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.