Is “Perception-Based Recording” for hate crime compatible with freedom of speech?

28 January 2022 by

The Appellant, Harry Miller, succeeded in this appeal. Image: The Guardian

In R (Harry Miller) v The College of Policing [2021] EWCA Civ 1926, the Court of Appeal ruled that current police guidance on the recording of ‘hate incidents’ unlawfully interferes with the right to freedom of expression. The decision overturns a 2020 ruling by the High Court in which Mr Miller’s challenge to the lawfulness of the Hate Crime Operational Guidance was dismissed (discussed previously on this Blog here).

Facts

The central issue raised in the appeal is the lawfulness of certain parts of the Hate Crime Operational Guidance. The Guidance, issued in 2014 by the College of Policing, sets out the national policy in relation to the monitoring and recording of what are described as “non-crime hate incidents”. At the root of the challenge is the policy of “perception-based recording”, which states that non-crime hate incidents must be recorded by the police as such (against the named person allegedly responsible) if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” and irrespective of any evidence of the “hate” element.

Mr Miller, who is described as having “gender critical” beliefs, was reported to Humberside Police by Mrs B in January 2019 for posting comments on his Twitter account, which she asserted were “designed to cause deep offence and show his hatred for the transgender community.” Whilst there was no evidence of a criminal offence, the incident was recorded as a “hate incident” and Mr Miller was visited at work by a police officer who told him to “check his thinking.” Mr Miller subsequently brought a claim for judicial review.

Prior Proceedings in the High Court

In the High Court, Knowles J held that:

  1. Mr Miller’s broad-based challenge to the legality of the Guidance under the common law and Article 10 of the Convention, failed;
  2. The mere recording of a non-crime hate incident based on an individual’s speech is not an interference with his or her rights under Article 10(1) of the Convention, but if it is such an interference, it is prescribed by law and done for two of the legitimate aims in Article 10(2), namely the prevention of crime and the protection of the rights of others;
  3. The Guidance does not give rise to an unacceptable risk of a violation of Article 10(1) on the grounds of disproportionality; but
  4. The police’s treatment of Mr Miller after a complaint was made against him that was recorded as a non-crime hate incident, disproportionately interfered with his right of freedom of expression.

The Court of Appeal’s Ruling

Mr Miller advanced five grounds of appeal against the lawfulness of the Guidance.

Ground 1: the common law principle of legality

Mr Miller submitted that Knowles J was wrong to hold that the principle of legality is merely a principle of statutory construction, and therefore wrong to decide that the impugned provisions in Chapter 6 of the Guidance are lawful in absence of express statutory or established common law authorisation.

The Court of Appeal dismissed this submission because the police do have the power at common law to record and retain and use a wide variety of data and information, including images of information and personal information. The Court held there was “no basis for the argument that the common law powers do not extend to the collection and retention of details of non-crime hate incidents.” [55]

Ground 2: the lawfulness of the guidance under common law

Knowles J said at para [171] that Mr Miller’s common law challenge that it was irrational to record non-crime hate incidents based on the perception of the complainant, “in reality is an argument about proportionality which is to be analysed as part of the [Mr Miller’s] challenge to [the Guidance] under Article 10”. The Court of Appeal found no reason to depart from the High Court’s approach.

Ground 3: interference with Article 10(1) ECHR

It was stated that Knowles J “acknowledged the argument that the mere act of recording speech may have a chilling effect on the speaker’s right to freedom of expression, but he said the mere recording without more was too remote from any consequences to amount to a Handyside restriction and had no real consequence for the individual such as Mr Miller [176-7].” [64]

The Court of Appeal held this approach was incorrect. Giving the only reasoned judgment, Dame Victoria Sharp stated that “the principles of law that protect freedom of expression and which underpinned much of what the judge said in support of his conclusion that the police had infringed Mr Miller’s rights were matters that should have led to the same conclusion against the College.” [71] No principled distinction could be drawn between the administrative act of “categorising” incidents, which the High Court attributed to the College, and the “requirement to record” which it did not:

In the absence of the Guidance, it may be that an incident reported by a member of the public would be recorded as a complaint or incident, but the nature of the record is very different: the record must include time and date of report, method of reporting, details of the person making the report and sufficient information to describe the location and nature of the report (see paras 22 to 25 above). There is no suggestion that the person reporting is referred to as a victim, nor that the person against whom a complaint is made is referred to as a suspect. Moreover ‘incident’ suggests some objective fact being recorded and no necessary stigma from the word hate being attached to it. The Guidance by contrast, requires things like speech to be categorised and recorded as a ‘hate incident’ when no objective incident has necessarily occurred, apart from the speech itself. [72]

In short, “the recording of non-crime hate incidents is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate.” [73]

The Court’s decision on this point was informed by the approach of the Strasbourg Court in Altug Tane Ackam v Turkey [2016] 62 EHRR 12.

That case concerned a Professor of the Armenian genocide who published an opinion in a Turkish-Armenian newspaper criticising the prosecution of the late editor of that newspaper for the crime of “denigrating Turkishness”. A complaint was then made against the Professor which led to a criminal investigation but ultimately no prosecution. The Grand Chamber held that despite the impugned provision of the Turkish Criminal Code not being applied to the applicant’s detriment, the fear of sanction had a chilling effect on the exercise of freedom of expression, given the likelihood of the fear discouraging further similar statements (paras 65-68).

Whilst Mr Miller faces no risk of prosecution, the Court held he still:

belongs to a group of people who could easily be stigmatised for their opinions and be subject to complaints by those offended by his views. He is able to contend that the impugned provisions have violated his rights as he was required to modify his conduct because of them or risk having a “non-crime hate incident” being recorded against him and he is member of a class of people who risks being directly affected by the measure. [76]

In addition to the chilling effect, Mr Miller faces a non-trivial risk that in future such a record might be disclosed on an enhanced criminal record certificate. Notwithstanding the existence of various statutory disclosure safeguards, the fact remains that “but for the hate incident record, there would no such risk.” [76]

Ground 4: is the interference prescribed by law?

Mr Miller’s challenge under this ground focussed on the requirement of foreseeability. The essence of his submission was that the perception-based definition of non-crime hate incidents is such that people cannot foresee the consequences of making a given statement; it is uncertain whether there is a discretion not to record said incidents, and, if there is such a discretion, its scope is unclear.

The Court of Appeal rejected this challenge. In its view, the Guidance did articulate principles which could be applied in a “reasonably predictable” manner. Rules relating to offensive and discriminatory views are not “an area where precision could be achieved and flexibility is particularly important where the provisions fall to be applied to a large number of cases”. [86]

Nevertheless, Dame Victoria Sharp expressed her disagreement at paras [88] to [94] with Knowles J’s assessment of the clarity of the Guidance in respect of the interaction between a mandatory requirement to record a reported incident, and his decision to read into the Guidance, a “common sense discretion” on the part of the police not to record an incident. Her Ladyship was unconvinced that these principles could co-exist in a manner which might still guarantee the foreseeability of the Guidance. The parameters of this balance will surely need to be addressed.

Ground 5: proportionality

Having decided that there was an interference with Article 10, the Court of Appeal went on to rule that the interference was disproportionate. This is because the Guidance mandates the recording of non-crime hate incidents with no real discretion.

Applying the Bank-Mellat test, the Court held unambiguously that “perception-based recording has a legitimate aim”, as it allows the police to respond appropriately to incidents which might indicate “community tensions and … hostility which can escalate to more serious and criminal behaviour if unchallenged.” [108]

However, less intrusive means could have been used to achieve those aims. In the Court’s determination, “the scope of the conduct that must be recorded by the police as a non-crime hate incident is extraordinarily broad, and deliberately so.” [111] By not requiring any investigation into the motivation behind an incident, the Guidance contemplates “the recording by the police of incidents as non-crime hate incidents, which are, to put it shortly, non-crime non-hate incidents (emphasis added).” [112] In respect of hate crime, by contrast, the Guidance provides for an evidential step to objectively assess the commission of a crime.

The Court further discussed the social and political context in which this case is taking place. Whilst the Guidance applies without distinction to the protected strands identified, “the prism provided by this case has been the public debate concerning transgender issues and the adverse impact that the Guidance has on freedom of expression in that context, specifically, the chilling effect that it has on an important issue of legitimate public interest.” [115]

In sum, the Guidance operates an “exceptionally wide net” for the recording of non-crime hate speech and it contains nothing, for instance, about “excluding irrational complaints, including those where there is no evidence of hostility” [117]. The disproportionality of this approach is heightened by the use of language (e.g. ‘victim’) which may “unfairly stigmatise” those against whom a complaint is made. There is, moreover, nothing in the Guidance regarding the notification of those against whom a record has been made.

The Court of Appeal was also explicit in stating that the Revised Guidance (published after the High Court judgment), despite its greater emphasis on proportionality, does “not go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally.” [122]

Comment

Underpinning this case is an unanswered question about the suitability of operating a perception-based recording regime in a context where the parameters of a particular protected characteristic are subject to vigorous debate. The Court observed that when the Macpherson Report was produced in 1999, its recommendations were confined to racial incidents. Whilst contemporary debates are informing new understandings of racism, there is no reasonable disagreement when it comes to hate incidents. Unconditionally translating this perception-based approach to transgender identity, however, is trickier because the shape and scope of protected characteristics can vary.

The Court of Appeal was reluctant to make practical recommendations for revising the Guidance to ensure it did not continue to have a chilling effect on free speech. Nevertheless, given the Court was dissatisfied by the Revised Guidance’s abstract insistence that police officers take a proportionate approach when recording non-crime hate incidents, we might infer that a lawful regime will need to establish more concrete and specific steps. For instance, future Guidance might have to require police officers to conduct a preliminary, context-oriented assessment of the reasonableness of a complaint before recording a non-crime hate incident.

The dilemma is that such an approach is ultimately inconsistent with the subjectivity inherent to perception-based reporting. On this basis, it would seem the Court might tacitly be inviting the College of Policing to depart from Macpherson principles in relation to non-crime transgender hate incidents. If that is the case, more court battles surely await.

Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini

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