he had not committed a crime, but 30 messages he had tweeted or retweeted over the past year were being recorded by police as a non-crime hate incident on the national database.
It is not known what was in the tweets, which were later deleted, though he is known to have retweeted a poem which included the line: ‘Your vagina goes nowhere’.
A hate incident is defined as ‘any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice’, according to College of Policing guidance.
Critics of the policy highlighted the impact on people’s freedom of speech, as well as the use of police resources in pursuing such allegations.
Mr Miller subsequently challenged Humberside Police’s actions and the College of Policing guidance at the High Court.
Last year, the court ruled that Humberside Police’s actions were a ‘disproportionate interference’ with Mr Miller’s right to freedom of expression.
However, the former officer’s challenge to the College of Police’s guidance was dismissed on the basis that it ‘serves legitimate purposes and is not disproportionate’.
Today, though, he succeeded in a challenge at the Court of Appeal, which ruled police guidance over hate incidents unlawfully interferes with the right to freedom of expression.
The court heard that national guidance set by the College of Policing placed too much emphasis on the perception of transphobic hostility, despite no evidence recorded by police.
Former police officer Harry Miller speaks to the media outside the Royal Courts of Justice in London
The former officer succeeded in a challenge to police guidance over ‘hate incidents’ at the Court of Appeal
One of the messages which Mr Miller was known to have retweeted was a poem which included the line: ‘Your vagina goes nowhere’
An example of one of the tweets Mr Miller has posted on his social media account
Dame Victoria Sharp 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.’
Speaking to Talk Radio, Mr Miller said: ‘These people [College of Policing] are complete and utter idiots. They went all through the High Court trying to argue that there’s such a thing as a non-crime, crime and non-hate, hate. They need shutting down.
‘The consequences are far reaching. Up until today, a non-crime hate incident could appear on your record and police could send it to your employer to prevent you from getting a job or a promotion.
‘This is a great day for British democracy and freedom. We have kicked it out the park.’
An anonymous member of the public complained about Mr Miller’s tweets, leading to Humberside Police recording the complaint as a ‘hate incident’ in January 2020.
Mr Miller challenged Humberside Police’s actions and the College of Policing guidance at the High Court.
He was successful in his battle against the force, with the court ruling Humberside Police’s actions were a ‘disproportionate interference’ to his right to freedom of expression.
Mr Miller was unsuccessful in an additional challenge to the College of Policing, though, after it was found its guidance ‘serves legitimate purposes and is not disproportionate’.
In March, Mr Miller’s lawyers told the Court of Appeal that police guidance over hate incidents ‘violates the right to freedom of expression’.
Lawyers for the College of Policing, meanwhile, argued any interference with the right to freedom of expression ‘is proportionate to the legitimate aims pursued by the guidance’.
The court heard guidance had been ‘fully replaced’, with updates including ‘a strong warning against police taking a disproportionate response to reports of a non-crime hate incident’, including directly referencing the High Court’s ruling.
Dame Victoria, though, said today: ‘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.’
Assistant Chief Constable Iain Raphael, College of Policing said today: ‘Freedom of expression within the law is a fundamental right which should be protected. Policing strives every day to protect the vulnerable from harm, uphold fundamental rights and enforce the law.
‘The College of Policing supports this work through setting standards and sharing knowledge that helps forces and individuals provide better service to the public.
‘Complaints of hate are often complex and our guidance seeks to help officers understand how best to do a difficult part of their job.
Mr Miller was successful in a challenge to guidance over the reporting of ‘hate incidents’ at the Court of Appeal
‘The balance we have always aimed to strike is between the need to protect vulnerable people and communities from harm with the need to facilitate and protect freedom of speech.
‘The court has found we need to make safeguards in our guidance more explicit to help police officers proportionately enforce the law. We will listen to, reflect on, and review this judgement carefully and make any changes that are necessary.
‘The judgement provides clarity that police have the power to record, retain and use a wide variety of data and information to keep people safe.
‘By recording correctly, the police can gain insight into potential tensions in communities and harm caused to individuals. All police guidance is kept under continual review and is adapted to keep pace with the complex demands of protecting the public.’
In a statement following, Free Speech Union general secretary Toby Young praised the Mr Miller’s ‘courage and tenacity’.
He said: ‘The Free Speech Union is proud to have played a part in winning this landmark victory, but the lion’s share of the credit must go to Harry Miller.
‘Thanks to his courage and tenacity, we can all rest a little easier in our beds tonight, knowing the police are not about to knock on our doors because we’ve made an inappropriate joke on Twitter. They should be policing our streets, not our tweets.’
Following last year’s victory over Humberside Police, a judge described the force’s actions as having a ‘substantial chilling effect’ on Mr Miller’s right to free speech.
Announcing the court’s decision, Mr Justice Julian Knowles said Mr Miller’s tweets were ‘lawful’ and that the effect of the police turning up at Mr Miller’s place of work ‘because of his political opinions must not be underestimated’.
He added: ‘To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.’
In April, Home Secretary Priti Patel said allegations of hate incidents should be wiped from an individual’s record if no crime is found to have been committed.
A Home Office source said: ‘These so-called “non-crime hate incidents” have a chilling effect on free speech and potentially stop people expressing views legally and legitimately.
‘If people are found to have done nothing wrong the police shouldn’t punish them.’
In February last year, police said they had recorded almost 120,000 ‘non-crime hate incidents’ between 2014 and 2019.
South Wales police were found to have logged the highest number of ‘hate incidents’ with 13,856 cases.
Metropolitan Police logged over 9,000 in the same time period.
