Miller v College of Policing: Social media, ‘non-crime hate incidents’, and the right to freedom of expression

An outline of the judgment in R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926 from James Lloyd, specialist professional discipline and regulatory barrister at Mountford Chambers.

On 20 December 2021, the Court of Appeal handed down judgment in R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926. In a judgment which may have significant implications for policing and professional regulators, the Court found that the appellant’s right to freedom of expression under Article 10 ECHR had been infringed by 2014 Guidance on the recording of non-crime hate incidents.

Background

Harry Miller is a former police officer. Between November 2018 and January 2019, he posted 31 tweets, including retweets, expressing what were subsequently described as ‘gender-critical views’. Those tweets were reported to Humberside police by a complainant who considered them to be transphobic.

Humberside Police decided to record the tweets as a “non-crime hate incident” in accordance with the College of Policing’s 2014 Hate Crime Operational Guidance. That decision was “simply on the say so of [the complainant] and without any critical scrutiny of the tweets or any assessment of whether what she was saying was accurate.”

Humberside Police created various crime reports in which Mr. Miller was described as a “suspect” and the complainant as a “victim”. As the Court observed, the “language and labels matter: anyone reading the Crime Report might understandably assume that Mr Miller was suspected of committing a hate crime against the transgender community.”

In addition, the decision was made to allocate the case to an investigating officer, who visited Mr. Miller’s place of work to discuss the tweets. That officer subsequently told Mr. Miller that police had been contacted about tweets posted which were transphobic and which Humberside Police had recorded as a non-crime hate incident. Mr. Miller was told by the officer that he had not committed a crime, but if his behaviour escalated then it may become criminal, and the police would need to deal with that appropriately. The officer “strongly advised” Mr. Miller to cease tweeting gender-critical sentiments.

Mr. Miller lodged a formal complaint with the Humberside Police Professional Standards Department about their conduct. A publicly posted statement from Assistant Chief Constable Young of Humberside Police on 28 January 2019 defended the force’s actions and described Mr. Miller’s tweets as “transphobic”; that the force aimed to ensure “hate related incidents” do not “escalate” and that “the correct decision was made to record the report as a hate incident.”

Acting Inspector Wilson of Humberside Police defended the force’s actions as proportionate in subsequent correspondence, suggesting Mr. Miller had been spoken to, to help him “understand the impact [his] comments could have on others and to prevent any possible escalation in the future”. Humberside Police also issued a statement to the Hull Daily Mail, including the claim that “there was never any suggestion he shouldn’t engage in politics or debate around the subject, he was just asked why he would want to, knowing it would cause distress and upset to others in society”.

Mr. Miller complained to the Humberside Police Appeals Body, requesting that the record of a hate incident in his name be removed from police records. The complaint was dismissed, the Appeals Body finding that appropriate Guidance had been followed.

Hate Crime Operational Guidance 2014

The Hate Crime Operational Guidance (“the 2014 Guidance”), issued in 2014 by the College of Policing, prescribed the national policy approach to the monitoring and recording of “non-crime hate incidents”.

The 2014 Guidance provides for “perception-based recording”: a policy that required the recording of a non-crime incident where the incident was perceived by the “victim” “to [have been] motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender [or relating to certain other protected characteristics].”

Under the 2014 Guidance, such incidents must be recorded by police, irrespective of the presence or absence of evidence of the “hate” element. Subjective perception of the victim is the qualifying factor.

Recorded non-crime hate incidents cannot be disclosed on ordinary criminal record certificates. However, they may be disclosed on an enhanced criminal record certificate requested from the Disclosure and Barring Service (“DBS”) by employers in relation to a list of certain positions, such as teachers, social workers and carers.

The decision whether to include information relating to a non-crime hate incident on an enhanced DBS will be taken by a chief officer in each local police force, under s.113B of the Police Act 1997, which provides that:

(4) Before issuing an enhanced criminal record certificate DBS must request any relevant chief officer to provide any information which –

(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and

(b) in the chief officer’s opinion, ought to be included in the certificate.

(4A) In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State.”

Guidance as envisaged in s.133B(4A) above was provided by the Secretary of State for the Home Department in August 2015 (“the SSHD Guidance”). The relevant provisions were summarised thus:

Principles for the chief officer to follow include: not disclosing information if it is trivial or simply demonstrates poor behaviour or poor lifestyle (para 15); ensuring information is sufficiently credible before disclosure (para 18); and considering whether the applicant should be offered the opportunity to make representations before the information is submitted (para 26).

The judicial review

By means of judicial review, Mr. Miller sought to challenge the 2014 Guidance and its application by Humberside Police; challenging the lawfulness of the relevant provisions as contrary to his right to freedom of expression, both at common law and as protected by Article 10 of the European Convention on Human Rights.

Deciding the review by order dated 14 February 2020, Julian Knowles J held that:

• Mr. Miller’s challenge to the legality of the 2014 Guidance under the common law and Article 10 of the Convention was unsuccessful;

• the mere recording of a non-crime hate incident based on an individual’s speech was not an interference with that person’s rights under Article 10(1), alternatively, was a permissible action in pursuit of the legitimate aims in Article 10(2);

• the Guidance did not give rise to an unacceptable risk of a violation of Article 10(1) on the grounds of disproportionality; but

• the police’s treatment of Mr. Miller in this case had disproportionately interfered with his right to freedom of expression.

The Judge made a declaration that the Humberside Police unlawfully interfered with Mr. Miller’s right to freedom of expression by, in combination:

• recording pursuant to the 2014 Guidance, 31 tweets posted by him on Twitter between November 2019 and January 2019 as a non-crime hate incident;

• the visit by an officer to Mr. Miller’s place of work to speak to him about the tweets;

• the officer’s warning that Mr. Miller might be prosecuted if he escalated matters;
  
  
• Assistant Chief Constable Young and Acting Inspector Wilson, referring to risks of escalation and directly or indirectly, to the risk of prosecution.

The Judge also made a mandatory order that Humberside Police amend its record of a non-crime hate incident to record that the Court had made a declaratory order in the above terms.

Appeal

Mr. Miller sought to appeal the decision of Julian Knowles J on five grounds, arguing respectively that:

Ground 1.

the 2014 Guidance was unlawful in the absence of statutory or common law authorisation;

Ground 2.

the 2014 Guidance on mandatory recording of ‘non-crime hate incidents’ without evidence of hate was unlawful:

Ground 3.

the judge was wrong to hold that the 2014 Guidance involved no interference with the right to freedom of expression under Article 10(1) ECHR;

Ground 4.

the 2014 Guidance did not satisfy the ECHR requirement of “foreseeability”, nor was any interference with Article 10(1) “prescribed by law”; and

Ground 5.

the judge was wrong in finding the relevant provisions of the 2014 Guidance to be proportionate and/or “necessary in a democratic society”.

Though the case was certified for ‘leapfrog’ appeal to the Supreme Court under s.12(3A) of the Administration of Justice Act 1969, by Order dated 30 July 2020, the Supreme Court refused permission, requiring the case to be heard first by the Court of Appeal. The Court’s judgment was handed down by Dame Victoria Sharp P on 20 December 2021.

Unsuccessful grounds

On grounds 1, 2 and 4 above, the Court of Appeal found against Mr. Miller.

As to Ground 1, the Court found:

• it was not correct that “any action which may interfere with the fundamental right to freedom of expression, unless clearly authorised by primary legislation, is unlawful;”

• the police have the power at common law to record and retain a wide variety of data and information; and
  
  
• no statutory authorisation is necessary in relation to non-intrusive methods of data collection, even where the gathering and retention of that date interferes with Convention rights.

[56] First, it is clear that no statutory authorisation is necessary in relation to non-intrusive methods of data collection, even where the gathering and retention of that data interferes with Convention rights. […] there are a great many areas of common law, which lawfully interfere with free speech rights, and are unsupported by primary legislation – common law contempt of court and common law breach of confidence being two such examples. It is not the case, therefore that as a matter of principle, any interference with free speech can only be lawful if there is a statutory basis for it. Indeed if there were such a principle, this would be a much more stringent restriction upon executive action than Articles 8 and 10 of the Convention, and large swathes of the common law would become inoperable.

[57] […] the boundaries of the principle of legality may be fertile ground for academic debate, but for the present, there is weighty authority, including authority binding on this court, that the principle is one of statutory construction. [The authorisation] principle is a constraint on the legislative actions of Parliament, preventing general words in legislation being construed incompatibly with fundamental human rights unless the express language or the necessary implication shows that Parliament intended those words to override such rights. It is not a free-standing ground for control of all types of action by public bodies, particularly the exercise of non-statutory power.

As to Ground 2, the Court did not accept that the criticism of recording incidents without evidence of malicious intent was a point distinct from wider arguments on the proportionality of the actions taken by Humberside Police.

[62] There is no challenge to the judge’s conclusion that the Guidance had a basis in domestic law, because it fell within the police’s general common law power to collect, use, retain and disclose information for the purposes of preventing and detecting crime […]

[63] What is in issue in this appeal however, is the judge’s conclusion that the mere recording of non-hate crime speech did not interfere with Mr Miller’s right to freedom of expression within the meaning of Article 10(1); [alternatively] the interference, such as it was, was justified within the scope of Article 10(2) because it was sufficiently foreseeable, and therefore prescribed by law and because it was necessary in a democratic society.

As to Ground 4, the Court found that the 2014 Guidance was sufficiently clear and publicly available so as not to fall foul of a lack of foreseeability or certainty. Particularly:

• Foreseeability requires the relevant provision to be formulated with sufficient precision to enable the citizen to regulate his conduct and foresee to a degree that is reasonable in the circumstances, if need be with appropriate advice, the consequences which a given action may entail; however

• [85] “Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances”;

• The 2014 Guidance clearly identified what category of incident must be recorded:

“the perception of the victim, or any other person (see 1.2.4 Other person) is the defining factor in determining whether an incident is a hate incident or recognising the hostility element of a hate crime. The victim does not have to justify or provide evidence of their belief, and police officers and staff should not directly challenge this perception. Evidence of hostility is not required for an incident …to be recorded as a hate crime or hate incident.”

• [86] “what is required is law which is “reasonably predictable, if necessary with the assistance of expert advice” but, except perhaps in the simplest cases, this does not mean that the law has to codify the answers to every possible issue which may arise”.

The Court considered that:

• The 2014 Guidance might result in cases “where there is no rational basis for concluding there is a hate element. [Further] there may be a difference on occasion between perception (which is what is considered to matter and be of central importance here, and which the recording is aiming to capture) and objective reality;” however

• Those dangers spoke not to the clarity of the Guidance, but to the proportionality of its application.

Successful grounds

In a stark departure from the reasoning of Julian Knowles J, the Court allowed Mr. Miller’s appeal in respect of Grounds 3 and 5, concluding that the operation of the 2014 Guidance (as opposed to the actions of Humberside Police) had amounted to an interference with Mr. Miller’s right to freedom of expression under Art.10: the operation of the 2014 Guidance resulted in a chilling effect on free speech relating to a debate on a matter of public importance which was not justified.

Ground 3 – interference with Art.10 rights

Reaching the decision that the 2014 Guidance did interfere with Mr. Miller’s Article 10 rights, the Court considered Strasbourg jurisprudence on the existence of chilling effects on free speech, and the circumstances in which they are liable to arise:

[68] The concept of a chilling effect in the context of freedom of expression is an extremely important one. It often arises in discussions about what if any restrictions on journalistic activity are lawful; but […] is equally important when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.

[70] Comparatively little official action is needed to constitute an interference for the purposes of Article 10(1) […] what the police had done (going to his place of work, warning Mr Miller that he would be at risk of criminal prosecution if he continued to tweet etc.) constituted an interference with Mr Miller’s Article 10(1) rights, even though he was not made subject to any formal sanction […]

[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 [2014 Guidance].

The Court emphasised that the protections of Article 10 are wide, and that the threshold for interreference is necessarily low, particularly where the speech or expression in question is political in nature, or relating to debates in the public interest:

[73] [The] Strasbourg court has made clear that there is wide protection for all expressive activities by virtue of a very broad understanding of what constitutes an interference with freedom of expression. That is particularly so in the context of political speech and debate on questions of public interest and the Strasbourg court has emphasised that there is “little scope under article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest”.

The interference with Mr. Miller’s rights by operation of the 2014 Guidance was identified thus:

[76] Mr Miller belongs to a group of people who could easily be stigmatised for their opinions and be subject to complaints by those offended by his views. He is able to contend that [the 2014 Guidance] violated his rights as he was required to modify his conduct because of them or risk having a “non-crime hate incident” being recorded against him; and he is member of a class of people who risks being directly affected by the measure. In this case, not only is there a chilling effect on future similar statements because of the fear of a record being made […] but there is also, at the very least, a non-trivial risk that in future such a record might be disclosed on an enhanced ECRC. […] But for the hate incident record, there would be no such risk. The record means that this risk is there and that inevitably has a chilling effect.

Ground 5 – proportionality and necessity

Considering the proportionality of the infringement upon Mr. Miller’s Article 10 rights, the Court undertook an assessment of the legitimate aims to which the 2014 Guidance is directed; and the availability of less intrusive alternatives.

Having conducted that assessment, the Court concluded that:

[117] The net for non-crime hate speech is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility against one of the protected strands, regardless of whether there is evidence that the speech is motivated by such hostility. The volume of non-crime hate incidents is enormous, and the police do not have the resources or the capacity to investigate all the complaints that are made. It is reasonable to suppose therefore that most will remain uninvestigated. There is in any event very little that can be filtered out of that net, subject to specified limited exceptions. In particular, there is nothing in the Guidance about excluding irrational complaints, including those where there is no evidence of hostility, and little, if anything to address the chilling effect which this may have on the legitimate exercise of freedom to expression. Even so, where the perception of the complainant is that speech is motivated by hostility towards one of the protected strands, the Guidance says it must be categorised as a non-crime hate incident; and the language used (of a non-crime hate incident and a victim) is capable of unfairly stigmatising those against whom such a complaint is made. There is no provision for proportionality to be applied to recording. And the Guidance says nothing about the language to be used in any such record, or whether someone should be notified that a record, flagged as a hate incident has been made of a complaint against them, leaving such issues to individual forces to decide.

[122] Less intrusive measures could be used to achieve the legitimate aims of such recording, without unacceptably compromising the achievement of those aims. That is not to say that perception-based recording of non-crime incidents is per se unlawful, but that some additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary.

The Court therefore concluded that the 2014 Guidance amounted to a disproportionate interference. Revisions to the 2014 Guidance put before the Court were not met with approval, the Court noting (at [122]) “These revisions (with their greater emphasis on proportionality) appear to be designed to meet the criticisms made of the police conduct in this case [however] they do not go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally.”

Possible implications

Recent years have seen a sharp increase in police and regulator activity in the sphere of online communication and social media use, corresponding with a dramatic increase in the number of reports of online ‘hate speech’.

The Government’s promised response has taken the form of the Online Safety Bill; a bill draped in its own controversy.

That controversy should trouble professional regulators too, as they come under increasing pressure to venture into and moderate the online behaviour of those they regulate. The trend is already upon us: in December 2021 – for example – the Bar Standards Board reported a marked upturn in complaints relating to barristers’ social media use. Regulators’ struggle to strike the balance between public interest and private rights appears to be a developing theme.

This judgment provides a timely reminder of the importance of convention rights, even where those rights are qualified; and of the care which must be taken to exhaust less intrusive means before bowing to this social tide. The judgment represents the latest in a series of cases in which the Courts have had cause to issue clarification. It is unlikely to be the last.

About the author:

James Lloyd has considerable experience acting for professional regulators and regulated professionals. He is frequently instructed in fitness to practise matters in medical and healthcare tribunals. He acts in professional discipline cases involving other regulated professions, including police officers, solicitors, barristers, teachers and those working within financial services. His advisory practice includes professional regulation, professional discipline and data protection.