The Court of Appeal in the United Kingdom has ruled that recording ‘non-crime hate incidents’ is unlawful interference with freedom of expression.
The ruling follows an appeal by former constable Harry Miller over his being investigated for retweeting a poem that was considered by a complainant to be ‘transphobic’.
The ruling, handed down on 20 December, has been described by the Free Speech Union as a ‘landmark judgment’.
Toby Young, General Secretary of the Free Speech Union, expressed pride in having played a role in protecting freedom of expression by assisting in Miller’s case, but said ‘the lion’s share of the credit must go to Harry Miller’, whose courage and tenacity ultimately won the day.
In 2019, Harry Miller was contacted by Humberside Police after they received a complaint from a third party regarding a poem that Miller had retweeted.
As offending another person is not a crime, police informed Miller that he was being investigated for a ‘non-crime hate incident’.
Andrew Doyle, writing for GB News, says that when asked by Miller to clarify the purpose of the investigation, he was told by the police: ‘We need to check your thinking’.
Following the incident, Miller brought a court case against the College of Policing, arguing that ‘the idea that a law-abiding citizen can have their name recorded against a hate incident on a crime report when there was neither hate nor crime undermines principles of justice, free expression, democracy and common sense’.
A ‘non-crime hate incident’ is defined as an act ‘perceived by the victim, or anybody else, to be motivated by hostility or prejudice based on the five protected characteristics’ (disability, race, religion, sexual orientation, and gender), and was adopted under the Hate Crime Operational Guidelines in 2014.
A total of 119 134 ‘non-crime hate incidents’ were recorded in England and Wales between 2014 and 2019. Records of this nature remain in criminal record checks for six years. This information prompted the court in Miller’s case to state that this is likely to have had a ‘chilling effect’ on public debate.
Examples of recorded hate incidents include an accusation of ‘racial hatred’ against a man for whistling the Bob the Builder theme tune at his neighbour, and an investigation of racism against police officer David Warwick, who said jokingly ‘Maybe I should start eating curry’ on hearing of an Asian man living to the age of 105.
In light of the court judgment, the UK Government plans to reconceive laws on ‘hate incidents’. Home Secretary, Priti Patel, believes that ‘actual crimes, not hurt feelings’ should be the purview of police investigative efforts.
Campaigners have subsequently called for all recorded ‘hate incidents’ to be wiped from police records.
The Free Speech Union’s Toby Young summed up his feelings by saying: ‘They [the police] should be policing our streets, not our tweets.’