High Court of England and Wales finds application of hate crime guidance breached right to free speech

The High Court of England and Wales has found the application of hate crime guidance by police a disproportionate interference with free speech rights.

The applicant in this case, Mr Miller, published what he called “gender critical” comments on Twitter. These comments were noticed by a member of the public and reported to Humberside Police as she thought them to be transphobic. Pursuant to the Hate Crime Operational Guidance 2014 (HCOG), the Humberside Police Crime Reporting Team recorded her complaint as a non-criminal hate incident.

Under these guidelines, a hate incident in relation to a transgender person is “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”. Subsequent to this report, a plain clothes officer went to the applicant’s workplace to speak with him. He warned the applicant that if he “escalated” the situation, he may face prosecution but did not elaborate further on what this might mean.

Mr Miller lodged a complaint with Humberside Police which was later dismissed, as was the appeal. He subsequently brought judicial review proceedings against the College of Policing and the Chief Constable of Humberside. In his complaint, Mr Miller challenged the Hate Crime Operational Guidance on the basis that it unlawfully interfered with his freedom of expression under Article 10 of the European Convention on Human Rights.

In the High Court, Knowles J rejected the complaint on three grounds. In the first instance, he said that the mere recording of a non-criminal hate incident did not interfere with the applicant’s freedom of expression as it had no practical consequence for him. There was no real risk that this incident would be disclosed by the police under an Enhanced Criminal Record Check and the legal framework relating to the disclosure of non-conviction data is tightly drawn and human rights compatible.

Knowles J went on to say that, even if there was an interference, it was prescribed by law and pursued the legitimate aim of preventing crime and protecting the rights of others. He added that it was also necessary in a democratic society because the recording of these incidents was rationally connected to these objectives. In his view, the HCOG was the least intrusive way of achieving these aims. The policy’s impact on his Article 10 rights was minimal and the interference justified given the importance of protecting the rights of vulnerable groups from hate crimes.

This being the case, Knowles J held that the applicant had failed in his challenge to the HCOG policy.

The applicant also challenged Humberside Police’s application of the HCOG policy.

The Court held that the applicant’s rights under Article 10 were unlawfully interfered with by the application of HCOG by Humberside Police. This was because the actions of the police went beyond the mere recording of the incident. Knowles J was of the view that the police officer’s warning to the applicant had the capacity to impede or deter him from expressing his opinion on transgender issues and that the effect of a police officer turning up at his workplace should not be underestimated. Even if the officer was acting within his common law powers to prevent crime, there was no reason to think that the applicant was likely to commit a crime so there was no justification for visiting his office.

The Court also rejected the argument that the tweets should be afforded less protection because they were abusive towards a vulnerable group with a protected characteristic. In doing so the judge said that the tweets were expressing an opinion on a topic of controversy and that these views were shared with well respected academics. The applicant’s comments were afforded special protection because they fell into the category of political speech.

Accordingly, the actions of the police in applying the HCOG policy constituted a disproportionate interference with the applicant’s rights under Article 10.

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