This recording of “non-crime hate incidents” was required, even without any evidence of “hate”.
The (non-statutory) guidance was published in 2014.
The Court of Appeal judgment says that its genesis can be traced back to the recommendations made by a report which followed a public inquiry after the murder of Stephen Lawrence in April 1993.
Amongst its recommendations were that the police adopt the definition of a racist incident as “any incident which is perceived to be racist by the victim or any other person”.
Recommendation 13 adds that the term “racist incident” must be understood to include crimes and non-crimes in policing terms. “Both must be reported, recorded and investigated with equal commitment,” the report said.
The Court of Appeal has now ruled that this guidance encourages conduct which violates Article 10 of the ECHR, which protects the right to freedom of expression.
Article 10 states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
In the case, Harry Miller, a shareholder in a plant and machinery company in Lincolnshire and an ex-police officer who formerly taught in higher education, brought a judicial review against the College of Policing and Humberside Police.
He acted after an officer from that force visited him at work over allegedly "transphobic" tweets.
Miller believes that transgender women are men who have chosen to identify as women.
Miller was strongly advised by the visiting police officers to cease tweeting "gender critical" messages.
When he asked the policeman why he was wasting his time, the officer said: “I need to check your thinking".
After lodging a formal complaint, Miller was told that his tweets were “transphobic” and that the force aimed to ensure that such “hate-related incidents” do not “escalate”.
In 2020, the High Court found that the police’s actions “led [Mr Miller], reasonably, to believe that he was being warned not to exercise his right to freedom of expression about transgender issues on pain of potential criminal prosecution.”
Mr Justice Julian Knowles ruled: “The effect of the police turning up at [Miller’s] place of work because of his political opinions must not be under-estimated.
“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.”
Ian Wise QC, acting for Miller, told the Court of Appeal that his client never objected in principle to the police recording non-crime incidents, so long as they are relevant to police functions, nor did he object to a record being made of the fact that a complaint was made.
Miller’s complaint centred on the uncritical recording of such as “non-hate crime incidents” without any investigation or inquiry as to their veracity and regardless of whether there was any objective evidence to support the complaint.
The High Court held that Humberside Police’s actions breached Miller's Article 10 rights.
However, Miller’s wider challenge to College of Police guidance was rejected.
Now the Court of Appeal has unanimously overturned that decision.
Judge Victoria Sharp said the policing guidance did “sanction or positively approve or encourage unlawful conduct … which violates Article 10.”
The judge added that “perception-based recording” has a legitimate aim “linked to the prevention of disorder or crime and the protection of the rights of others", which is “sufficiently important to justify interfering with the fundamental right to freedom of expression."
However, the judge held that “less intrusive means could have been used to achieve those legitimate aims.”
The judge added that it is important that police officers do not over-react to non-crime incidents since this could leave them vulnerable to civil legal action or criticism in the media and could also undermine community confidence in policing.
The guidance requires the recording of a non-crime hate incident "if the perception of the victim or any other person is that it is motivated, for example, by spite or ill-will against a protected strand, irrespective of whether there is evidence to support that perception or not," she said.
The judge continued: “Thus, the guidance contemplates on its face the recording by the police of incidents as non-crime hate incidents, which are, to put it shortly, non-crime non-hate incidents.”
The judge added that perception-based recording of non-crime incidents is not per se unlawful but said that “some additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary.”
Outside court, Miller said: “Being offensive is not, cannot and should not be an offence.”
Being offensive is one of the cornerstones of freedom, he told the media.