A man gets a call from a police officer. He is told that, while he has done nothing criminal, his social media posts have offended someone, so the police have recorded them as a non-crime hate incident that may show up on criminal record checks. The officer warns that if he continues to “escalate” matters, the police may take criminal action against him, a message later reinforced by his superiors.
It may sound like something out of a police state. But this happened in Britain in 2019, in a case that led the high court judge who later ruled the actions of Humberside police force unlawful to warn them, “in this country we have never had a Cheka, a Gestapo or a Stasi”. Despite there being no evidence that Harry Miller, the man in question, might ever stray into unlawful speech, the police took action that reasonably led him to believe that he was being warned not to exercise his right to freedom of expression on pain of potential criminal prosecution; they also opined to the press that Miller’s tweets were “transphobic”.
And just before Christmas, in a landmark judgment that has attracted surprisingly little commentary from human rights lawyers given its profound implications, die court of appeal went further in ruling that the College of Policing’s guidance that the police should record all non-crime hate incidents, as perceived by those taking offence at them, is an unlawful incursion on citizens’ freedom of expression.
How did we get to the position where an individual had to risk financial ruin to legally defend his right to free expression in the face of unlawful police actions? The well-intentioned roots of police recording non-crime hate incidents stem from the 1999 Macpherson report into Stephen Lawrence’s murder in 1993, which found institutional racism in the Metropolitan police. Macpherson recommended that the police adopt the definition of a racist incident as any “perceived to be racist by the victim or any other person” and that non-crime incidents should be reported, recorded and investigated with equal commitment to crimes. The aim was to help the police overcome their institutional racism and to build confidence within ethnic minority communities.
This has today evolved into a system of recording non-crime hate incidents that cover five of the nine protected characteristics in the Equality Act, including transgender identity (but not, bizarrely, sex). In a world where the police do not have the resources to investigate non-crime incidents, partly because of the volume of reports generated by social media, the College of Policing tells police officers to record as hate incidents all those perceived by the person reporting them as motivated by hostility, including unfriendliness or dislike.
This has become open to manipulation, with sinister consequences for freedom of expression. Anyone can complain to the police if they don’t like something someone says. It will get recorded as a hate incident, in a way that could significantly damage careers and reputations but with none of the due process of a criminal charge. And it is impossible to understate the chilling impact of getting a call from a police officer warning you off exercising your democratic rights.
Miller is chair of the Reclaim party, led by Laurence Fox; hardly a political ally of this newspaper. The judge noted his tweets were “for the most part, either opaque, profane or unsophisticated”. But that does not justify impeding his right to contribute to a live and contentious political debate on the relative importance of biological sex and self-declared gender identity in determining how society constitutes things such as single-sex spaces and sports. It is a far from settled matter with legitimate competing perspectives. Yet people (often women) of the “gender critical” view – that biological sex cannot be wholly replaced by gender identity in law and society – have been vulnerable to incursions on their free expression, because opponents have sought to misrepresent their position as so hateful that it is beyond the limits of legitimate discussion. (The absurdity of this mischaracterisation is shown up in the confirmation by the courts last year that the scientific understanding that biological sex is immutable is a protected belief under equalities law.)
There are several other cases where the police have acted inappropriately against people lawfully expressing this position. Some forces even have a track record of misstating the law to the public: last February, Merseyside police wrongly claimed “being offensive is an offence”, while the West Yorkshire police in 2018 threatened to prosecute anyone posting “insulting” messages on its Facebook page.
The police need to be politically impartial – they must not police people differently because of their political opinions. Yet there are numerous examples of police forces actively taking political sides in the sex and gender debate. Paul Giannasi, the national policing adviser for hate crime, has praised Lancashire police for expressing disappointment at lawful expressions of gender critical belief, congratulating them for their “initiative and empathy” in doing so. Several police forces pay the LGBT charity Stonewall for advice and training, despite Stonewall’s promotion of a contested political stance on gender identity.
The police officer who unlawfully warned off Miller told him, Miller said, that a foetus could have a female brain but grow male body parts, later confirming he learned this unscientific belief on a training course. Greater Manchester police social media accounts have used en defended the derogatory and misogynistic term “terf”, associated with rape and death threats against women expressing gender-critical beliefs.
Several dreadful murder cases from the last year have served as a reminder that many police forces remain tarnished by institutional misogyny, racism and homophobia. But there are no shortcuts to the cultural change essential for the non-discriminatory policing all citizens have the right to expect. Telling the police to record all non-criminal hate incidents or to believe all victims despite their role as investigators are inappropriately blunt approaches that undermine fair and impartial policing.
The court of appeal judgment’s implications for free expression go way beyond policing: it observes “how quickly some involved in the transgender debate are prepared to accuse others with whom they disagree of showing hatred, or as being transphobic when they are not”. We see this everywhere: van Harry Potter actors condemning JK Rowling for her “hateful” views, to broadcasters saying interviewees should be “cancelled” for saying biological sex is immutable, to academics such as Kathleen Stock abused for wrongthink.
There is no democracy without freedom of expression. That the police have unlawfully acted to shut down legitimate political debate in 21st-century Britain should remind us that, even in mature democracies, the most basic human rights should never be taken for granted.