Harry Miller has won an important battle, but don’t expect the College of Policing to change very much

This piece originally appeared (behind a pay wall) in the Daily Telegraph on 21 December 2021.

In January 2019 a woman – who can be identified only as “B” – contacted Humberside Police.

I would like to report an individual by the name of Harry Miller [she gave his work details]. Miller has been making transphobic remarks on his Twitter account under the handle @HarryTheOwl. These comments are designed to cause deep offence and show his hatred for the transgender community.”

Mr Miller believes that biological sex is immutable. His tweets – which were not directed at B – often made the same point, sometimes in rather coarse terms, as when he quoted a snatch of doggerel:

Your breasts are made of silicone
Your vagina goes nowhere
And we can tell the difference
Even when you are not there ….”

In 2014 The College of Policing had issued Guidance to all forces, informing them that they must record all “hate incidents.” In so far it was relevant to transgender people, a “hate incident” was defined as:

any non-crime incident 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 ….”

Such records “must be made,” the Guidance insisted, “irrespective of whether there is any evidence to identify the hate element.” In the Looking Glass world of the College of Policing the police had a role to play even when there was no evidence of a crime having been committed, no reason to suppose a crime was likely to be committed, no identifiable victim and no evidence of hatred.

So an officer visited Mr Miller at work. He told him that he should “check his thinking.” His tweeting, he was told, while “not in itself criminal” was nevertheless a “hate incident” and must be recorded as such.

The report described him as a “suspect” and B as a “victim.”

If he posted further offensive tweets the police warned him, the matter might be “escalated”; or if he applied for some position requiring an enhanced criminal record certificate, then – at the discretion of the Chief Constable of Humberside – a potential employer might be warned about him.

Bravely – because litigating against one public body, let alone two, is potentially ruinous – Mr Miller challenged both Humberside Police over their behaviour, and the College of Policing which issued the official guidance which they were following.

Mr Justice Julian Knowles, the trial judge, ruled that Humberside Police had acted unlawfully. There was “not a shred of evidence” that Mr Miller had committed any offence, and they had no business warning him about possible “escalations”. His tweets were not “grossly offensive” and the use of words such as ‘breasts’ or ‘vagina’ was not (you will probably be pleased to hear) “indecent … at least not in the satirical context in which they were deployed.”

So far so sensible, and indeed Mr Justice Knowles’s judgment contained some strong language condemning the police behaviour: “In this country we have never had a Cheka, a Gestapo or a Stasi.”

When it came to the College of Police Guidance however, the judge dismissed his claim. The Police, Mr Justice Knowles said, had a right to record whatever they liked.

Mr Miller took his case to the Court of Appeal, which on the Monday before Christmas unanimously agreed with him and ruled that the College’s Guidance was indeed unlawful.

Although very few self-professed “human rights” lawyers have been publicly supportive of Mr Miller, there is no question that he has the Human Rights Act to thank for his victory. The Court of Appeal agreed with the trial judge that under the common law the Police were indeed entitled to record the incident in any way they wished.

He succeeded in his appeal only because Article 10 of the European Convention on Human Rights gave him a right to freedom of expression. The requirement to record his lawful tweets as a “hate incident” had a “chilling effect,” the Court said, on his freedom of expression.

But while declaring the College’s existing Guidance unlawful, the Court declined to rewrite it, or indeed to make entirely clear what changes are needed to make it lawful, beyond a broad hint that it should remind officers to use their “common sense.” The Government has since announced plans to overhaul laws on “hate incidents,” but the details are far from clear. 

It is hard to imagine that either the general public or the overwhelming majority of serving officers see the policing of twitter as a core policing priority. I daresay an overwhelming majority of both would welcome guidance that the police should stay out of social media unless there was clear evidence of criminality, and even then to tread with great care.

Nevertheless I predict that the College will aim to change their maligned Guidance as little as possible. The Court’s suggestion that it should invite officers to apply their common sense will be particularly hard to swallow for an organisation that has for many years manifestly failed to demonstrate that it possesses any such quality of its own.

When, for example, in 2016 Mr Justice Henriques criticised the College’s instruction to officers to “believe the victim” in his report into Operation Midland, it had little effect on the College’s guidance on the investigation of non-recent child abuse. The latest version still describes all complainants as “victims” and instructs officers that even when cases are dropped “the victim should not be left feeling that they have not been believed ….” There are many reasons why a case might be discontinued, but when the reason is that the complainant’s account has been exposed as demonstrably false, an instruction to reassure the false accuser that they have nevertheless been believed will seem bizarre to those not attuned to the College’s approach to policing.

So whilst anyone believing in the importance of freedom of speech should welcome the Court of Appeal’s forthright defence of Mr Miller’s right to tweet provocatively, whether his victory actually produces any real change of policy by the College of Policing remains to be seen. Mr Miller has won an important battle, but the culture war of which it was a part is far from over.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

4 thoughts on “Harry Miller has won an important battle, but don’t expect the College of Policing to change very much”

  1. But has it really changed anything? Will he be barred from jobs in the future and never know why? Given my experiences I think this really is the tip of the proverbial iceberg…so many have had their lives and careers destroyed over malicious lies on secret files that you’re never allowed to access, no I wasn’t a construction worker either!

    6th January is my anniversary- 16 years homeless and destitute, forced to survive as a slave. To this day I still can’t find out even the names of people that did it to me.

    It’s not just the state either. Companies like BT do it as well, although that might not effect your career, unless you worked for them. I was shocked to discover what things were being recorded on customers’ files without a shred of evidence and this did ‘colour’ all future dealings with them. Most complaining about the lack of privacy….I was working there when phonetuk went live, people’s names and addresses published on internet….resulting in at least several thousand murders, knee cappings, stabbings, lots of people forced to flee their homes….it wasn’t JUST Jill Dando. All covered up…and the staff just think it’s something to laugh about as it stopped them from complaining! IF the DPA was actually enforced along with Joint Enterprise law they would be in prison for life surely.

  2. Well done, again, and thank you Matthew for picking up on this case.
    Upon reading first few paragraphs I was determined to respond regarding the “believe” doctrine (a la Keir Starmer, when Head of CPS) and so became pleased and encouraged when you referenced.
    That police can record what they want….or how they want is debatable, I feel. Surely it has to be based in fact?!
    Can they “believe” what they want? What about when this “believe” clouds any sense of judgement and investigative deductive powers they may (or may not) possess? What about when police are determined to “make up for past mistakes” and convince themselves a crime has been committed and then go on to convince others to believe also?
    Operation Medway, Leics police, is an example or how police can ruin innocent peoples’ lives, trample all over long committed careers in social work/care…..on the basis that police can do what they want, based on a “belief” about which they have convinced themselves, and yet in reality are untrue/unfounded/unproven allegations. When these allegations are untested and can withstand no or little scrutiny it is a smoke and dragons scenario or as one MP (now in House of Lords) commented on the previous police investigation (Operation Magnolia) a pursuit of dragons.
    CPS and other involved authorities/organisations all came to an opposite conclusion of no risk, no concern…..by which time it was too late, the damage was done.
    College of Policing once again demonstrates the tried and tested phrase: the trouble with common sense is that it is not common enough.

  3. few more examples

    The stats say that 90% of all rapes and murders are done by a family member or very close friend. Last piece of telly I watched before I switched off for good pretty much was the documentary on Sally Anne Beaumont’s rape and murder. During which the lead pigyob basically admitted they were in the process of fitting up her boyfriend for it…until the DNA sample came back. The real perp would have got away with it if he had used a condom and burned the body presumably. But in their perverted double speak it just another good excuse to have EVERYBODY’s DNA recorded, from birth- which is what they’re doing now. In the 80s it was 80%, in the 60s the official stat was 60 odd % I believe….can you see what they have done there? How many innocents in jail and how many got away….?

    Another example of their stupidity, anecdotally, really was a friend of mine… Young lad at the time, single mother called cops on the neighbour that lived directly opposite her was out shooting foxes with his shotgun and threatening people passing by with it because he thought it was ‘funny’ presumably…no idea if legally registered or not. I doubt they bothered to check….but they sent out a lone young female unarmed pigyob out to have a word with him. Once she was done with that she came and spoke to my friend’s Mum, shouting very loudly words to the effect ‘oh no, we’ll keep your report confidential and won’t tell him it was you….’ and he’s stood at his window looking directly at her whilst doing the slit throat sign…..young mum and her kids totally terrified and left to wallow in fear of what was about to happen…

    I ask you, if it really a good idea to have a so called police force whose sole entry requirement is a 50% pass mark on a multiple guess exam and the ability to commit extreme acts of violence on people?

    There was a case must be getting on nearly 20 years ago now where somebody went to the police with a drink that she thought tasted a bit funny…pigyobs tested drink and found it to be poisoned. The person who was accused of doing it went to jail for attempted murder…. Since then I’ve read of at least 20 odd cases where same thing has happened…so what is to stop doing the same thing? i.e. poison my own drink and go oh mr officer that person over there that i don’t like gave me this drink and it tastes a bit funny…..

    It’s so easy to manipulate these morons into murdering people and other things. I’m thinking particularly on the murder of Harry Stanley. Why would they not release the recorded phone call, just to see if any friends and family could recognise the voice…..? They KNOW, that’s why they won’t release it as it would reflect even more badly on them and actually force some change, maybe.

    Barry George

    then there is the statistics and the computer told me to do it….
    post masters/ mistresses…how many of them ended up in jail, whole lives destroyed before the people that did it to them fessed up….?

    nurse fitted up for lots of murders….I personally don’t think the statistics used there are enough to justify that conviction. I used to build/ fix computers…and I was darn good at it, working along side a bunch of muppets that largely had no clue what they were doing. Consequently, I got all the harder/ difficult jobs….therefore my stats never did look good because support ticket wasn’t closed within the specified 24 hours…doubly so when a new part needed to be ordered. So the puppet who sits on phone all day just saying ‘switch it off, turn it back on again’ ends up being promoted to manager and all the good one’s quit in disgust or start looking for other jobs….I can see exactly same thing happened with that nurse…and morons assuming but without the intellectual capacity to actually investigate it properly!

    i do not accept that this constitutes a delusional manner of thinking that needs to be cured by anal gang rape, forced injections of unknown substances and passing an electrical current through my brain…..

    and to think when the phrase ‘fake news’ first started to be banded about my first thought was oh shit, they’re about to go live on the long planned plandemic….

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