In December, Harry Miller won an important free speech case that has been little commented on, despite its obvious import. Just before Christmas, the UK Court of Appeal validated Miller’s tweets on transgender issues as legitimate civil discourse instead of low-grade hate speech, as the local police had categorized it. Miller’s suit has also forced changes in the policing guidelines that caused his legal troubles in the first place.
Miller’s tussle with the local police over his tweets started in 2019, the Guardian reported.
A law to allow anyone to change their gender legally by an administrative process was under consideration in the UK which Miller, an ex-police officer, opposed. During the case he explained that he was “not antagonistic to those who self-identify as a gender which is contrary to their biological sex” but does not “however accept the proposition that a person of one sex can biologically change to become the opposite sex.”
Though the proposal has since been dropped, Miller dedicated many a tweet to the question of gender change, sometimes using caustic humor and a touch of profanity. “I was assigned Mammal at Birth, but my orientation is Fish. Don’t mis species me. F**kers,” read one tweet. In another, Miller asked: “Transwomen are women. Anyone know where this new biological classification was first proposed and adopted?” Later, he called the statement in question “bollocks,” another term well-mannered Brits don’t use around their grandmothers.
Someone reported the posts to the police, who followed up with a phone call. Miller wrote on the website of Fair Cop, a free speech campaign he co-founded, that the police officer gave him a 32 minute lecture on sarcasm, satire, “hurt feelings, and in-vitro body parts accidentally growing from a lady brain.” Miller responded with a question. Had he committed a crime? No, the officer told him. Miller asked him why he was calling him then.
“To check your thinking,” the police officer responded.
Miller told the officer the situation seemed rather Orwellian—a reference Miller says was lost on the officer.
But Miller didn’t stop tweeting, and the cops didn’t stop calling.
“The following week, the assistant chief constable threw the full weight of his bulging ACPO lapel behind his constable, sternly warning about escalation and proportionate action whilst publicly labelling me a transphobe. Just in case I hadn’t got the message (I had—I ignored it) Inspector Wilson called, urging me to disengage with public political debate. I reminded him of my Article 10 Rights. His response was, ‘If you don’t like it, sue,” Miller wrote.
Miller later discovered that his tweets were saved in a police database and that for the next six years, anyone doing a thorough background check on him—a potential employer for example—would find that the police considered him the author of a “non-crime hate incident.”
Miller decided to sue.
He claimed the police’s actions had a “substantially chilling effect” on his exercise of free speech and that they should be using their resources against actual hate speech that portends violence—not to hamper civil discourse, even if crudely worded.
The first judgement, handed down in February 2020 by Judge Julian Knowles, partly vindicated Miller. Knowles agreed the police had gone too far and had indeed impeded Miller’s exercise of free speech.
Knowles considered Miller’s tweets “for the most part, either opaque, profane or unsophisticated” but that in expressing opinions, “not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative” also deserve legal protection. He judged that the effect of the police’s actions towards Miller “because of his political opinions must not be underestimated.”
“In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society,” he said.
Knowles also ruled in favor of Miller because he found no evidence his tweets “were ‘designed’ to cause deep offence,” nor that they were directed at the transgender community. In Knowles’ judgement, Miller’s primary target audience was his several hundred Twitter followers and there wasn’t “the slightest risk” that Miller would commit a criminal offence in his tweeting.
But the police, on the contrary, had led Miller “reasonably, to believe that he was being warned not to exercise his right to freedom of expression about transgender issues on pain of potential criminal prosecution,” Knowles pronounced.
On the same day Miller won in court in 2020, so did Stephanie Hayden, a transgender woman who has suited Kate Scattow for harassing her on social media. Scattow had set up different social media accounts in which she called Hayden a “racist” and “a pig in a wig,” in addition to repeatedly referring to Hayden by male pronouns. Scattow was fined £1,000 for persistently using a public communication platform to inconvenience, annoy, and cause anxiety to Hayden.
Cara English from the group Gendered Intelligence told the Guardian she welcomed the Scattow conviction but called for measured language regarding the outcome of the Miller trial.
“If those users antagonistic to trans people freely living their lives could dial down the needlessly inciting language—particularly on Twitter—that may help to deescalate the unfortunate situation in which we find ourselves,” English said. Knowles rejected, though, Miller’s wider challenge to the lawfulness of the Hate Crime Operational Guidance, ruling that it “serves legitimate purposes and is not disproportionate.”
The guidance defines a non-crime hate incident as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice.”
In place since 2014, the guidance was largely based on the Macpherson Report, a government investigation following the murder of Stephen Lawrence, a black teenager, in London in 1993. Lawrence had been subjected to racial antagonism before he was killed. The report recommended that early intervention could have prevented his death.
After the February 2020 decision, Miller went on to successfully challenge the guidance and the recording of non-crime hate incidents.
The December 2021 ruling requires the guidance to be made clear to avoid intrusion on free speech.
Dame Victoria Sharp called the recording of non-crime hate incidents “plainly an interference with freedom of expression” and added knowing they are being stored in a database “is likely to have a serious ‘chilling effect’ on public debate.” The discussion around gender involved “plainly important matters of public interest on which strong views are held and publicly expressed,” she also said.
She acknowledged a need to protect those whose views some may consider offensive.
“Mr Miller 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,” she said.
The three judges who ruled on the appeal, concurred that Miller’s tweets did not constitute hate speech.
They also objected to establishing a non-crime hate incident based solely on the perception of one person without having to present evidence of harm. One justice commented that it would have been better for Miller to have been charged directly with a hate crime because that would have at least included the presumption of innocence.
In March 2020, the College of Police had presented revisions to the guidelines, but Sharp said the revisions “do not go very far, or not nearly far enough to address the chilling effect of perception-based recording more generally,” the Guardian reported
Speaking to the press after the verdict was delivered, Miller said: “By framing reality, inquiry and dissent as prejudice, bigotry and hate, the College of Policing has failed to protect the liberty that used to be taken for granted by the citizens of this great nation.”
Through freedom-of-information-requests, Fair Cop discovered the police had created around 120,000 records of non-crime hate incidents between 2014 and 2019 but that no force analysed the data. Fair Cop is also seeking to have those records expunged.
The day the appeals court delivered its decision, the organization also issued a warning to police. “Letting every Chief Constable know that the police reign of terror is over. From now on, we are the ones who knock. We are the danger,” its tweet read.
The Daily Mail also reported that the Home Secretary Priti Patel announced in the days after the December verdict that she was drawing up changes to the hate crimes guidelines and that she wanted police to investigate “actual crimes, not hurt feelings.”
