Other than perhaps barristers, judges and solicitors, the police above all people should be expected to have a vague grasp of the basics of criminal law and an ability to give reasonably accurate summaries of it to the public. Over the last few months, however, official police accounts on social media have been posting wildly incorrect legal explainers, implicitly (and sometimes explicitly) threatening criminal investigation against those who decline to follow the police’s view of the law. 

The police tweet was deleted following a backlash from lawyers, including Lord Wolfson

On 27 September, Sussex Police referred to a convicted trans sex offender Sally Anne Dixon (who was responsible for several historical indecent assaults on children) as a woman. A number of gender critical accounts (accounts sceptical of trans activism) asserted on Twitter that Sally Anne Dixon was, in fact, a man, and that Dixon was known as John Stephen Dixon when committing the offences. Sussex Police then admonished the accounts, pointing to hate crime guidance and saying that hateful comments would not be “tolerated”. They later deleted these tweets after the Home Secretary, Suella Braverman, objected. Not long after that incident, on 8 October, Devon and Cornwall Police tweeted, “Hate crime can be any criminal or non-criminal act such as graffiti, vandalism to a property, name calling, assault or online abuse on social media”. The tweet was similarly deleted following a backlash from numerous lawyers, including Lord Wolfson. 

On 10 October, Leicestershire Police tweeted a link where members of the public could report hate crimes. Below that link was a photograph of a 57-year-old trans woman named “Jane” with the following quote appended: “I get called by my previous male name on purpose, but that’s not who I am. It can be really hurtful, especially when it’s just seen as a joke”. This also generated a negative response, including another intervention a few days later from the Home Secretary, who said that this sort of output “undermines” public confidence in the police. This account also deleted its tweet. Curiously enough, on the same day that Leicestershire Police had tweeted, Devon and Cornwall Police issued an apology for its previous post. It said that the team “took the definition of a hate crime from a third-party website in good faith” and that the content on that website was “sadly incorrect”. (Incidentally, His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services later announced that Devon and Cornwall Police would be under special measures, with an enhanced level of monitoring.) 

The major flaw in all of these instances was that the police had not considered the definition of a hate crime. The common suggestion from the police is that referring to a transgender woman as a male (otherwise known as “misgendering”) or “deadnaming” (referring to a trans person by their previous name) is not only hateful but also an offence. In such cases, the purported crime is deemed serious enough to warrant increased sentencing powers under section 66 of the Sentencing Act 2020 because it targeted the protected characteristic of transgender identity. Yet, crucially, there must first be an identifiable crime before the aggravating factor of hate can apply. This fact might seem to be blindingly obvious, but it has appeared to escape the attention of the police. It is oxymoronic to say, as Devon and Cornwall Police did, that a hate crime can be a “non-criminal act”. It is difficult to see how tweeting about Sally Anne Dixon’s identity after Dixon had been convicted would be criminal. Likewise, whilst “Jane” had found it hurtful to be referred to by her previous male name, it is not entirely clear from the information given that it would constitute the offence necessary for it to be then categorised as a hate crime. 

Threatening criminal investigation undoubtedly chills free expression

In recent case law, non-persistent rude comments expressed online were not found to have been criminal. In Scottow v CPS, the High Court restricted the application of the Communications Act. Scottow had been convicted in the Magistrates’ Court of sending messages with the purpose of “causing annoyance, inconvenience or needless anxiety to another” by persistently using a public electronic network contrary to section 127(2)(c) of the Communications Act 2003. The District Judge found that Scottow committed the offence having, amongst other matters, “misgendered” the (very litigious) trans complainant Stephanie Hayden on Twitter and referred to Hayden as a “pig in a wig”. On appeal to the High Court, the then Mr Justice Warby found that the mischief which Parliament had intended to tackle was not “as broad as causing offence online” and that a criminal “purpose” and “persistent” course of conduct from the defendant needed to be properly demonstrated by the prosecution. Warby also found that article 10 of the European Convention on Human Rights, protecting freedom of expression, had not properly been taken into account. Consequently, Scottow’s conviction was quashed. 

The police were therefore mistaken when posting the statement by “Jane” without explaining which offence had supposedly been committed. Section 127(2)(c) of the Communications Act has a specific definition, and “misgendering” is not clearly an offence contrary to it. The same goes for other potential offences the police could attempt to cite, including harassment, which also requires a course of conduct. Where harassment by publication is alleged, it should include conduct which is oppressive and not merely hurtful or annoying. Leicestershire Police gave the impression that the definition of hate crime was wider than it really was, then. 

These misleading statements of the law are redolent of similar misapprehensions about the Equality Act. Stonewall, the “LGBTQ+” charity, has played the role of “diversity champions” for various bodies. Pursuant to that role, it has given advice relating to equality requirements under the law. Lately, Stonewall has been accused of causing Essex University to drop speakers for apparently expressing “transphobic views” in a newspaper. According to the barrister Akua Reindorf, Stonewall erroneously stated that the speakers would cause unlawful harassment. The readiness to listen to an activist group explaining a partial view of the law led the university to institute a policy negatively impacting free speech. In an effort to uphold the rights of minority groups, the university had instead adversely affected the rights of others. 

The police may well believe that they are protecting minorities too, but they have taken a wrong approach based on current political fashion, raising questions as to their partisanship. Statements made online which threaten members of the public with criminal investigation, predicated on a false view of law, undoubtedly have a chilling effect on free expression. It is unacceptable that the police, when referring to hate crimes, do not consult expert materials in considering whether an offence has potentially been committed. Devon and Cornwall Police, instead of drawing an understanding of the law from legal materials such as case law, statutes, practitioners’ textbooks and CPS Guidance, decided to uncritically rely on a non-expert third party website. The team which made the post showed a remarkable degree of ignorance of the law it was supposed to enforce. Leicestershire Police and Sussex Police followed a similar pattern. In the future, the police should take more care when making public statements, and refrain from threatening members of the public with investigation on flimsy legal grounds.