Andrew Tettenborn

Harry Miller’s ‘transphobic tweets’ victory is a win for free speech

Harry Miller's 'transphobic tweets' victory is a win for free speech
Harry Miller outside the Court of Appeal (Getty images)
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Court decisions don’t often call for three cheers, but today’s Court of Appeal determination in the Harry Miller case is an exception. Essentially the judges have told the police to rewrite the rules on recording what they see as hate incidents. 

However technical this looks, this is actually an enormous blow in favour of the freedom of ordinary people to say what they want. It is also an admirable Christmas present for anyone seriously concerned with protecting free speech, not to mention a high-profile triumph for the Free Speech Union, who stood squarely behind the appeal. Fighting cases like this needs moral and financial support: and in tandem with Fair Cop, the FSU has very commendably provided both.

In case you’ve forgotten the background, a guidance document issued to all police forces says the following: if someone says something which anyone else sees as embodying hostility based on race, religion, transgenderism or a number of other characteristics, then even if no crime whatever is indicated, police must record it as a so-called 'non-crime hate incident' (or NCHI). It matters little if the incident is trivial or its classification fairly obviously misguided, or if the complainant is a victim: it must still go down. There is little discretion, nor is it necessarily just a matter between the speaker and the police: NCHIs can feature in the enhanced criminal records certificate that anyone must produce to work with children or the vulnerable.

Harry Miller, a retired policeman with a habit of posting gender-critical (but entirely lawful) views online, fell foul of this system in 2019. One tweet he posted questioned whether transgender women were real women. Police subsequently turned up at Miller's workplace after receiving a complaint and a NCHI was recorded against his name, seemingly on the basis that the guidance required it.

Armed with a healthy dose of bloody-mindedness, Miller objected to being labelled as a suspected hate-monger on evidence at best slender and at worst non-existent: and it was at his insistence that the Court of Appeal this morning said this was indeed unacceptable in law. Even if a person was not prosecuted for what they said, the prospect of having even lawful speech recorded as a matter of course merely because someone somewhere saw it as hateful had a gravely chilling effect on their exercise of robust free speech. It followed that it was contrary to the protection of free speech in Article 10 of the European Convention on Human Rights and unlawful.

This is pretty unalloyed good news. The protection of free speech under the Strasbourg convention is normally pretty patchy, because of the qualifications hedging it round: but here it has unusually come up trumps. Automatic recording of NCHIs, first introduced in an excess of zeal following some incautious recommendations emanating from the Stephen Lawrence inquiry, is a dead duck. To record what someone has said, the police will now need at least some rational connection with crime-fighting or keeping order rather than the mere say-so of a possibly misguided complainant. 

As a by-product, pressure groups and the easily-offended will find it more difficult to silence those they do not like by reporting them to the police. Instead of having to show excessive respect to a complainant just because they are a complainant (or in police-speak a 'victim'), the latter will now have a great deal more reason to do what they should have done all along and tell complainants, tactfully but firmly, that they cannot become embroiled in the policing of political or social argument.

An attraction of the Court of Appeal’s decision today is that it protects the free speech of the ordinary tweeter or social media user, rather than only that of high-profile campaigners or journalists. But it may also go further. The idea rejected by the Court of Appeal as contrary to free speech, that hate speech is fundamentally a matter of victimhood, and hence that all that matters is how it is perceived by those affected, was not limited to the College of Policing. Many public authorities, not wishing to be left out, have embraced the idea wholeheartedly in their own codes of conduct and equality and diversity policies. They may now have to show some care in how they seek to moderate the speech of those who work for them if they are not to fall foul of the courts.

There is one other person who as a result of all this will, one suspects, be quietly happy: Priti Patel. The judges have incidentally got her out of an awkward bind. Instinctively pro-free speech, aware of the problems of NHCIs and heavily pressured by free speech advocates to do something about them, she has nevertheless had to do a careful balancing act. 

The police establishment, rightly or wrongly, support NCHIs, and wise Home Secretaries do not want to alienate the police or to take steps which could be seen as cramping their style in suppressing crime. But now that the difficult (and correct) decision has been taken for her, she could even be forgiven for discreetly cracking open a socially-distanced Christmas bottle with her officials somewhere in the Home Office out of the sight of malicious journalists.