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

Should we be free to stir up racial hatred in the privacy of our own homes?

This politically correct nonsense has to stop,” says Tim Loughton, Conservative MP for East Worthing & Shoreham. Mr Loughton has been a vocal opponent of “political correctness” for years, whether manifested in local authority adoption policies, bans on employees wearing religious symbols, gender questionnaires for primary schoolchildren or gender neutral school uniform.

The particular “nonsense” to which he is referring is the provisional recommendation in a consultation document from the Law Commission that the offences of “stirring up” racial or religious hatred, or hatred on the grounds of sexual orientation, should not be exempt from the criminal law when they take place inside a dwelling.

Even if he has a point it is a little early to panic. The Law Commission is a statutory body charged with making recommendations for law reform, but it is not especially known for political correctness or indeed for pushing any particular political view. Its Chair and four Commissioners – three Professors a QC with an interest in tax and EU law and a Court of Appeal judge are hardly household names, unless your household is full of academic lawyers, and nor are they in any sense political apparatchiks or wannabe commissars. They cannot make law – that responsibility these days usually falls on Matt Hancock or, very occasionally Parliament – they simply make recommendations. Often the Government says “thank you very much” and files their reports in an oubliette where they are duly forgotten.

So what has upset Mr Loughton is a tentative, provisional recommendation in a consultation, which might, or very well might not, lead in a year or two to a firm recommendation, in a report which the government of the day will quite likely ignore, and which in any event would require an Act of Parliament to implement. For the foreseeable future we will remain free to foment racial hatred in the privacy of our own homes, although confusingly, not if we do so by playing “a recording of visual images or sounds” which have the same effect: they are covered by a different section of the Public Order Act 1986 which does not have the “private dwelling” defence. Legal anomalies are heartily disliked by the tidy-minded Law Commissioners.

The extent to which the criminal law should be involved in regulating freedom of speech is a very live issue.

But it is not true that that Law Commission is especially in favour of restricting free speech. Indeed, it has at present another important consultation open on “Harmful Online Communications” which – albeit in cautious terms – recommends reform of S.127 (1) of the Communications Act 2003. That somewhat notorious subsection – which has its origins in legislation introduced in the 1930s to protect telephonists from obscene telephone calls – prohibits the posting of “grossly offensive” or “menacing” material online. Its vague terms have been used to prosecute, for example a joke tweet about blowing up Doncaster airport (albeit in the end unsuccessfully) and a man who posted footage of his dog performing a Hitler salute in answer to the command “Gas the Jews” (successfully). The Law Commission’s suggestion is that the scope of the offence should be reduced by restricting it to communications “likely to cause harm.”

However, the specific proposal that has exercised Mr Loughton is in the separate Hate Crime consultation document.

According to Mr Loughton:

What has the world come to when the principles of freedom of speech are now being trampled upon in conversations within your own home. There is a place to clamp down on hate crime, but within a family home it’s up to individuals to regulate how they converse.”

It’s a legitimate point of view, but I think Mr Loughton’s worry may be based on a misunderstanding of what the Law Commission is suggesting.

The crimes in question, the “stirring-up” crimes as they are termed, are not committed by expressing politically incorrect truths in family conversations. They are serious offences requiring either an intent to stir up racial (etc) hatred, or at least the likelihood that such hatred will be stirred up. They cannot be committed without (in the case of the racial hatred offence) the use of “threatening, abusive or insulting words or behaviour.” The “religious hate” limb of the offence requires threatening words or behaviour and it expressly excludes “discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of its adherents ….”  The “sexual orientation” limb contains equivalent exclusions. Prosecutions require the consent of the Attorney General and they are rare.

In Saki’s brilliant and deeply unsettling story The Unrest Cure, the local Bishop has visited a country house. The story is that he has done so in order to plan a Jewish pogrom.

Concerned that the Bishop is spending too long in the library another guest asks:

Isn’t the Bishop going to have tea?”

The Bishop is out for blood not tea” is the sombre reply.

It is revealed that he is planning to kill all the Jews in the neighbourhood (Saki, it should be noted, died while Hitler was still an unknown Lance Corporal).

“To massacre the Jews!” … Do you mean to tell me there’s a general rising against them?”

“No, it’s the Bishop’s own idea. He’s in there arranging all the details now.”

No-one would suggest that the Bishop’s activity – were it ever to be carried out – should be lawful merely because it is carried on in a private house.

Of course there is an important difference between actively planning a pogrom and “merely” stirring up racial hatred.

So let us change the story just a little: if the Bishop – or let us change it a little further and make him a fanatical and anti-semitic Islamist imam – holds a meeting in the library in which he calls in threatening terms for vengeance to be wreaked on the neighbourhood’s Jews because a prominent Jewish magazine has published an offensive cartoon, is it right that he should have a defence to a charge of stirring up racial hatred simply because the stirring-up of hatred took place in a private dwelling rather than in a car-park or a mosque?

If you have any views on the issue, the Law Commission’s consultation is open until Christmas Eve.

The Met has a problem with hate-crime. It can’t explain what it means.

The Metropolitan Police has a rather strange notice about “hate crimes” on its website.  It has attracted quite a bit of attention on social media.

Hate crimes and hate incidents

If someone commits a criminal offence and the victim, or anyone else, believes it was motivated by prejudice or hate, we class this as a ‘hate crime’. It means the offender can be charged for the crime itself and also their reasons for doing it.

If someone does something that isn’t a criminal offence but the victim, or anyone else, believes it was motivated by prejudice or hate, we would class this as a ‘hate incident’. Though what the perpetrator has done may not be against the law, their reasons for doing it are. This means it may be possible to charge them with an offence.

Let’s break this down, sentence by sentence. Continue reading “The Met has a problem with hate-crime. It can’t explain what it means.”