Hate speech policing is Orwellian, warns judge in trans tweets case The Times 15.12.20

The original article is here.

Police have been urged to rewrite the rules on hate crime after a judge likened a force to the Gestapo over its handling of a businessman who tweeted about transgender people.

Mr Justice Julian Knowles warned yesterday that Britain was in danger of slipping into an Orwellian society after Harry Miller, 55, was visited by officers at work and told that his tweets would be recorded as a “non-crime hate incident”.

He was investigated by a community cohesion officer who claimed that he was in danger of breaking the law. Mr Miller said that the officer had told him: “I’m here to check your thinking.” The tweets included a limerick about transgender people and one saying: “I was assigned mammal at birth but my orientation is fish. Don’t mis-species me.”

Mr Miller began legal action against Humberside police and the College of Policing. The force said that its visit was based upon operational guidance from the college, which is the police’s professional body.

The judge ruled against Humberside, saying that the tweets “were lawful and there was not the slightest risk that he would commit a criminal offence by continuing to tweet”.

Last night Downing Street expressed concern over the operation of the college’s guidelines and indicated that it was prepared to press for a review of the situation. A No 10 source said: “The UK is an open and diverse country and freedom of speech is one of the values that defines us as a society. It is important we distinguish between strongly felt debate and unacceptable acts of abuse, hatred, intimidation and violence.”

In his ruling Mr Justice Knowles said: “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.”

Their actions towards Mr Miller, who is also a former Humberside police officer, “disproportionately interfered with his right of freedom of expression . . . 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.”

Amber Rudd, the former home secretary, said: “This case does bring into question how these incidents are being dealt with and logged regardless of the rights and wrongs in this debate.”

Ms Rudd has also had a “non-crime hate incident” recorded against her after a complaint about a speech she made about foreign workers in 2017.

The college is reviewing its guidance, which it said it had decided to do before the case. It has requested changes to “non-crime hate incidents” to “balance the police response and the rights and freedoms of individuals under the Human Rights Act”.

Almost 120,000 non-crime hate incidents have been recorded by 34 police forces in England and Wales in the past five years. These may have prevented the accused from getting jobs since they can show up during criminal records checks.

Mr Miller said of the ruling: “It was absolutely fantastic. The judge said you may have followed the guidance but what you did was akin to the Gestapo or the Stasi. For a UK police force, you can’t get any worse than being described as that. The Stasi are there to impose a view, to control the people.”

He accused the police of being politicised, saying that they had allowed themselves to be driven by transgender activist groups such as Stonewall, Mermaids and Gendered Intelligence.

John Apter, chairman of the Police Federation, said: “Policing over the years — leadership — has become obsessed with recording everything. The problem is then about accountability. When everything is recorded, you become accountable. That’s evolved into something that means we can never say no. That’s not a sensible position.”

He added that all forces now had to “think very, very carefully”. He said: “We’re not the moral compass. We can’t be the moral police. But sometimes we have been dragged into those situations. I can understand why the public are confused when we’re saying we are so overstretched, then we have police knocking on the door saying, ‘Why are you saying that in a tweet?’”

One former police chief said that Humberside’s actions were “a case study in overreaction driven by paranoia”. He added: “Police forces are now almost scared of their own shadow. Especially in relation to race or hate.”

The judge ruled that the college’s guidance was in itself lawful and complied with Article 10 of the European Convention on Human Rights protecting freedom of expression. Mr Miller has vowed to challenge the guidance in the Supreme Court.

His challenge centred on the designation of non-crime hate incidents. The guidance says that police who receive an allegation about a hate crime should record it as a hate incident, regardless of whether there was evidence for the truth of the claim. Such incidents remain on an individual’s record.

Humberside police are to “take learning” after the ruling. The College of Policing described the ruling as “pleasing”, adding: “We want everyone to feel able to express opinions as passionately as they wish without breaking the law.”

• Kellie-Jay Keen-Minshull, a blogger, was interviewed by West Yorkshire police on suspicion of transphobic offences after tweeting in 2018 about a charity director taking her 16-year-old child to Thailand for gender reassignment surgery. No charges.

• Gordon Larmour, a born-again Christian street preacher, was locked in a cell and charged with subjecting a gay teenager to threatening or abusive behaviour “aggravated by prejudice relating to sexual orientation” for quoting the Book of Genesis in Irvine, North Ayrshire, in 2017.

• A police investigation was opened in 2012 after Rio Ferdinand tweeted a reference to Ashley Cole, a fellow footballer, being a “choc ice” — alleged to mean Cole was black on the outside but white on the inside. No charges were brought.

• Suffolk police were criticised for contacting a 74-year-old woman who tweeted “gender is BS” and telling her to “tone down” her posts. They later called back to apologise.


What is the difference between a hate crime and a hate incident?
A hate crime is an offence which is perceived by the victim or any other person to be motivated by hostility or prejudice towards race, religion, sexual orientation, transgender or disability, according to the College of Policing, the professional body for police in England and Wales.

Such crimes range from offensive language or incitement to hatred or physical violence. They would result in an offence being recorded, even if the perpetrator cannot be found.

A hate incident is described by the College as one “which the victim or anyone else thinks is based on someone’s prejudice towards them because of their race, religion, sexual orientation, disability or because they are transgender”.

It says that a hate incident becomes a hate crime when there is a criminal offence committed. For example, if someone is physically assaulted because of their race it becomes a hate crime as the assault is classed as being motivated by hate.

Do both lead to a criminal record?
Unlike criminal offences, hate incidents are not recorded on the Police National Computer (PNC) but on a local force database instead as “non-crime hate incidents”.

Ordinary criminal record checks search the PNC, but enhanced criminal records checks also search information on local force databases.

Professions requiring enhanced disclosure checks tend to be those in which an individual is working with children or vulnerable adults, such as teachers, social workers or childminders. Some employers, however, seek enhanced disclosure checks as a matter of course, whether someone is an operator on a helpdesk, a cleaner or a chef de partie.

So why bother recording hate incidents?
The College claims that “experience tells us that sometimes incidents of hate can quickly escalate”.

It adds: “For example, if someone is being harassed, the first incident may not be a crime but subsequent incidents make it one. Without that initial report, police can’t build up a picture of offending over a period of time.”

In other words, the College says that such expressions of “hate incidents” are precursors to potential hate crimes and they want to have a record of any red flags.

So what was the High Court case about?
Harry Miller, a former PC at Humberside police, was visited by his former force over tweets he had posted about transgender people after officers received a complaint about it from a transgender woman referred to as Mrs B.

He was told that his tweets would be recorded as a “non-crime hate crime”, or a hate incident.

He challenged this at the High Court, seeking a judicial review of the College’s guidance on hate incidents. He said the guidance breached his rights to freedom of expression under Article 10 of the European Convention on Human Rights.

He said that it was unfair that an allegation, made in his case by a single person, should show up as a police-recorded incident on an individual’s background, which could potentially cause problems when applying for jobs requiring enhanced disclosure checks.

His case was against the College of Policing and Humberside police.

Who won?
Mr Miller against Humberside police, but he lost against the College of Policing.

The judge Mr Justice Julian Knowles said that the College of Policing’s Hate Crimes Operational Guidance was lawful, and did not in itself breach Article 10, but that Humberside police were essentially wrong in their application of it. The judge said that the police interfered with Mr Miller’s right to freedom of expression by visiting him and warning that further conduct could result in prosecution. Mr Miller’s tweets were entirely lawful, he ruled.

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