Court of Appeal rules police ‘hate incidents’ guidance unlawful

Police guidance on the recording of ‘hate incidents’ unlawfully interferes with the right to freedom of expression, the Court of Appeal ruled today.

The College of Policing’s guidance requiring forces to record incidents perceived to be ‘motivated by a hostility or prejudice against a person’ as ‘non-crime hate incidents’ – irrespective of any evidence of ‘hate’ – encourages conduct which violates Article 10 of the ECHR, the court held in Miller v The College of Policing.

Former police officer Harry Miller brought a judicial review against the College of Policing and Humberside Police after an officer from the force visited him at work over allegedly ‘transphobic’ tweets.

The High Court held that Humberside Police’s actions breached his Article 10 rights, with Mr Justice Julian Knowles saying: ‘The effect of the police turning up at [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.’

Miller’s wider challenge to the College of Police’s guidance was rejected. However, the Court of Appeal unanimously overturned that decision today. Giving the court’s ruling, Dame Victoria Sharp said the guidance did ‘sanction or positively approve or encourage unlawful conduct … which violates Article 10’.

She said ‘perception-based recording’ has a legitimate aim ‘linked to the prevention of disorder or crime and the protection of the rights of others’, which is ‘sufficiently important to justify interfering with the fundamental right to freedom of expression’. However, Sharp held that ‘less intrusive means could have been used to achieve those legitimate aims’.

The guidance requires the recording of a non-crime hate incident ‘if the perception of the victim or any other person is that it is motivated, for example, by spite or ill will against a protected strand, irrespective of whether there is evidence to support that perception or not’, she said.

Sharp added: ‘Thus, the guidance contemplates on its face the recording by the police of incidents as non-crime hate incidents, which are, to put it shortly, non-crime non-hate incidents.’

The judge held that perception-based recording of non-crime incidents is not ‘per se unlawful’, but said that ‘some additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary’.