Infringement of Article 10 Rights: Police Recording of Non-Crime Hate Incidents
A policy that non-crime hate incidents must be recorded by the police as such (against the named person allegedly responsible) if the incident was subjectively 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” and irrespective of any evidence of the “hate” element, was challenged in the Court of Appeal: The Queen on the application of Harry Miller v The College of Policing [2021] EWCA Civ 1926: Dame Victoria Sharp PQBD, Simler, Haddon-Cave LJJ
The issue concerned guidance issued in 2014 by the College of Policing about what was called perception-based recording and was challenged as contrary to the appellant’s right to freedom of expression both at common law and as protected by Article 10[1] of the European Convention of Human Rights (the Convention).
Giving the unanimous judgment of the Court allowing the appeal, Dame Victoria Sharp P said that knowledge that the police were categorising and recording as non-crime hate speech, speech of a kind with which we were concerned, had the potential to create a chilling effect on public debate on issues of controversy and public importance in an area of expression where the scope for lawfully restricting such debate was very limited.
Whilst not at the highest end of the spectrum, the interference was nonetheless real and significant.
The judge’s view that the impugned parts of the guidance did not encroach on freedom of expression, or if he was wrong about that, they did so barely at all, was an error of law that skewed his approach at each stage of the analysis.
Mr Miller posted 31 tweets between November 2018 and January 2019 which gave rise to the proceedings. The judge was quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition.
Unsubtle though they were, the judge said Mr Miller “expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons.”
The risk Mr Miller ran was not one of prosecution but the parallels between this case and that of Altug Tane Akcam[2] were significant.
Mr Miller belonged to a group of people who could easily be stigmatised for their opinions and be subject to complaints by those offended by his views.
He was able to contend that the impugned provisions had violated his rights as he was a member of a class of people who risked being directed affected by the measure.
There was at the very least a non-trivial risk that in future such a record might be disclosed on an enhanced ECRC.
The safeguards in relation to disclosure may mean that the interference was proportionate but did not avoid the conclusion that there was an interference.
The question in this case was: did the guidance sanction or positively approve or encourage unlawful conduct viz, conduct which violated Article 10? In the Court’s judgment it did.
If an interference with Article 10(1) rights was to be justified, it must meet the well-known four-part test identified in Bank Mellat v Her Majesty’s Treasury[3].
Perception-based recording had a legitimate aim (or series of aims) linked to the prevention of disorder or crime. It was not difficult to see that there was a rational connection between the measure in question and the aims it sought to achieve.
The difficulty arose when considering whether less intrusive means could have been used to achieve those legitimate aims without unacceptably compromising the achievement of them.
The guidance appeared not merely to contemplate but to require that an incident must be recorded as a non-crime hate incident if the perception of the victim or any other person was that it was motivated for example by spite or ill-will against a protected strand, irrespective of whether there was evidence to support that perception.
Thus, the guidance contemplated on its face, the recording by the police of incidents as non-crime hate incidents which were, to put it shortly, non-crime non-hate incident.
The guidance applied without distinction to the protected strands identified within it (disability, race, religion, sexual orientation and transgender).
But the prism provided by the case had been the public debate concerning transgender issues and the adverse impact that the guidance had on freedom of expression in that context especially the chilling effect that it had on an important issue of legitimate public interest.
Less intrusive measures could be used to achieve the legitimate aims of such recording without unacceptably compromising the achievement of those aims.
It was not to say that perception-based recording of non-crime incidents was per se unlawful, but that some additional safeguards should be put in place so that the incursion into freedom of expression was no more than was strictly necessary.
[1] Article 10 HCRA: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
[2] (2016) 62 EHRR 12
[3] [2014] ACT 700