UK — England; Wales. A man has scored a landmark victory after a Court of Appeal ruled that the police’s definition of a “hate incident” is unlawful and had a “chilling effect” on his freedom of expression.

In January 2018, Humberside Police called Harry Miller, their colleague and a business owner, while he was at work and interrogated him for 34 minutes over 31 tweets he posted and other tweets he shared. Mr Miller had come to police attention after a male, identified in court papers as “Mrs B,” a “postoperative transgender woman,” read his Twitter feed. Deeming Mr Miller’s feed offensive, the individual filed a police complaint.

One of the tweets that reportedly caught the attention of Humberside Police was the following by Mr Miller: “I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me. F**kers.” The police noted that Mr Miller had indicated agreement with such tweets as “trans women are not women” and retweeted a song written by Ali Bee:

Your breasts are made of silicone
your vagina goes nowhere
And we can tell the difference
Even when you are not there
Your hormones are synthetic
And let’s just cross this bridge
What you have, you stupid man
Is male privilege

According to the officer who called Mr Miller, a “transgender person” reading such messages would consider them to be “motivated by a hostility or prejudice against a person who is transgender.” The officer lectured Mr Miller to “check his thinking,” professing: “Sometimes, a woman’s brain grows a man’s body in the womb, and that is what transgender is.”

Despite acknowledging that Mr Miller had done nothing illegal, the officer wrote up Mr Miller for a “hate incident” in a report that labeled Mr Miller a “suspect.”

The write-up followed the College of Policing’s Hate Crime Operational Guidance (HCOG). Issued in 2014, the HCOG’s guidance requires: “Where any person, including police personnel, reports a hate incident which would not be the primary responsibility of another agency, it must be recorded regardless of whether or not they are the victim, and irrespective of whether there is any evidence to identify the hate element.” While a non-crime hate incidents is not disclosed on an ordinary criminal record, it may be disclosed on an “enhanced criminal record certificate” requested by certain employers.

Mr Miller, a former police officer who describes himself as gender-critical and whose concern is that enabling men to obtain legal recognition as women jeopardizes women’s sex-based rights, is far from the only one who has been affected by the HCOG’s guidance. Last February, police said they had recorded almost 120,000 ‘non-crime hate incidents’ between 2014 and 2019.

Mr Miller launched a legal challenge against the Humberside Police’s actions and the College of Policing’s guidance at the High Court.

On 14 February, 2020, the High Court ruled that the police response was unlawful and its actions were a “disproportionate interference” with Mr Miller’s right to freedom of expression. Justice Julian Knowles found that having the police turning up at one’s place of work “because of his political opinions must not be underestimated,” as “to do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.” However, the High Court let the HCOG’s guidance stand, finding that it “serves legitimate purposes and is not disproportionate.”

On 20 December 2021, the Court of Appeal overturned the High Court ruling on the HCOG, finding that the policing guidance breached Mr Miller’s freedom of expression rights. While recording non-crime hate incidents is important to allow police to analyze community tensions before they escalate into something serious, the HCOG must use less intrusive means, the court decided. The HCOG must review its guidance and provide more safeguards for freedom of speech.

The volume of non-crime hate speech is enormous and the police do not have the resources or the capacity to investigate all the complaints that are made.

The document noted that it would “leave the police vulnerable to civil legal action or criticism in the media” and “undermine community confidence in policing” if officers are seen as overreacting to non-crime incidents.

Toby Young, General Secretary for the Free Speech Union, praised Mr Miller:

The Free Speech Union is proud to have played a part in winning this landmark victory, but the lion’s share of the credit must go to Harry Miller.

Thanks to his courage and tenacity, we can all rest a little easier in our beds tonight, knowing the police are not about to knock on our doors because we’ve made an inappropriate joke on Twitter. They should be policing our streets, not our tweets.