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UK gets massive free speech win as Court of Appeal rules police’s definition of a “hate incident” is unlawful and had “chilling effect” on speech

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An ex-cop has won a UK Court of Appeal challenge over a guidance by the College of Policing on “hate incidents,” after he claimed that the guidance violates his freedom of expression.

Harry Miller, a former police officer, had a complaint filed against him in January 2020 after posting allegedly “transphobic” tweets.

The Humberside Police force recorded the complaint as a “non-crime hate incident,” which the College of Policing defined as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice.”

In February 2020, Miller challenged the action taken by Humberside Police and the guidance by the College of Policing at the High Court.

The judge ruled that the actions by the Humberside Police were a “disproportionate interference” to his freedom of expression.

But the judge ruled against him in the challenge to the guidance by the College of Policing, ruling that the guidance “serves legitimate purposes and is not disproportionate.”

But the Court of Appeal found that the guidance also violated Miller’s freedom of expression.

“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… regardless of whether there is evidence that the speech is motivated by such hostility,” said Dame Victoria Sharp of the Court of Appeal.

“The volume of non-crime hate speech is enormous and the police do not have the resources or the capacity to investigate all the complaints that are made.

“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 of expression.

“There is no provision for proportionality to be applied to recording [the incident]. And the guidance says nothing about the language to be used or whether someone should be notified that a record, flagged as a hate incident, has been made of a complaint against them.”

Following the High Court’s ruling in favor of Miller in the challenge against the police force’s actions, the College of Policing “fully replaced” the guidance to include “a strong warning against police taking a disproportionate response to reports of a non-crime hate incident.”

While delivering her ruling, Dame Victoria Sharp said: “In my opinion [the revisions] do not go very far or not nearly far enough to address the chilling effect of perception-based recording more generally.”

The College of Policing will have to review the guidance to better protect the freedom of speech.

Speaking outside the court following the ruling, Miller described being offensive as “one of the cornerstones of freedom.”

“Being offensive is not, cannot and should not be an offense,” he added.

“Only when speech turns to malicious communication or targeted harassment against an individual should it be a problem.”

In an interview on Talk Radio, Miller said: “These people [College of Policing] are complete and utter idiots. They went all through the High Court trying to argue that there’s such a thing as a non-crime, crime and non-hate, hate. They need shutting down.

“The consequences are far reaching. Up until today, a non-crime hate incident could appear on your record and police could send it to your employer to prevent you from getting a job or a promotion.

“This is a great day for British democracy and freedom. We have kicked it out of the park.”

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