Court of Appeal rules police guidance on ‘hate incidents’ must change

21 December 2021

Ex-police officer Harry Miller has won his case challenging police guidance about recording non-crime hate incidents (NCHI) when they are “perceived, by the victim or any other person, to be motivated by a hostility or prejudice”.

Dame Victoria Sharp said in the judgment: “…there is nothing in the Guidance about excluding irrational complaints, including those where there is no evidence of hostility, and little, if anything to address the chilling effect which this may have on the legitimate exercise of freedom to expression.”

Outside court, Miller said: “Being offensive is not, cannot and should not be an offence…only when speech turns to malicious communication or targeted harassment against an individual should it be a problem.”

‘I need to check your thinking’

Miller had taken his case to the Court of Appeal after challenging Humberside Police for its investigations into his tweets. Miller was visited by police at his workplace after a complaint was made that he had sent transphobic tweets and that his office was therefore ‘not safe for trans people’.

In February 2020, the High Court ruled in Miller’s favour, with the judge Justice Julian Knowles comparing the actions of the police to George Orwell’s novel 1984, which famously describes a totalitarian state with police investigating and punishing people with politically-incorrect opinions for ‘thoughtcrime’.

However, the High Court found at the time that police merely recording the incidents was lawful. It was this decision that was referred to the Court of Appeal, which has now ruled in Miller’s favour.

Miller wrote for our website after the Court of Appeal hearing that he was “the wrong man to accuse of a hate incident”:

Accused of a crime, [Lady Justice Simler] noted, she could at least rely on the presumption of innocence. By contrast, accused of an NCHI, not only are the police relieved of the tiresome burden of proof, they are not even required to provide evidence. All that is necessary for an accusation to stick is the pointing finger of an accuser. No wonder Lady Simler raised a brow. In a less reverential setting, she might have raised the roof.

These NCHI records, without proof and without any recourse for the accused, could show up on a criminal records check – potentially giving Miller and others like him difficulty when applying for jobs. This in turn has a chilling effect on free speech – all it could take is an accusation of hate and you could end up on a police database for 6 years.

The decision means that the College of Policing now needs to change its guidance on recording these non-crime hate incidents, so that it does not disproportionately interfere with freedom of expression.

Disagreement labelled as ‘hate speech’

Andrea Minichiello Williams, chief executive of Christian Concern and the Christian Legal Centre said:

“We welcome this judgment and are grateful for the judges’ recognition of the importance of freedom of expression.

“For too long, non-crime hate incidents have been weaponised against people who’ve spoken truthfully about sexuality and gender in particular. Christians who hold to Biblical beliefs on these matters have been targeted by campaigners who label disagreement as hatred.

“This has too often been made worse by police confirming to journalists that they are investigating these incidents and media outlets reporting as if hate crime has actually happened. This has a strong chilling effect on free speech – after all, who wants newspapers reporting that they are being investigated for hate speech?

“Christians are called to speak the truth in love. This judgment should embolden them to speak truthfully even about controversial issues, remembering that love ‘rejoices with the truth’.”

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