The police body in England and Wales’s guidance on recording non-crime “hate incidents” has interfered with the right to freedom of expression, the Court of Appeal ruled on Monday.
The challenge to the guidance was brought to court by former police officer Harry Miller, who was visited by police in 2019 after his Twitter posts were reported as being transphobic by a self-described “postoperative transgender woman” identified in court documents as Mrs. B.
Humberside Police decided to record Miller’s Twitter activity as a “non-crime hate incident,” defined by the College of Policing’s guidance as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice.”
Miller previously won a challenge to Humberside Police’s actions at the High Court, but his challenge to the guidance was dismissed, with the judge finding that it “serves legitimate purposes and is not disproportionate.”
The Court of Appeal ruled on Monday that the guidance “clearly constituted a real and significant interference with the right to freedom of expression,” and that the risk of recording such cases “had the potential to create a chilling effect in relation to public debate on a controversial issue.”
The judge, Dame Victoria Sharp, also said that while the guidance “pursued the legitimate aims of the prevention of crime and the protection of the rights of others … the aims could be achieved by less intrusive measures and the overall impact of the measures on the right to freedom of expression was therefore disproportionate.”
Sharp said that the “lack of any ‘common-sense’ discretion not to record irrational complaints” in the guidance meant there was a risk of police recording “essentially non-crime non-hate incidents.”
Speaking outside court, Miller said the College of Policing had “failed to protect the liberty that used to be taken for granted by the citizens of this great nation” by “framing reality, inquiry, and dissent as prejudice, bigotry, and hate.”
Assistant Chief Constable Iain Raphael from the College of Policing said after the ruling that the police body will “listen to, reflect on, and review this judgment carefully and make any changes that are necessary.”
In a statement published on its website, the College of Policing cautioned officers to “apply their judgement in establishing whether there is hostility towards a protected characteristic group” and not record the incident as a hate incident in the absence of such hostility.
Following the judgement, free speech campaigners have called on the police to delete their non-crime hate incidents records.
Speaking to MailOnline on Tuesday, Toby Young, director-general of the Free Speech Union, said police forces “have no choice but to delete all these records immediately.”
Political commentator Darren Grimes also told the publication that he agreed the government should look to delete the records “for thousands of people up and down the country.”
He also said that the recordings have wasted “precious police time and resources,” and that police should be put back on the street and taken off people’s tweets.
Grimes was also investigated by police earlier this year after he was reported for “stirring up racial hatred” over a guest’s race-related comment on his YouTube show “Reasoned.”
The police later ended the investigation, deeming it “no longer proportionate” after public figures including Home Secretary Priti Patel voiced their support for Grimes.
PA contributed to this report.