Background to the case 1. Between November 2018 and January 2019 the Claimant, Harry Miller, posted a number of tweets on Twitter about transgender issues. He holds gender critical views. The Claimant strongly denies being
prejudiced against transgender people. He regards himself as taking part in the ongoing debate about reform of the Gender Recognition Act 2004 on which the Government consulted in 2018.
2. The College of Policing is the
professional body whose purpose is to provide those working in policing with the skills and knowledge necessary for effective policing. The College publishes operational guidance for police forces in relation to hate incidents. This is called the Hate
Crime Operational Guidance (HCOG). It requires police forces to record hate incidents whether or not they are criminal. The recording is done primarily for intelligence purposes. A noncriminal hate incident in relation to transgender 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 against a person who is transgender or perceived to be transgender.
3. The Claimant's tweets were reported to Humberside Police by a transgender woman called Mrs B. Mrs B read the tweets when a friend told her about them. She regarded them as transphobic. They were recorded by the police as a
non-crime hate incident. Of all the people who read the tweets, Mrs B was the only person to complain.
[An example Twitter post was You're a man.
You're breasts are made of silicone
Your vagina goes nowhere
And we can tell
the difference
Even when you are not there Your hormones are synthetic
And lets just cross this bridge
What you have you stupid man
Is male privilege.]
4. A police officer visited the Claimant's
place of work to speak to him about his tweets. They subsequently spoke on the telephone. What was said is disputed, but in his judgment Mr Justice Julian Knowles finds that the officer left the Claimant with the impression that he might be prosecuted if
he continued to tweet. A press statement issued by an Assistant Chief Constable and a response to a complaint by the police also referred to the possibility of criminal proceedings if matters escalated, a term which was never further defined.
The judgment
5. In this application for judicial review the Claimant challenged the lawfulness of HCOG. He argued that, as a policy, it violates domestic law and also Article 10 of the European
Convention on Human Rights, which protects freedom of expression. Alternatively, he argued that even if the policy is lawful, his treatment by the police was disproportionate and unlawfully interfered with his right of free speech under Article 10(1).
6. In his judgment handed down today, Mr Justice Julian Knowles concludes that HCOG is lawful as a policy both under domestic law and under Article 10. The policy draws upon many years of work on hate crime and hate incidents
which began with the 1999 Macpherson Report into the murder of Stephen Lawrence in 1993. The Court concludes that HCOG serves legitimate purposes and is not disproportionate.
7. However, Mr Justice Julian Knowles also finds that
the police's actions towards the Claimant disproportionately interfered with his right of freedom of expression on the particular facts of this case. The judgment emphasises the vital importance of free speech in a democracy and provides a reminder that
free speech includes not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, and that the freedom only to speak inoffensively is not worth having.
8. Mr
Justice Julian Knowles concludes that the Claimant's tweets were lawful and that there was not the slightest risk that he would commit a criminal offence by continuing to tweet. He finds the combination of the police visiting the Claimant's place of
work, and their subsequent statements in relation to the possibility of prosecution, were a disproportionate interference with the Claimant's right to freedom of expression because of their potential chilling effect. In response to the Defendants'
submissions that any interference with the Claimant's rights was trivial and justifiable, the judge concludes that these arguments impermissibly minimise what occurred and do not properly reflect the value of free speech in a democracy. He writes: The
effect of the police turning up at [the Claimant's] place of work because of his political opinions must not be underestimated. 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.
9. To that extent, Mr Justice Julian Knowles upholds the Claimant's claim.
The BBC obtained a follow up statement from the police rather showing that the police are wedded
to the Orwellian society that they are enforcing.
Deputy Chief Constable Bernie O'Reilly, of the College of Policing, said:
Policing's position is clear - we want everyone to feel able to express opinions as
passionately as they wish without breaking the law.
He added: Hate incidents can be a precursor to these types of crimes and without recording them the police will begin to lose sight of what is happening
in their communities - and potentially lose their confidence.
Offsite Comment: We need more Harry Millers
15th February 2020. See
article from spiked-online.com by Tom Slater
He fought the thoughtpolice, and he won.
Today is a good day for free speech in Britain. The High Court has ruled that it is unlawful for police officers to harass members of the public for expressing views on the internet that
some people find offensive, but are otherwise entirely legal to express. That this even had to be clarified tells us something about how far we've fallen, and how sorely this ruling was needed.
Statement: Index welcomes
ruling that police reaction to tweets was disproportionate interference
15th February 2020. See
article from indexoncensorship.org by Jodie Ginsberg
Index has long expressed concerns about the way police are handling online speech.
Index on Censorship chief executive Jodie Ginsberg said:
All too often speech that breaks no law is being
investigated in a way that stifles people's freedom to express themselves -- while direct and credible threats of violence go unpunished.
Index on Censorship provided a witness statement in the Miller case and in
particular noted the importance of being able to debate matters of public interest, such as the questions that arose from the government's consultation on the Gender Recognition Act. Index argued that the growing number of cases in which police were
contacting individuals about online speech that was not illegal -- and sometimes asking for posts to be removed -- was creating confusion among the wider population about what is and is not legal speech.
Offsite Comment: Unpopular Thoughts Approved In The UK
17th February 2020. See article from reprobatepress.com by David
Flint
