What a difference a year makes. In February 2020 the courtroom was packed at the RCJ to hear Knowles J hand down his judgment in Miller v College of Policing.

Miller had been reported and recorded under the College of Policing’s Hate Crimes Operational Guidance (HCOG) in 2019 as a “hate incident” for some anodyne tweeting about issues of sex and gender. These tweets had been brought to the attention of “Mrs B” some hundreds of miles away, allegedly provoking great upset and offence. She complained and, following the guidance, Humberside felt compelled to visit Miller at his place of work to “check his thinking”. It was suggested that if he didn’t mend his tweeting ways, he might be arrested.

Miller took court action against both Humberside and the College of Policing who wrote the hate crimes guidance. While he won against Humberside, he lost his challenge to the lawfulness of the guidance itself. The judge was sufficiently trenchant in his criticism of the force – characterising them as the Stasi, Cheka and Gestapo – which provoked gasps of delight in court.

Miller appealed against the refusal to declare the guidance unlawful. That hearing took place in the Court of Appeal on 9 and 10 March. Instead of the usual courtroom buzz, we had to settle for a live stream on our laptops. Although we were deprived of the atmosphere and theatre of an actual court hearing, the issues at stake could not have been more momentous and compelling.

We started fairly dryly, with a deep dive into the common law principle of legality. Things got more interesting when the time came for the College of Police to make their submissions. Miller’s QC attacked the guidance on various fronts: it was irrational as recordings were made with no evidence of hate; it had a “chilling effect” in terms of interference with freedom of speech; it could not be foreseeable that “Mrs B” (memorably described by Knowles J as “on the outer edges of rationality”) would complain about Miller’s tweeting.

Fair Cop does not dispute the need for the police to tackle hate speech

The College of Policing were keen to recast the recording of a non-crime hate incident (NCHI) against Miller as a mere administrative exercise – a “categorisation” – which had zero consequences for the person recorded and therefore could not create any kind of interference with the right of freedom of expression. The Court of Appeal kept probing – how could it be said that there was no wider “chilling effect” in the perception that you risked being recorded by the police, followed by onward disclosure to potential employers or potential police investigation? What of the female academic who wished to discuss issues of sex and gender and found her work reported?

It was frustratingly unclear who could see these records and how long they would be retained. The College of Police kept repeating that police actions after recording were “operational decisions” for the particular force and nothing to do with the guidance about “categorisation” which was a wholly neutral act, implying no judgment by the police.

The Court of Appeal commented that this was a “cake and eat it” moment – the College of Police wanted to claim a neutral “categorisation” of the perception of “hate”, but that the guidance contained implicit safeguards that the police must consider the proportionality of so doing – i.e., make a value judgment.

The Court of Appeal reminded the College of Policing of its own skeleton argument where it asserted that the sheer volume of recorded hate incidents was so large that it was not practical for the police to investigate. What then, asked the court, was the point of all this?

There is a world of difference between racist abuse and protected political speech

The College of Policing said it was “vital intelligence” so that the police could “monitor tensions” in the community. However, as the Court of Appeal commented, there was a real distinction between someone expressing hostility to a person in their immediate physical environment and someone who has chosen to be offended by a statement they read online. Again, the Macpherson Report was wheeled out in aid of the current guidance. But as Miller’s counsel noted, Macpherson had never suggested there should be perception-based recording of incidents with no investigation. On the contrary, both incidents and crimes ought to be taken seriously and investigated. The Court of Appeal were reminded again of the lessons from the Henriques Report into the serious failings of Operation Midland which took the narratives of self-declared victims at face value, with little challenge or sceptical curiosity.

For me, the stand-out moment was towards the end. There were discussions about whether the new version of the guidance had mitigated any of the concerns. The College of Police praised the new guidance for including a link to the Miller judgment and a reminder of the importance of Article 10. But Miller’s counsel responded to say that, far from mitigating the harm of the first guidance, the College of Police had become emboldened and now sought to bring their guidance into schools. A teenage girl, Miss B, has applied for judicial review of this policy that would see her conversations at school risk earning her a recording as a hatemonger. The three Judges appeared visibly shocked by this.

I have a very personal interest in this as I have my own application for judicial review against the same guidance, as I am recorded as “a barrister posting hate” by Wiltshire Police – which doesn’t strike me as very “neutral”. My case will be based primarily on breach of Article 8 and data protection laws, issues which were frustratingly touched upon before the Court of Appeal but not canvassed in any depth.

Bad guidance, like bad laws, is worse than no guidance at all

But I really hope I won’t need to proceed. I hope that Harry Miller wins and this guidance is declared unlawful and subject to substantive revision. “Hate” remains very broadly defined to include “dislike” and “unfriendliness” and the recording of 120,000 hate incidents over six years doesn’t appear to have made a dent in the alleged rising numbers of hate crimes. It is simply crazy to allow the claimed perception of the malicious or the irrational to find itself recorded on police databases as “valuable intelligence”. It is nothing of the kind. When asked in FOI requests, not a single force could tell Fair Cop what analysis they made of the hate incident data or what crimes they had stopped because of it.

Fair Cop does not dispute the need for the police to tackle hate speech, whether it happens online or in the real world. But bad guidance, like bad laws, is worse than no guidance at all.

And in this case, the guidance is extremely bad, not least because it helps to prop up the growing trend that instead of adult discussion and debate we must have fear and intimidation to suppress “wrongthink”. There is a world of difference between racist abuse and protected political speech; the police must be equipped and empowered to recognise that. The consequences if they are not, do not require spelling out for any student of fairly recent history.

It is sadly ironic that the chief executive of the College commented in 2018 that: “A fundamental development within the College is the use of knowledge and research to develop an evidence-based approach to policing… The British model of policing by consent is admired right across the world. We will help to create the best conditions to sustain and enhance that model.”

It looks like the College of Policing has strayed far from its path. Let’s hope the Court of Appeal can set it back in the right direction.