R (Miller) v College of Policing

Key legal principles: The College of Policing's Hate Crime Operational Guidance (HCOG) is within the police's common law power to collect and retain non-intrusive information for preventing and detecting crime. The principle of legality (as a rule of statutory interpretation) does not extend to non-statutory guidance; challenges based on that principle are therefore inapposite. Recording a non-crime hate incident under HCOG, of itself, will not ordinarily amount to an interference with Article 10 ECHR, because the recording is primarily an administrative intelligence function and carries no immediate sanction; but operational police steps taken in consequence of a recording can interfere with Article 10 and must be justified as "prescribed by law", pursuing a legitimate aim and being necessary and proportionate.

Material grounds for decision: (1) HCOG is lawful under domestic law because the police have common law powers to gather and retain public information; (2) HCOG meets the Convention requirement of being "prescribed by law" (accessible and sufficiently foreseeable) and pursues legitimate aims (prevention of disorder/crime and protection of others); (3) on proportionality HCOG does not give rise to an unacceptable risk of systemic breaches of Article 10; (4) on the facts, however, Humberside Police's conduct in visiting the claimant's workplace, misrepresenting the extent of complaints, warning of undefined "escalation" to criminality and otherwise discouraging the claimant from lawful political expression amounted to an unjustified and disproportionate interference with his Article 10 rights.

This is a first instance judicial review in which the claimant challenged (a) the lawfulness of the College of Policing's Hate Crime Operational Guidance 2014 (HCOG) and (b) the lawfulness of how Humberside Police applied that guidance when dealing with a single third-party complaint about the claimant's tweets on transgender issues.

Background and parties: The claimant (a private individual active on Twitter in the public debate about reform of the Gender Recognition Act 2004) posted tweets between November 2018 and January 2019 about transgender issues. A single complainant ("Mrs B") read some tweets and reported them to Humberside Police via True Vision; the force recorded the matter as a non-crime "hate incident" under the HCOG. A community cohesion officer visited the claimant's workplace card and later spoke to him by telephone; there is a dispute about aspects of that telephone call but undisputedly the officer left the claimant with the impression that further tweets might lead to criminal prosecution and recorded a "Crime Report" describing the claimant as a "suspect". The claimant complained and pursued judicial review.

Nature of the claim and remedies sought: The claimant sought judicial review of HCOG as unlawful under the common law and/or Article 10 ECHR, and alternatively sought relief for unlawful interference with his Article 10 rights arising from the police's handling of the complaint.

Issues framed:

• Whether HCOG was unlawful at common law by contrary application of the principle of legality;
• Whether HCOG and the recording of non-crime hate incidents amount to an interference with Article 10 that is not "prescribed by law", pursues no legitimate aim, or is not "necessary in a democratic society" (proportionality);
• Whether Humberside Police's specific actions in this case unlawfully interfered with the claimant's Article 10 rights.

Court's reasoning and conclusions: The court concluded that HCOG is lawful under domestic law. The police have a common law duty and corresponding power to record and retain public information for preventing and detecting crime; authorities such as Catt, Wood and Bridges support that proposition. The principle of legality is a rule of statutory interpretation and does not invalidate non-statutory guidance such as HCOG. On Article 10 analysis the court accepted that HCOG is accessible and sufficiently foreseeable, pursues legitimate aims (prevention of crime/ disorder and protection of the rights of others) and contains safeguards and scope for discretion (including paragraph 1.2.4 and paragraph 6.4) so that it does not create an unacceptable systemic risk of disproportionate interference with free expression. The court emphasised the special protection afforded to political speech and debate on matters of public interest (Article 10 jurisprudence: Handyside, Shayler, Redmond-Bate).

However, the court found that on the facts of this case Humberside Police's conduct (attendance at the claimant's workplace, misleading characterisation of the scale of complaints, warnings about undefined "escalation" to criminality, and the Crime Report referring to the claimant as a "suspect") produced a chilling effect and unlawfully interfered with the claimant's Article 10 rights. The police had no rational basis to think the claimant's tweets risked escalation to criminal offences and the steps taken were disproportionate to the objective of protecting others or preventing crime.

Wider context noted: the court observed the importance and sensitivity of debate about transgender issues, the risk of overreaction by police, and the need to balance protection of vulnerable groups with robust safeguard for freedom of speech in democratic society.

Application allowed in part. The court rejected the claimant's systemic challenge to the legality of the Hate Crime Operational Guidance: HCOG is lawful under domestic common law and compatible with Article 10 taken as a policy framework. However, on the facts the court held that Humberside Police's operational treatment of the claimant (visit to workplace, misstatements about the number of complaints, warnings of undefined "escalation" and the creation of a Crime Report) amounted to an unjustified and disproportionate interference with his Article 10 right to freedom of expression, for which relief was granted in part.