Ex-officer claims police rules on 'hate' breach freedom of expression

Ex-officer who had ‘Gestapo’ police turning up at his work over tweet tells Court of Appeal that rules saying ‘hate incidents’ should be recorded even ‘without any evidence of hate’ breach freedom of expression

  • Former PC Harry Miller from Lincolnshire, describes himself as ‘gender critical’ 
  • He was visited at work by Humberside Police in 2019 over ‘transphobic’ tweets
  • Mr Miller challenged police and College of Policing’s guidance at High Court
  • His lawyers argued guidance unlawfully ‘violates right to freedom of expression’ 

A former police officer has told the Court of Appeal that police guidance requiring ‘hate incidents’ to be recorded, even ‘without any evidence of hate’, is denying the right to freedom of expression. 

Harry Miller, 54, who describes himself as ‘gender critical’, was visited at work by an officer from Humberside Police in January 2019 over allegedly ‘transphobic’ tweets.

An anonymous member of the public complained about Mr Miller’s tweets, leading Humberside Police to record the complaint as a ‘hate incident’.

According to the College of Policing’s guidance a hate incident is ‘any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice’.

Mr Miller is the founder of campaign group Fair Cop, which challenges police interference in speech. Pictured last month (middle) with Father Ted writer Graham Linehan on his right

Mr Miller, from Lincolnshire, challenged Humberside Police’s actions and the College of Policing’s guidance at the High Court.

Last year, the High Court ruled that Humberside Police’s actions were a ‘disproportionate interference’ with Mr Miller’s right to freedom of expression.

Mr Justice Julian Knowles said: ‘The effect of the police turning up at (Mr Miller’s) place of work because of his political opinions must not be underestimated.

‘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.’

Former police officer Harry Miller outside the Royal Courts of Justice, London, ahead of a hearing at the Court of Appeal in his legal challenge to College of Policing guidance today

Who are Fair Cop? Organisation set up by Harry Miller after police grilling over tweets

The organisation founded by Mr Miller in May 2019 has formed from concerns about police attempts to criminalise people for opinions that are not against the law.

On its website the group says:  Some of us have been victims of police interaction following social media activity; some are police officers ashamed at police action. 

‘All of us are furious with the ‘Big Brother’ overreach of various police forces and other authorities. 

‘We are united in our aim of enforcing existing laws governing freedom of speech, conscience and assembly – rights that belong to us all in this country.’

The group adds that it works to work with the police in order to improve existing guidelines around speech. 

But Mr Miller’s challenge to the College of Police’s guidance was dismissed, with the High Court finding that it ‘serves legitimate purposes and is not disproportionate’.

At the Royal Courts of Justice in London on Tuesday, Mr Miller’s lawyers argued the College of Policing’s guidance – which has since been updated – unlawfully ‘violates the right to freedom of expression’.

Ian Wise QC said the guidance pursues ‘the legitimate aim of preventing disorder and crime’, but it does so ‘in a disproportionate manner’.

He said in written submissions: ‘A policy that mandates the recording of a ‘hate incident’ without there having to be any evidence of hate is quintessentially irrational and unreasonable as a matter of common law.’

Mr Wise also argued that the guidance was uncertain, because ‘the reasonable – or indeed any – reader of the guidance simply would not know whether a particular statement would be recordable under the guidance’.

Jason Coppel QC, representing the College of Policing, said any interference with the right to freedom of expression ‘is proportionate to the legitimate aims pursued by the guidance’.

He also said it had been ‘fully replaced’ by new guidance, which includes ‘a strong warning against police taking a disproportionate response to reports of a non-crime hate incident’, and directly referenced the High Court’s ruling.

Mr Coppel argued in written submissions that ‘perception-based recording of the hate element of an incident’ was important for the police. 

He said monitoring hate incidents ‘assists in the prevention of the escalation of hate-based activity’ and ‘helps inform police action’.

One of the messages which Mr Miller was known to have retweeted was a poem which included the line: ‘Your vagina goes nowhere’

An example of one of the tweets Mr Miller has posted on his social media account

Mr Coppel also argued that recording incidents on the basis of perception ‘avoids ‘secondary victimisation’, where a negative response given by an authority to a complaint of a hate incident results in those victims suffering further harm’.

An anonymous member of the public complained about Mr Miller’s tweets, leading Humberside Police to record the complaint as a ‘hate incident’

Speaking outside court before the hearing, Mr Miller said: ‘Why we are here today is because we think it is entirely bizarre that following the guidance – as Humberside Police did – is illegal, but the guidance which they followed is legal.’ 

Mr Miller said he had ‘a huge amount of sympathy for regular police officers’ who had to follow the guidance.

He added: ‘If following the guidance as assiduously as Humberside followed it can lead to the force being likened to the Gestapo, then we have to ask questions of the guidance.’

In a statement before the hearing, Assistant Chief Constable Iain Raphael from the College of Policing said: ‘Our guidance is aimed at protecting people who may be targeted because of who they are.

‘We know this is an area where people may be reluctant to report hate incidents to us because of the very personal nature of what they experience or perceive.

‘We welcome the scrutiny of this case. Hate crime can have serious consequences and it is vital the police have the right tools to help them protect the public.’

The hearing before Dame Victoria Sharp, Lord Justice Haddon-Cave and Lady Justice Simler is due to conclude on Wednesday afternoon.

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