Miller, R (On the Application Of) v The College of Policing & Anor

A policy for recording non-crime hate incidents was lawful. Mere recording, without more, was too remote from consequences to interfere with freedom of expression under Article 10. Even if it did interfere, the policy was prescribed by law, pursued legitimate aims and did not create an unacceptable risk of disproportionate decisions.

Police conduct implementing the policy may nevertheless unlawfully interfere with Article 10. Contacting a speaker at his workplace, exaggerating the effect of lawful political speech and warning of unspecified criminal consequences created a chilling effect. The response was not rationally necessary or proportionate. A complainant’s subjective offence cannot give rise to a heckler’s veto over lawful political debate.

The claimant challenged the College of Policing’s Hate Crime Operational Guidance and Humberside Police’s treatment of him after a woman complained about tweets concerning transgender issues. The tweets were recorded as a non-crime hate incident. A police officer visited the claimant’s workplace and later warned him that further escalation might result in criminal action.

The claimant alleged that the guidance and the police response unlawfully interfered with freedom of expression under the common law and Article 10 of the Convention. The central issues were whether the policy was lawful, whether recording itself constituted an interference, and whether the subsequent police conduct was a proportionate restriction on political speech.

1. The policy. The challenge to the Hate Crime Operational Guidance failed. The police had common-law powers to collect, use and retain information for preventing and detecting crime. The principle of legality was a principle of statutory construction and did not apply to the non-statutory guidance or common-law powers used here.
2. Article 10 analysis. The four-stage Article 10 inquiry required consideration of interference, prescription by law, legitimate aim and necessity in a democratic society. Mere recording of a non-crime hate incident was not a formality, condition, restriction or penalty. It was principally administrative and intelligence-gathering, and was too remote from consequences to constitute an interference. Alternatively, the policy was accessible and foreseeable, pursued prevention of disorder or crime and protection of the rights of others, and was proportionate.
3. Meaning of the guidance. Perception-based recording did not remove all limits. The guidance had to be read compatibly with Convention rights. It allowed common-sense and proportionate judgment, including where a complaint lacked a rational connection with the protected characteristic or arose from an internet or politically motivated complaint.
4. Systemic challenge. A policy challenge required a real risk of more than a minimal number of unlawful outcomes. Individual mistakes or aberrant decisions were insufficient unless the terms of the policy themselves created that risk.
5. The police response. The subsequent conduct did interfere with Article 10. The workplace visit, inaccurate suggestion that many members of the transgender community had complained, references to the claimant as a suspect, and warnings of unspecified criminal prosecution had the capacity to deter further expression. The tweets were lawful political expression within an important public debate. There was no rational evidence of an imminent criminal offence or escalation.
6. Proportionality and result. Recording alone, followed by no further action, would have served the legitimate aims. The additional police intervention was unnecessary and disproportionate. It effectively granted a heckler’s veto. The claim therefore succeeded to that limited extent, while the challenge to the policy failed.

This was a first-instance judicial review in the High Court (Administrative Court). No prior decision is stated in the judgment.