It started in 2018 with a tweet, and ended yesterday in a Court of Appeal ruling that struck a blow for freedom that will ring down the ages. 

Everyone knows Harry Miller by now: the self-described hairy-arsed docker who was visited by one of Humberside Police’s finest to “check his thinking” after an anonymous complainant reported him for retweeting a bit of feminist doggerel.

Unwittingly, this PC — ploddingly obedient to the College of Policing’s hate crimes guidance — set in motion a series of legal challenges that ended up with a landmark judgement on freedom of expression in the internet era. 

Barrister and co-founder of campaign group Fair Cop, Sarah Phillimore, has analysed the judgement and sets out its implications for the future policing of citizens’ speech.

The judgement 

The root of Harry’s challenge was to provisions in Chapter 6 of the 2014 Hate Crimes Operational Guidance (HCOG) and in particular part 6.3 which sets out the requirement for “perception based” recording of “hate”, regardless of any supporting evidence. The rationale is that victims — who are automatically and immediately accorded this status the moment their complaint is registered — should not be challenged or have to justify their belief to the police as this could lead to “secondary victimisation”.

Crying “hate” was, for many years, an irresistible force for trans activists, a magic word

The Judge in Fair Cop’s first High Court challenge agreed that the “chilling effect” of being visited by the police for expressing political views, and their recording as a “non-crime hate incident” (NCHI), was sufficiently serious to be a disproportionate interference with Harry’s Article 10 rights, and hence unlawful. However, he ruled that perception-based recording under Chapter 6 of the Guidance was permitted by law and for a legitimate aim; namely, the prevention of crime. 

The Court of Appeal disagreed. Harry succeeded in two of the five grounds of his appeal: Chapter 6 of the Guidance did involve interference with Article 10 ECHR and was not “necessary in a democratic society”. The Judge’s error of law in deciding that the recording was not an “interference” then “skewed his approach at each stage of the analysis”. The Court of Appeal posed a simple question — does the Guidance sanction or positively approve unlawful conduct that violates Article 10? The Court agreed that it did.

The origin of the error

The birth of HCOG can be traced back to the 1999 Macpherson report, which followed the public inquiry into the racially motivated murder of Stephen Lawrence. Of course there is a need for the police to respond to racist incidents as well as crimes — incidents can and do escalate, and police need to be aware of what is happening in their area. Perception-based recording therefore has a legitimate aim. 

What the College of Policing failed to do, however, was consider if less intrusive means could have met those legitimate aims. The Guidance was noted to be “extraordinarily broad”, the threshold for “hostility” is low, and nothing is grounded in “an objective assessment of the evidence”. In fact, as the Court of Appeal set out in para 112, what the Guidance actually sanctions is the recording of “non-crime, non-hate incidents”.

Further, the Macpherson Report was clear that crimes and incidents should both be taken seriously and investigated; however, the sheer volume of abusive messages on social media means it is impossible to investigate and make decisions about people’s motivations. There is nothing in the Guidance about excluding irrational complaints, including those with no evidence of hostility and “little, if anything” to address the chilling impact on freedom of speech. 

In 2021 we tore away the curtain of gender ideology to reveal nothing but intellectual pygmies

Following Harry’s partial victory against Humberside Police, in the summer of 2020 the College conducted a short public consultation and subsequently amended the Guidance. The Court of Appeal considered these 2020 revisions and noted a greater emphasis on proportionality, though this did not go nearly far enough to address the chilling effect of perception-based recording. These perception-based recordings are not per se unlawful, but additional safeguards are required to limit incursion into freedom of expression. 

It is not, as the Court of Appeal noted, for the Judges to redraft the guidance. It will be a matter for the College of Policing — a private limited company without government oversight and accountable to no one — to take on board the criticisms that have been loudly voiced since 2019. We hope that this very necessary exercise will be the first step on the road to the police reclaiming their position as politically impartial and no longer used as the private militia of one particular group, who have elevated their “offense” against our fundamental freedoms already for far too long. 

The future of debate

There is no word in online discourse more abused than “hatred”. It has become a weapon, wielded at the first encounter with a dissenting opinion. This is especially true of the transgender debate. Any opposition to gender ideology’s outrageous and bizarre demands is met with a slew of hyperbolic and utterly invented counter-claims — for example, that opponents want to “erase” trans people, or to threaten their “existence”. As the Court of Appeal noted, “Professor Stock’s evidence demonstrates how quickly some involved in the transgender debate are prepared to accuse others with whom they disagree of showing hatred, or as being transphobic when they are not but simply hold a different view.”

The College’s guidance was by no means the cause of this childish unreason, but it gave activists access to an entire army of police officers to pursue vendettas on their behalf. By enshrining the principle that hatred is determined by the observer alone — in complete inversion of the principle of innocence until proven guilty — activists could harass their opponents by proxy and with the full weight of the law. Aside from the injustice of having a NCHI recorded against you, trans (or any other) activists can subject anyone to the huge expense and distress of clearing their names. The punishment is the process itself, and Harry has spoken openly and bravely about the sometimes suicidal stress he has suffered as a result of taking on this case.

Crying “hate” was, for many years, an irresistible force for trans activists, a magic word that garnered thousands of sympathetic column inches while simultaneously condemning their critics as bigots. This tactic was destined eventually to run into an immovable object. Harry is one, but there are other principled and resolute souls such as Marion Millar and Ceri Black who have taken a stand against trans activist bullies.

We have no doubt that 2021 will be remembered as the turning of the tide. There is much more work to be done, but it was this year that we tore away the curtain of gender ideology to reveal nothing but intellectual pygmies, moral cowardice and lies. Harry’s victory — our victory — will send shockwaves through policing and politics, forcing the establishment to confront a deeply uncomfortable truth: that we cannot have a free society without free speech. 

And it all started with a typical Harry tweet: crude and crass but — we can finally say — not criminal.