R (Miller) appeal (Court of Appeal)

This appeal concerned the lawfulness of parts of the College of Policing's 2014 Hate Crime Operational Guidance (in particular section 6.3) which requires perception-based recording of "non-crime hate incidents". The court accepted that the police have common-law powers to collect and retain information for policing purposes and that the Guidance sits within a wider statutory and regulatory framework (including the Data Protection Act 2018, the National Standard for Incident Recording and the Police Act 1997 disclosure regime).

The Court of Appeal held that mandatory perception-based categorisation and recording of speech as a non-crime hate incident can interfere with Article 10 rights (freedom of expression) because knowledge that lawful speech may be recorded as a "hate incident" has a real chilling effect. Although the Guidance is foreseeable in the sense required by Article 10, the court found the Guidance in its 2014 form insufficiently tailored: the recording requirement is very broad, applies irrespective of objective evidence of hostility, and lacks adequate safeguards and proportionality guarantees. The court allowed the appeal on grounds concerning interference and proportionality and concluded that additional safeguards are required to prevent unjustified interference with free expression.

Background and parties:

• The appellant, Harry Miller, a private citizen with gender-critical views, challenged the College of Policing's Hate Crime Operational Guidance (2014) after Humberside Police recorded a complaint about his tweets as a non-crime hate incident under section 6.3 of the Guidance. The College issues non-statutory operational guidance; it has no operational policing role.
• The claim below led to a declaration and mandatory order against the Chief Constable of Humberside (that particular police action had disproportionately interfered with Mr Miller's Article 10 rights) but the High Court dismissed Mr Miller's claim against the College itself. The judge gave a leapfrog certificate; the Supreme Court declined to hear the matter first and it came to the Court of Appeal.

Nature of the application / relief sought: Judicial review of the College's Guidance (seeking a declaration that section 6.3 was unlawful for breaching common-law and Article 10 rights) and a mandatory order requiring expungement or correction of the Humberside record.

Issues for determination:

1. whether the principle of legality required express statutory authorisation for the Guidance's interference with freedom of expression;
2. whether the Guidance was lawful at common law;
3. whether the Guidance's mandatory perception-based recording interfered with Article 10;
4. whether any interference was "prescribed by law" (foreseeability/accessibility); and
5. whether any interference was justified as necessary in a democratic society (proportionality).

Court's reasoning:

• The court rejected the submission that the principle of legality operates as a free-standing bar to non‑statutory interference with expression: the police have established common-law powers to collect and retain data and those powers operate subject to statutory safeguards and the Human Rights Act.
• The court concluded that categorising and recording lawful speech as a non-crime hate incident can be an interference with Article 10 because of its chilling effect on debate, especially on matters of public interest.
• On "prescribed by law", the court held the Guidance is sufficiently accessible and foreseeable when read in context of the wider law and operational policing arrangements, although the mandatory recording requirement is wide in scope.
• On proportionality the court held the Guidance (in its 2014 form) posed a real risk of unjustified interference because the recording obligation is very broad, does not require objective evidence of hostility, and lacks clear, internal safeguards applying at the recording stage to prevent overbroad and arbitrary interference with freedom of expression. The court observed that additional safeguards and clearer drafting (as to when recording should not follow) are necessary.

Disposition: The Court of Appeal allowed the appeal on grounds concerning interference and proportionality (Grounds 3 and 5) and concluded that the Guidance as drafted risked unjustified interference with Article 10. The court upheld that police possess lawful powers to record information but required that the policy be clarified and better constrained by safeguards to avoid disproportionate interference.

Note: The judgment records that the 2014 Guidance has subsequently been replaced by a Revised Guidance in October 2020 that retains perception-based recording but adds emphasis on proportionality and guidance on contact with alleged perpetrators; the Court of Appeal considered those amendments but decided the 2014 Guidance itself required the remedial conclusions set out above.

Appeal allowed. The court accepted that the police have common-law powers to record and retain information and that the Guidance is accessible and pursues legitimate aims, but concluded that mandatory perception-based recording of non-crime hate incidents (as set out in section 6.3 of the 2014 Guidance) can constitute an interference with Article 10 and that in its 2014 form the Guidance was insufficiently tailored and lacked adequate safeguards, giving rise to a disproportionate chilling effect on freedom of expression; additional safeguards and clearer limits on recording are required.

Appeal from the Administrative Court (Julian Knowles J) Order dated 14 February 2020 (CO/2507/2019). The judge granted relief against the Chief Constable of Humberside but dismissed the claim against the College of Policing and certified a point of public importance under section 12(3A) of the Administration of Justice Act 1969. The Supreme Court declined to hear the matter first (refused permission in July 2020) and the appeal was heard in the Court of Appeal.