‘Gender critical’ ex-cop wins free speech judgment

A former police officer has scored a legal victory over a UK police policy that records “gender critical” views as “non-crime hate incidents,” after a court ruled it unlawfully interferes with the right to freedom of expression.

In January 2020, Harry Miller was visited by former colleagues at Humberside Police after a member of the public complained about his allegedly “transphobic” tweets. The complaint was designated as a non-crime hate incident and recorded on a national database.

On Monday, however, the Court of Appeal in London ruled that the guidance – issued by the College of Policing – had been unlawfully used, and noted it’d had a “chilling effect” on Miller’s freedom of speech. The presiding judges also found that, while the guidance had legitimate crime prevention purposes, those aims could be met through less intrusive means.

Following the verdict, Miller said that being offensive was one of the “cornerstones of freedom” and that it “is not, and cannot, and should not be an offence” unless “speech turns to malicious communication or targeted harassment against an individual.”

According to the guidance on hate crimes, a ‘non-crime hate incident’ can be “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice.”

The complaint against Miller was in relation to a number of his tweets about transgender issues as part of the debate about reforming the Gender Recognition Act 2004. In one tweet, he reportedly wrote, “I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me.”

Last year, the High Court had upheld Miller’s challenge against Humberside Police’s actions, ruling that they were a “disproportionate interference” with his right to free expression. However, it dismissed his case against the guidance on the grounds that it “serves legitimate purposes and is not disproportionate.”

However, Justice Victoria Sharp said on Monday that the “recording of non-crime hate incidents is plainly an interference with freedom of expression” and that the “knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate.”

"Mr Miller belongs to a group of people who could easily be stigmatized for their opinions and be subject to complaints by those offended by his views."

After the ruling, Assistant Chief Constable Iain Raphael of the College of Policing said it had tried to strike a balance “between the need to protect vulnerable people and communities from harm with the need to facilitate and protect freedom of speech.”