Hate Crimes Guidance ruled unlawful.

And now the real work starts. How was this ever allowed to happen?

Judgment was FINALLY handed down in Mr Miller’s appeal against a refusal to strike down the Hate Crimes Guidance produced by the College of Policing. He had 5 grounds of appeal and succeeded on two. The judgment is here.

Sarah Phillimore @SVPhillimore

dailymail.co.ukEx-officer whose tweets were recorded as hate incident wins rulingHarry Miller, a former officer who describes himself as ‘gender critical’, was approached by colleagues at Humberside Police over allegedly ‘transphobic’ tweets in January 2019.

What follows is my first reaction and favourite quotes. There will be much to unpick in the coming months - how was this allowed to happen? How can we ensure it doesn’t happen again? What will happen to the many thousands of recordings currently sitting on police data bases?

But first, let’s take time to enjoy the forensic demolition by the Court of Appeal of the arguments put forward by the College of Policing.

"Mr Miller’s challenge is centred ... on the requirement of perception- based recording, and in particular, the requirement in Section 6.3 that a hate incident ... must be recorded as such “irrespective of whether there is any evidence to identify the hate element”.

Para 34 "The topic on which Mr Miller was tweeting and its broader implications are plainly important matters of public interest on which strong views are held and publicly expressed"

Grounds of appeal set out at para 52.

Para 67 - arguments on common law right to record dismissed; Article 10 argument succeeds.
"With respect to the judge, I am unable to agree with his conclusions that the impugned provisions of the Guidance do not constitute an interference with ..right to freedom of expression."

Para 69 - this is an important debate
"Further, the context of the debate to which Mr Miller was contributing was complex multi-faceted and important, as was the evidence of Professor Stock and Jodie Ginsberg, which assisted in understanding its contours."

"Professor Stock’s evidence demonstrates 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 but simply hold a different view "

Para 71
"...the principles of law that protect freedom of expression and which underpinned much of what the judge said in support of his conclusion that the police
had infringed Mr Miller’s rights were matters that should have led to the same conclusion against the College."

Well. Quite.
"The respondent argues that different outcomes on the issue of interference ...are justified because of a distinction between the requirement to categorise on the one hand and the requirement to record... this approach is artificial ... and I am unable to accept it"

Para 72
"The contention made on behalf of the College therefore, that the Guidance does not require recording, and that recording happens separately is unsustainable in the circumstances."

Para 73
"In short, the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate. "

Para 103
"The judge’s view that the impugned parts of the Guidance did not encroach on freedom of expression, or if he was wrong about that, they did so barely at all, was an error of law that in my opinion skewed his approach at each stage of the analysis..."

Para 106
"The question in this case can therefore be framed as follows. Does the Guidance sanction or positively approve or encourage unlawful conduct viz, conduct which violates Article 10? In my judgment it does."

Para 114
"however, the internet and social media has profoundly changed how people communicate and infinitely increased their ability to use and abuse those means of communication..." As might be expected therefore... the sheer volume of abusive messages on social media means it is impossible for the police to investigate and make
decisions on the motives of everyone before deciding whether to record such incidents..."

Para 115
"But the prism provided by this case has been the public debate concerning transgender issues and the adverse impact that the Guidance has on freedom of expression in that context ...the chilling effect that it has on an important issue of legitimate public interest."

Para 117
"In particular, there is nothing in the Guidance about excluding irrational complaints, including those where there is no evidence of hostility, and little ...to address the chilling effect which this may have on the legitimate exercise of freedom to expression"

concluding para 123 - appeal allowed on grounds 3 and 5.
"The Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public."

Revised guidance is therefore unlawful and will have to be rewritten, to filter out the irrational and the malicious slightly better. I trust that photographs of my dog certainly fall in the first category. We shall see.