Harry Miller (R on the application of) v The College of Policing

Police may collect, retain and use information for policing purposes under their common-law powers. The common-law principle of legality does not require express statutory authority for every interference with freedom of expression.

However, mandatory categorisation and recording of lawful speech as a non-crime hate incident engages Article 10 because it may stigmatise the speaker, create a risk of disclosure, and have a serious chilling effect on public debate. A policy which requires recording solely on perception, without adequate safeguards against irrational or abusive complaints, is disproportionate where less intrusive measures can achieve the legitimate aims of preventing crime and protecting others.

Harry Miller posted gender-critical views on Twitter during public debate about proposed reform of the Gender Recognition Act 2004. Following a complaint, Humberside Police recorded 31 tweets as a non-crime hate incident under the College of Policing’s 2014 Hate Crime Operational Guidance. An officer visited Mr Miller’s workplace and warned him about possible escalation to criminality.

Julian Knowles J granted judicial review against the Chief Constable because the police response interfered disproportionately with Mr Miller’s freedom of expression. He dismissed the challenge to the Guidance itself, holding that mere recording was not an interference with Article 10, or was justified if it was. Mr Miller appealed solely against the College. The central issue was whether the Guidance’s mandatory perception-based recording of non-crime hate incidents was lawful under common law and Article 10.

1. Appeal allowed on grounds 3 and 5. The court rejected the common-law challenge. Police common-law powers extend to collecting and retaining information about non-crime hate incidents for policing purposes. The principle of legality is a principle of statutory construction. It does not create a free-standing requirement for express statutory authority whenever official action may affect freedom of expression.

2. The Guidance’s compulsory categorisation and recording of speech as a non-crime hate incident interfered with Article 10(1). The distinction between categorising and recording was artificial. A police record identifying a person as responsible for a hate incident may stigmatise that person, carry a non-trivial risk of later disclosure, and deter lawful speech on controversial matters of public interest. The protection of Article 10 extends to speech which is offensive, shocking or disturbing but remains lawful.

3. The interference was nevertheless prescribed by law. The non-statutory Guidance identified the circumstances in which perception-based recording was required with sufficient foreseeability. Its breadth did not make it legally uncertain. The court rejected the judge’s view that an unexpressed general discretion not to record irrational complaints could be read into the mandatory language; the specified exceptions were limited, and proportionality in section 6.4 concerned the police response after recording rather than the recording decision.

4. The Guidance was disproportionate. Applying the proportionality framework in [2014] AC 700, the court accepted that recording can prevent crime, identify community tensions and protect the rights of others. It was rationally connected to those aims. But the requirement was exceptionally broad: it required recording on subjective perception irrespective of evidence, at a low threshold of hostility, and without sufficient safeguards for lawful political speech. The policy thereby sanctioned or encouraged conduct contrary to Article 10.

5. Perception-based recording was not unlawful in itself. Less intrusive measures and additional safeguards could preserve its legitimate aims while reducing the impact on freedom of expression. It was for the College, rather than the court, to revise the Guidance so that it accurately stated what police should do and did not mislead either police officers or the public.

• Supreme Court: On 30 July 2020, refused permission for a leapfrog appeal, stating that the appeal should first be heard by the Court of Appeal.
• Court of Appeal (Civil Division): Allowed Mr Miller’s appeal against the College’s Guidance: [2021] EWCA Civ 1926.
• High Court (Administrative Court): Julian Knowles J granted relief against the Chief Constable of Humberside for the combined police actions, but dismissed the challenge to the College’s Guidance. The order was dated 14 February 2020.