Of Tweeting and Transgender Rights

February 17th, 2020

Over the years, Panopticon has discussed a number of cases about the powers of the police to record, retain, and disseminate information about individuals.  The judgment of Mr. Justice Julian Knowles in R (ota Harry Miller) v (1) The College of Policing, and (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin) is a significant contribution to the law in this area.  In Panopticon terms the case is unusual, in that the issues are discussed by reference to the right to freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”), rather than by reference to Article 8 or data protection legislation.

An important part of the context for the case is the current political controversy regarding the status of transgender people, including proposals to reform the Gender Recognition Act 2004 so as to replace the current requirements for obtaining a Gender Recognition Certificate (GRC) with an approach that places greater emphasis on an individual’s self-identification of their gender.  Reforms along these lines were the subject of a Government consultation in 2018.  In this respect also, the case takes Panopticon into hitherto unchartered waters.

The relevant facts

Harry Miller, the Claimant, is a former police officer, now a shareholder in a plant and machinery company in Lincolnshire.  He has strong views on transgender issues.  In his written evidence, he described his position as follows:

I believe that trans women are men who have chosen to identify as women.  I believe such persons have the right to present and perform in any way they choose, provided that such choices do not infringe upon the rights of women.  I do not believe that presentation and performance equate to literally changing sex; I believe that conflating sex (a biological classification) with self-identified gender (a social construct) poses a risk to women’s sex-based rights; I believe such concerns warrant vigorous discussion which is why I actively engage in the debate.  The position I take is accurately described as gender critical.

Mr. Miller’s active engagement in this debate was conducted on Twitter, under the account name @HarrytheOwl.  Between November 2018 and January 2019 he posted 31 tweets, which broadly speaking expressed the views summarised above, if in less careful language.  His Counsel described the tweets as being “provocative”.  The Judge said that for the most part the tweets were “either opaque, profane, or unsophisticated” but that nevertheless, they were expressions of opinion on a subject of current controversy, namely gender recognition.

In early January 2019, Mr. Miller’s tweets came to the attention of a Mrs. B, who is transgender.  She lives in the north-west of England, some distance from Mr. Miller, and the two are not acquainted.  The tweets were drawn to Mrs. B’s attention by a friend.  She was offended by them, and complained to Humberside Police (since Mr.  Miller was the chairman of a company based in that area).  She made her complaint online, and it was then passed to Humberside Police’s Crime Reporting Team. Under a policy issued by the College of Policing (“COP”), called the Hate Crime Operational Guidance (“HCOG”), Humberside Police recorded the matter as a non-crime hate incident.  They created a document called a “Crime Report Print” in which Mrs. B was referred to as “the victim” and Mr. Miller as “the suspect”.  The matter was then referred to PC Gul, a Community Cohesion Officer, who decided to speak to Mr. Miller.  He went to Mr. Miller’s workplace: Mr. Miller was not there, so PC Gul telephoned him.  Subsequently, after the matter reached the press, Assistant Chief Constable (ACC) Young of the Humberside Police made a public statement about the matter.  Mr. Miller complained to the police about their handling of the matter, without success.

There was some dispute as to what was said between Mr. Miller and PC Gul, and (in the absence of oral evidence) the Judge could not fully resolve this.  Nevertheless, the Judge was able to reach the following conclusions of fact:

(a) PC Gul visited the Claimant’s place of work in his capacity as a police officer, albeit he did not think he was exercising any powers of a police officer; (b) he left a message requesting that the Claimant contact him; (c) they subsequently spoke on the telephone; (d) during that call PC Gul misrepresented and/or exaggerated the effect of [sic] the Claimant’s tweets had had and the number of complaints the police had received; (e) PC Gul warned the Claimant that if he “escalated” matters then the police might take criminal action; (f) he did not explain what escalation meant; (g) ACC Young also publicly referred to escalation; (h) when the Claimant complained, the police responded by again referring to escalation and criminal proceedings.

Put shortly, Humberside Police not only recorded the incident by reference to the Claimant’s name, but informed the Claimant that if he took (unspecified) further steps by way of “escalation” of his activities then this could lead to prosecution for (unspecified) criminal offences.

The claim and the outcome

The Claimant brought a claim for judicial review against both the COP and the Chief Constable of Humberside.  He put his case in two ways.  His first, wider argument was that HCOG was unlawful, as being contrary to his right to freedom of expression at common law and/or under Article 10. His second, narrower argument was that the actions of the police in recording the allegation against him, and in their subsequent dealings with him, amounted to an unlawful interference with his rights under Article 10.

The judgment begins with a series of citations that set the tone for what follows.  One is from the unpublished introduction to George Orwell’s “Animal Farm”:

If liberty means anything at all, it means the right to tell people what they do not want to hear.

Another is from Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …

Despite that starting-point, on the first argument, the claim failed.  The Judge held that HCOG did not, in itself, give rise to any interference with Mr. Miller’s Article 10 rights.  Alternatively, if there was any interference then it was justified under Article 10(2).  Notably, the Claimant’s attack on HCOG was based solely on Article 10. No claim was put forward under ECHR Article 8 (the right to respect for private life) or under data protection law, despite the fact that HCOG involved the recording and retention of information about individuals.

On the second argument, the Judge held that the actions of Humberside Police, taken as a whole, amounted to an unlawful interference with Mr. Miller’s Article 10 rights.  The Judge did not find, however, that the recording of the incident by Humberside Police was in itself unlawful.

HCOG – the Judge’s analysis

HCOG is published by the COP.

The judgment explains that the COP is a professional body supporting those working in policing.  It has no operational role; its work is limited to policy.  It published HCOG in 2014, following some twenty to thirty years of policy development concerning police responses to hate crime and non-crime hate incidents.  HCOG relates to five protected strands:  disability; race; religion; sexual orientation; and transgender status.  (Notably, sex is not a protected strand:  transphobia falls within HCOG, but misogyny does not.)

HCOG describes a hate incident in relation to transgender people as:

Any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender.

Importantly, the definition is based on perception alone, rather than on an objective assessment as to whether there is any evidence of hostility or prejudice.

HCOG states that non-crime hate incidents should be recorded by the police, unless doing so is the responsibility of another organisation. This general duty is subject to two qualifications: (i) the police should not over-react to reports of non-crime hate incidents; and (ii) the police must take account of section 6(1) of the Human Rights Act 1998 and their responsibility not to act in a way that contravenes the ECHR.

In discussing the Claimant’s challenge to HCOG, the Judge began with the question whether HCOG violated the common law principle of legality, on the basis that there was no statutory authorisation for the interference with freedom of expression to which it gave rise.  The Judge held that there was no violation.  The police had the power at common law to record and retain a wide variety of data and information, and hence there was no need for any specific statutory authorisation for HCOG.  Further, the principle of legality was one of statutory construction, and hence it had no application to the common law powers under which HCOG was issued.

Turning next to the legality of HCOG under Article 10, the Judge analysed this under four headings: (a)  whether HCOG constituted an interference with the Article 10 right; (b) whether any  interference was “prescribed by law”; (c)  whether any interference pursued one or more of the aims set out in Article 10(2); and (d)  whether any interference was necessary, which involved an assessment of proportionality.

On the first issue, the Judge held that HCOG did not interfere with the Article 10 right.  The mere recording of an incident had no real consequences.  It was submitted for the Claimant that there was a risk that any such record might in the future be disclosed on an Enhanced Criminal Record Certificate (ECRC) issued by the Disclosure and Barring Service (DBS).  The Judge held that if this were to happen then it would be because of a decision under the Police Act 1997 to make such a disclosure; the recording under HCOG would be secondary to that decision, and hence the mere possibility of disclosure via an ECRC did not require a finding that HCOG interfered with the Article 10 right.

The Judge went on to discuss the three remaining issues, in case he was wrong in his conclusion that there was no interference.

On the second issue, the Judge held that if there was any interference then it was “prescribed by law”.  HCOG had a basis in domestic law, under common law police powers to collect, use, retain, and disclose information for the purposes of preventing and detecting crime.  The terms of HCOG were sufficiently clear to satisfy the requirement that individuals must be able to foresee, to a reasonable degree, how the policy would affect their actions. The perception-based definition of non-crime hate incidents did not contravene the foreseeability requirement; and any police discretion not to record reports of non-crime hate incidents was clear enough to be consistent with that requirement.

On the third issue, the Judge held that HCOG had two legitimate aims: preventing disorder and crime and protecting the rights and freedoms of others.  Both aims were specified in Article 10(2) as potential bases for justifying an interference with the Article 10 right to freedom of expression.

Finally, on the fourth issue the Judge held that HCOG was proportionate.  The aims of HCOG were important:  monitoring hate incidents helped the police to protect minorities and marginalised groups, and HCOG also assisted in preventing the escalation of hate-based activity from non-criminal activity to crime.  Any interference with freedom of expression by HCOG was modest.  There were safeguards in place:  retention was subject to data protection legislation (though note that the judgment refers here to the Data Protection Act 1998, rather than the GDPR and the Data Protection Act 2018); and disclosure (i.e. via an ECRC) was subject to an extensive framework of law and policy.

HCOG – comment and discussion

The Claimant’s challenge to HCOG faced a high hurdle to surmount. It was a systemic attack on the policy, and it required the Claimant to show that the policy gave rise to an unacceptable risk of illegality.  The fact that the policy was capable of leading to unlawful results was not enough for the Claimant to succeed: see R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin).

That said, I would suggest that there are at least four respects in which the analysis set out in the judgment is open to question, partly as a result of the way in which the case was put, and partly by reason of the approach taken by the Judge.

The first point is that the claim was based solely on Article 10, and did not rely on the right to respect for private life under ECHR Article 8.  There would be a powerful argument that the collection and subsequent retention under HCOG of information about individuals who are the subject of complaint amounts to an interference with their Article 8 rights:  compare e.g. R (ota Catt) v Commissioner of Police of the Metropolis [2015] UKSC 9.  It may be, of course, that an Article 8 analysis would have ultimately led to the same result; but at the very least it would have been difficult for the Judge to conclude that HCOG did not even interfere with the Article 8 right.

The second point is that the Judge’s approach to the issue of disclosure by way of an ECRC is unconvincing.  The Judge considered that if such disclosure took place then the recording of the incident under HCOG would be a secondary factor in that regard, with the primary factor being the disclosure decision made under the Police Act 1997.  But the fact remains that without the operation of HCOG there would be nothing to disclose under any ECRC.  HCOG puts individuals at risk that apparently damaging information about them could be retained and disclosed in an ECRC, in circumstances where someone else’s perception has been sufficient to lead to a non-crime incident being recorded.  Whether the case is approached under Article 8 or Article 10, this seems to be an important consideration both in determining whether there is any interference with a Convention right, and in assessing whether the interference is justified.

The third point is about the criteria in HCOG as to whether incidents should be recorded.  This point is relevant to both foreseeability and proportionality.

As indicated above, a non-crime hate incident (in the transgender context) is defined as one that is perceived by the victim or any other person to be motivated by prejudice or hostility against a person who is transgender or perceived to be transgender.  The general rule under HCOG is that such incidents should be recorded.  The Judge considered that there was a discretion for the police not to record, and that in order for an incident to be recorded there must be some rational basis for concluding that there was a hate element in the incident.  So if a person who is abused for being fat and bald makes a complaint that the abuse is based on hostility because they are transgender, then the Judge considered HCOG would not require the incident to be recorded, there being no apparent link whatsoever with transgender status.

The Judge’s analysis nevertheless leaves a considerable degree of uncertainty as to what should, or should not, be recorded.  Take the case of a person who simply tweets that they are opposed to any reform of the GRC process.  Someone else reads that tweet, considers that such a view is intrinsically transphobic, and reports it to the police.  What is the position?  Is this an incident that should be recorded under HCOG, since (unlike in the “fat and bald” case) there is a clear link with one of the protected strands?  Is this an incident that could be recorded, depending on an exercise of discretion by the police?  Or is it an incident that should not be recorded, given that this is an expression of opinion without any overt display of hostility or prejudice?  Neither HCOG itself, nor the judgment, answer these questions.  I would suggest that the judgment does not fully analyse the potential for uncertainty in the application of HCOG, and the risk that such uncertainty could have a chilling effect even on reasoned, carefully-expressed contributions to public debate.  This point gains additional force from the Judge’s later findings (discussed below) as to the nature of the current debate on transgender issues.

 My fourth and final point is about another aspect of proportionality, namely whether a less intrusive measure would have met the aims of HCOG.  There is a difference between the police recording (i) the allegation a non-crime hate incident has taken place, and (ii) the name of the individual alleged to have been responsible.  The judgment does not explore whether and to what extent the aims of HCOG could have been met by recording the former, but not the latter.

Treatment of Mr. Miller by Humberside Police – the Judge’s analysis

This part of the judgment concerns a narrower issue: whether the way in which Humberside Police treated Mr. Miller amounted to an unlawful interference with his Article 10 rights.  The Judge held that it did, not because the recording of the incident was in itself an unlawful interference, but because of Humberside Police’s overall course of dealing with Mr. Miller, including his interaction with PC Gul.

The starting-point for this part of the Judge’s analysis is the evidence for the Claimant by the philosopher Professor Kathleen Stock (whose intellectual pedigree is described by the Judge as “impeccable”), and by Jodie Ginsberg of Index on Censorship.  The Judge draws the following conclusions from this evidence:

First, there is a vigorous ongoing debate about trans rights.  Professor Stock’s evidence shows that some involved in the debate are readily willing to label those with different viewpoints as “transphobic” or as displaying “hatred” when they are not.  It is clear that there are those on one side of the debate who simply will not tolerate different views, even when they are expressed by legitimate scholars whose views are not grounded in hatred, bigotry, prejudice or hostility, but are based on legitimately different value judgments, reasoning and analysis, and form part of mainstream academic research.

Against this background, the Judge considers that the police did indeed interfere with Mr. Miller’s Article 10 rights.  Warning him that in unspecified circumstances he might find himself being prosecuted for expressing his views on Twitter had a chilling effect on his right to freedom of expression.  Further, that interference was not justified under Article 10(2).  The Claimant’s activities on Twitter did not come anywhere close to being a criminal offence, and there was no rational basis for concluding that they might do so in future.  The impact of the infringement on his Article 10 rights was disproportionate to any likely benefit that might be secured by that infringement.

The judgment concludes with a quotation from John Stuart Mill’s On Liberty, complementing the quotation from Orwell’s Animal Farm with which it began.

Treatment of Mr. Miller by Humberside Police – comment and discussion

A notable feature of this part of the judgment is that the Judge, while expressing some scepticism as to whether the Claimant’s tweets were properly recordable under HCOG, concludes that he does not need to resolve the issue.  If the case had been analysed by reference to Article 8 as well as Article 10, then it is hard to see how the Judge could have avoided determining this point:  the decision to record would surely in itself have been held to be an interference with the Article 8 right, requiring specific justification.

Another point of interest is that the Judge’s findings as to the nature of the public debate about transgender issues played no part in his analysis of whether HCOG was lawful, and were treated as being relevant only to his discussion of the narrower issue about how Mr. Miller himself was treated.  The Judge evidently considers that there is a very real risk that legitimate differences of view about transgender issues will lead to unwarranted allegations that individuals have acted from hostility or prejudice.  If this is so, then it is surprising that the Judge did not take this into account when considering Mr. Miller’s wider challenge to the HCOG itself, as well as when considering his narrower challenge based on his own treatment.

Conclusion

Put shortly, the Judge’s conclusion was that a lawful policy (HCOG) had been unlawfully applied in Mr. Miller’s particular case.  The fact that the allegation against Mr. Miller was recorded was not in itself unlawful:  rather, the illegality stemmed from the actions of Humberside Police after the allegation was recorded.

Mr. Miller asked for permission to appeal on the HCOG issue.  He was given a “leapfrog” certificate to appeal to the Supreme Court (together with permission to go to the Court of Appeal, if the Supreme Court does not wish to hear the case yet), on the following issue:

whether the recording of non-crime hate incidents pursuant to HCOG is unlawful at common law and/or as being contrary to Article 10(1) of the Convention.

 The Supreme Court will need to decide whether to hear the case straight away, or to require it to be heard first by the Court of Appeal.

It remains to be seen whether any of the Article 8 issues referred to above play any part in the future course of this litigation.  It will also be of great interest to see how the appellate Courts approach the Judge’s findings about the nature of the current public debate on transgender issues, and what role (if any) they consider that those findings should play in the ultimate disposal of the case.

Timothy Pitt-Payne

 

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