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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Miller, R (On the Application Of) v The College of Policing [2021] EWCA Civ 1926 (20 December 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1926.html Cite as: [2022] WLR 4987, [2021] EWCA Civ 1926, [2022] 1 WLR 4987, [2022] HRLR 6, [2022] WLR(D) 55 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINSTRATIVE COURT
MR JUSTICE JULIAN KNOWLES
CO/2507/2019
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE SIMLER
and
LORD JUSTICE HADDON-CAVE
Between :
____________________
The Queen on the application of Harry Miller |
Appellant |
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- and - |
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The College of Policing |
Respondent |
____________________
Jason Coppel QC and Jonathan Auburn (instructed by Government Legal Department) for the Respondent
Hearing dates : 9-10 March 2021
____________________
Crown Copyright ©
Dame Victoria Sharp P. :
Introduction
i) Granted the application of the appellant, Mr Harry Miller, for judicial review of
the Chief Constable of Humberside's recording of a non-crime hate incident (in respect of Mr Miller) under the Guidance, and the subsequent actions taken in relation to him by officers under the Chief Constable's command (which included seeking to prevail on Mr Miller not to continue tweeting about proposed reforms to the Gender Recognition Act 2004); but
ii) Dismissed Mr Miller's application for judicial review against the College, in respect of the lawfulness of the Guidance itself.
The parties
The Convention
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The Guidance
was published in 2014.
i) The police adopt the definition of a racist incident as "any incident which is perceived to be racist by the victim or any other person" (recommendation 12);
ii) "The term "racist incident" must be understood to include crimes and non-crimes in policing terms. Both must be reported, recorded and investigated with equal commitment" (recommendation 13);
iii) Codes of practice be established by the Home Office, in consultation with police services, local government and relevant agencies, to create a comprehensive system of reporting and recording of all racist incidents and crimes (recommendation 15);
iv) The Metropolitan Police Service review their procedures for the recording and retention of information in relation to incidents and crimes to ensure that adequate records are made by individual officers and specialist units in relation to their functions, and that strict rules require the retention of all such records as long as an investigation remains open (recommendation 21).
i) Section 1.1 identifies the rationale for collecting data on what is described as monitored hate crime, namely that it helps to provide an accurate picture of the extent of hate crime and to deliver an intelligence-led response.
ii) Section 1.2 is headed Agreed Definitions. Section 1.2.1 is headed 'Monitored hate crime' and contains a box with three headings: Title, Definition and Included Subjects. "Hate motivation" is defined in this way:
"Hate crimes and incidents are taken to mean any crime or incident where the perpetrator's hostility or prejudice against an identifiable group of people is a factor in determining who is victimised. This is a broad and inclusive definition. A victim does not have to a member of the group."
iii) As for "Hate incidents", a hate incident in relation to people who are transsexual, transgender, transvestite and those who hold a gender recognition certificate under the Gender Recognition Act 2004 is defined as:
"Any non-crime incident which is 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" [emphasis added]
There are equivalent definitions in relation to other strands of monitored hate crime: disability, race, religion and sexual orientation.
iv) Section 1.2.2 headed Hostility, says:
"Understanding hostility is important to understanding the extent of hate crime. The term hate implies a high degree of animosity, whereas the definition and legislation it reflects require that the crime must be demonstrated or motivated (wholly or partially) by hostility or prejudice. Given that the term hate crime is used nationally and internationally, it is retained as a collective term but it is essential that the police service understands what is meant by it.
The ..[CPS] gives the following guidance to prosecutors:
"In the absence of a precise legal definition of hostility, consideration should be given to ordinary dictionary definitions, which include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike."
v) Section 1.2.3 which is headed "Perception-based recording of hate crime" provides that:
"For recording purposes, the perception of the victim, or any other person (see 1.2.4 Other person) is the defining factor in determining whether an incident is a hate incident, or recognising the hostility element of a hate crime. The victim does not have to justify or provide evidence of their belief, and police officers and staff should not directly challenge this perception. Evidence of hostility is not required for an incident or crime to be recorded as a hate crime or hate incident.
Crimes and incidents must be correctly recorded if the police are to meet the objective of reducing under-reporting and improve understanding of the nature of hate crime. The alleged actions of the perpetrator must amount to a crime under normal crime recording rules. If this is the case, the perception of the victim, or any other person will decide whether the crime is recorded as a hate crime. If the facts do not identify any recordable crime but the victim perceived it to be a hate crime, the circumstances should be recorded as a non-crime hate incident and not a hate crime.
It is necessary to provide sufficient evidence for the prosecution to prove hostility to the court for a conviction to receive enhanced sentencing, however, this is not necessary for recording purposes...."
vi) Para 1.2.4 which is headed "Other person" provides that:
"Perception-based recording refers to the perception of the victim, or any other person.
It would not be appropriate to record a crime or incident as a hate crime or hate incident if it was based on the perception of a person or group who had no knowledge of the victim, crime or the area, and who may be responding to media or internet stories or who are reporting for a political or similar motive.
The other person could however, be one of a number of people, including:
- police officers or staff
- witnesses
- family members
- civil society organisations who know details of the victim, the crime or hate crimes in the locality, such as a third-party reporting charity
- a carer or professional who supports the victim
- someone who has knowledge of hate crime in the area - this could include many professionals and experts such as the manager of an education centre used by people with learning disabilities who regularly receives reports of abuse from students
- a person from within the group targeted with the hostility eg a Traveller who witnessed racist damage in a local part
A victim of a hate crime or incident does not have to be a member of a minority group or someone who is generally considered to be vulnerable. For example, a heterosexual man who is abused leaving a gay bar may well perceive that the abuse is motivated by hostility based on sexual orientation although he himself is not gay. Anyone can be a victim of a hate incident or crime, including people working inside the police service."
vii) Paragraph 1.2.5 which is headed "Malicious Complaints" provides that:
"Some people, particularly celebrities and political figures, have been subjected to malicious complaints from hostile individuals, often with a grudge against the person, their politics or lifestyle. This, on occasions, can even be part of a stalking process. Sometimes these complainants will allege that the activity was based on hostility towards them because of their protected characteristics.
Police officers should not exacerbate the harm caused to a genuine victim when dealing with such incidents. It is also important not to falsely accuse an innocent person and harm their reputation, particularly where the allegation is made against a public figure.
In order not to harm an innocent party, the matter should be dealt with as swiftly and sensitively as is possible. In such circumstances investigating officers should seek support from senior colleagues and the CPS hate crime coordinator."
viii) Section 1.5. deals with Secondary victimisation. This is:
"a term used to describe situations where a victim suffers further harm because of insensitive or abusive treatment from those who should be supporting them, for example feeling they have experienced indifference or rejection from the police when reporting a crime or incident."
"Secondary victimisation is based on victim perception, rather than what actually happens. It is immaterial whether it is reasonable or not for the victim to feel that way."
Further:
"The police are responsible for managing the interaction to ensure that the victim has no residual feelings of secondary victimisation which can result in a loss of confidence in the police service and a reluctance to report incidents in the future."
"Not every reported incident amounts to a crime. Where no recordable crime has been committed, the hate incident should be managed in a professional, consistent and proportionate manner. The police have limited powers in these circumstances, but should recognise that hate incidents can cause extreme distress to communities and can be the precursor to more serious crimes.
6.1 Introduction
One of the fundamental findings of the Stephen Lawrence Inquiry was the need to respond to racist incidents as well as to crimes. Incidents can escalate to more serious actions if unchecked and the damage caused to victims is often as serious as if it were a crime. A non-crime hate incident is defined as:
any non-crime incident which is perceived by the victim, or any other person, to be motivated (wholly or partially) by hostility or prejudice.
If the hostility or prejudice is directed at one of the five monitored strands (race, religion, sexual orientation, disability and transgender) it should be recorded as a hate incident. See 1.2 'Agreed definitions'.
Background
There are some actions that are criminal if committed in public but not if they occur in a dwelling. An example of this would be public order offences, some of which are criminal offences if they take place in public places. It is understandable that a victim is likely to suffer the same harm by the incident, regardless of location.
Although the police have limited enforcement powers to deal with non-crime incidents, they do have a responsibility to prevent crime. The police service is subject to the public sector equality duty under section 149 of the Equality Act 2010. See 7 Partnership working.
While the police service supported the findings concerning the hate incidents set out in the recommendations of the Stephen Lawrence Inquiry, its response has often been inconsistent. It has also attracted criticism for under or overreaction to incidents. It is important that the police act in a proportionate way when such incidents are reported.
Most forces have a system for recording non-crime hate incidents and should be able to analyse non-crime incidents so that preventive (sic) activity can take place, and any tensions that exist in communities can be measured.
6.3 Recording non-crime hate incidents
"Where any person, including police personnel, reports a hate incident which would not be the primary responsibility of another agency, it must be recorded regardless of whether or not they are the victim, and irrespective of whether there is any evidence to identify the hate element.. ..[emphasis added]
The mechanism for local recording of non-crime hate incidents varies. Many forces record them on their crime recording system for ease of collection but assign them a code to separate them out from recordable crimes. Whichever system is used to record hate incidents, managers should have confidence that responses are appropriate and that crimes are not being recorded incorrectly as non-crime incidents.
Records must be factually accurate and easy to understand. At an early stage any risks to the victims, their family or the community as a whole must be assessed and identified.
The number of non-crime hate incidents is not collated or published nationally, but forces should be able to analyse this locally and be in a position to share data with partners and communities.
Police officers may identify a hate incident, even when the victim or others do not. Where this occurs, the incident should be recorded in an appropriate manner. Victims may be reluctant to reveal that they think they are being targeted because of their ethnicity, religion or other protected characteristic (especially in the case of someone from the LGBT community) or they may not be aware that they are a victim of a hate incident, even though this is clear to others.
6.4 Opposition to police policy
The recording of, and response to, non-crime hate incidents does not have universal support in society. Some people use this as evidence to accuse the police of becoming 'the thought police', trying to control what citizens think or believe, rather than what they do. While the police reject this view, it is important that officers do not overreact to non-crime incidents. To do so would leave the police vulnerable to civil legal action or criticism in the media and this could undermine community confidence in policing.
The circumstances of any incident dictate the correct response, but it must be compatible with section 6(1) of the Human Rights Act 1998. The Act states that it is unlawful for a public authority to act in a way which is incompatible with a right conferred by the European Convention on Human Rights. Some these rights are absolute and can never be interfered with by the state, eg, the freedom from torture, inhuman or degrading treatment or punishment. Some, such as the right to liberty, are classed as limited rights and can be restricted in specific and finite circumstances. Others, such as the right to respect for private and family life, the right to manifest one's religion or beliefs, freedom of expression, and freedom of assembly and association are qualified and require a balance to be struck between the rights of the individual and those of the wider community.
Qualified rights as usually set out in two parts, the first part sets out the right or freedom, and the second part sets out the circumstances under which the right can be restricted. Generally, interference with a qualified right is not permitted unless it is
- prescribed by or in accordance with the law
- necessary in a democratic society
- in pursuit of one or more legitimate aims specified in the relevant Article
- proportionate."
Information gathering and storage, incident recording and data management by the police
"All reports of incidents, whether from victims, witnesses or third parties and whether crime related or not, will, unless immediately recorded a crime, result in the registration of an auditable incident report by the police."
Further, on page 9, the rules provide that:
"The reasons for registering all incidents include the need to ensure forces have all the available information in relation to possible crimes in their area and to allow an audit trail to be created to ensure consistency of crime reporting between forces. Where a report is recorded as a crime initially.. .it is not necessary that an incident report is also created. However, where the initial report is not recorded as a crime, an auditable incident report must be registered (whether in the force incident system or some other accessible or auditable means)."
Disclosure of non-crime hate incidents
"(4) Before issuing an enhanced criminal record certificate DBS must request any relevant chief officer to provide any information which - (a) the chief officer reasonably believes to be relevant for the purpose described in the statement under subsection (2), and (b) in the chief officer's opinion, ought to be included in the certificate.
(4A) In exercising functions under subsection (4) a relevant chief officer must have regard to any guidance for the time being published by the Secretary of State."
Mr Miller's beliefs
"I am not, nor have I ever been, antagonistic toward those who hold, or are seeking to hold, a Gender Reassignment Certificate^! am not antagonistic to those who self identify as a gender which is contrary to their biological sex. I do not however accept the proposition that a person of one sex can biologically change to become the opposite sex. This forms the basis of my statement: I do not believe that trans women are women. I believe that trans women are men who have chosen to identify as women. I believe such persons have the right to present and perform in any way they choose, provided that such choices to not infringe upon the rights of women. I do not believe that presentation and performance equates to literally changing sex; I believe that conflating sex (a biological classification) with self identified gender (a social construct) poses a risk to women's sex based rights; I believe such concerns warrant vigorous discussion which is why I actively engage in the debate. The position I take is accurately described as Gender Critical. In this context (political reform) I want to raise awareness by stating that which used to be instinctively obvious - a biological man is a man and a biological woman is a woman. To claim otherwise is extraordinary. Extraordinary claims require both extraordinary evidence and extraordinary scrutiny prior to becoming law."
The events giving rise to these proceedings
"Your breasts are made of silicone/ your vagina goes nowhere/ And we can tell the difference/ Even when you are not there/ Your hormones are synthetic/And let's just cross this bridge/What you have, you stupid man/Is male privilege"
The proceedings
albeit accompanied by the Court's declaratory Order.
Grounds of appeal
Ground 1: the common law principle of legality
Miller's argument no further in this connection. Miller/Cherry was an exceptional case on its facts, concerning Parliamentary sovereignty as a limit on the prerogative power to prorogue Parliament. It neither addressed in terms nor sought to distinguish the principle of legality as identified in ex parte Simms (a principle which is consistent with Parliamentary sovereignty). As for the decision in R (UNISON) the central issue in that case was whether the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 was within the powers conferred by Section 42(1) of the Tribunals, Courts and Enforcement Act 2007, see para 65.
Ground 2: the lawfulness of the guidance under common law
The challenge to the Guidance under Article 10 of the Convention
Ground 3: Interference
"As a result, where the police do decide to take any action following the recording of an incident, this is carried out on the basis of an operational decision by the police exercising their common law and statutory powers. Where that decision is taken, the Guidance itself does not require a particular response, and expressly states that disproportionate action should not be taken."
Accordingly, the judge concluded was no real risk of any further consequences for Mr Miller's rights arising from the mere recording of his tweets pursuant to the Guidance.
"But if such a thing were to happen, it would not be the result of the [Guidance]... It would take place as a result of a decision taken under the Police Act 1997 and if and only if particular facts arose which made disclosure necessary. Whatever the theoretical possibilities, no-one suggested that in this case there is presently a foreseeable prospect of disclosure being made. Hence, to the extent it is argued that the prospect of such a disclosure has (or had) a chilling effect, I do not accept that occurs as a consequence of the [Guidance] itself. I acknowledge there is an argument that disclosure in such circumstances could only take place because of recording pursuant to the [Guidance]. But in my judgment the recording would be secondary to the primary disclosure decision, and only part of the background factual context." [183]
"Freedom of expression constitutes one of the essential foundations of a ["democratic society"], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 ...it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".
Prescribed by law: Ground 4
"196. If someone behaves in a way which carries the possibility that another person may subjectively conclude that it exhibits non-criminal hostility or prejudice in relation to one of the five protected strands then it will be recorded. That is because [the Guidance] requires in [6.1] and [6.3] such incidents to be recorded. This definition ensures that all complaints are treated the same, and citizens know how a complaint will be processed.
197. I accept that the subjective and perception-based approach in [the Guidance] means that the range of circumstances in which a 'non-crime hate incident' may be recorded is extremely wide in scope. However, a reasonable reader of [the Guidance would be able to foresee, with a reasonable degree of certainty (and with advice if necessary) the consequences of making a given statement, precisely because any statement that is reported as being motivated by hostility towards one of the monitored strands is to be a recorded as a non-crime hate incident. Those who exercise their freedom of speech in a way that may come to the attention of the authorities via a complaint will generally have a pretty good idea of their motivation, and whether it is foreseeably going to be interpreted by others as motivated by hostility or prejudice. In my judgment it is sufficiently certainly the case that perception based reporting does not render [the Guidance] uncertain.
198. [Mr Miller] argues .. that 'an individual who is considering whether to make a statement., .about transgender issues simply will not know whether that statement will generate the kind of complaint that will result in the recording of a 'non-crime hate incident'. However, as the [College] argues, the same could apply equally to any complaint of any incident or crime against any person. There is no reason to distinguish, for these purposes, between records of all incidents and records of hate incidents: all are triggered by reference to the subjective perception of the person reporting the incident."
"203.does not exclude that there must, on the facts narrated by a complainant, be some rational basis for concluding that there is a hate element. Suppose, for example, that a fat and bald straight non-trans man is walking home from work down his quiet residential street when abuse is shouted at him from a passing car to the effect that he is fat and bald. If that person went to the police and said the abuse were based on hostility because of transgender it cannot be the case that [the Guidance] would require it to be recorded as such as a non-crime hate incident when there is nothing in the facts which remotely begins to suggest that (sic) was any connection with that protected strand. Vitally important though the purposes which [the Guidance] serves undoubtedly are, it does not require the police to leave common sense wholly out of account when deciding whether to record what is or is not a non-crime hate incident."
Discussion
"The general principles applicable to the 'in accordance with the law' standard are well-established: see generally per Lord Sumption in Catt, above, [11]-[14]; and in Re Gallagher [2019] 2 WLR 509 at [16] - [31]. In summary, the following points apply.
(1) The measure in question (a) must have 'some basis in domestic law' and (b) must be 'compatible with the rule of law', which means that it should comply with the twin requirements of 'accessibility' and 'foreseeability' (Sunday Times v United Kingdom (1979) 2 EHRR 245; Silver v United Kingdom (1983) 5 EHRR 347; and Malone v United Kingdom (1985) 7 EHRR 14).
(2) The legal basis must be 'accessible' to the person concerned, meaning that it must be published and comprehensible, and it must be possible to discover what its provisions are. The measure must also be 'foreseeable' meaning that it must be possible for a person to foresee its consequences for them and it should not 'confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself' (Lord Sumption in Re Gallagher, ibid, at [17]).
(3) Related to (2), the law must 'afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise' (S v United Kingdom, above, at [95] and [99]).
(4) Where the impugned measure is a discretionary power, (a) what is not required is 'an over-rigid regime which does not contain the flexibility which is needed to avoid an unjustified interference with a fundamental right' and (b) what is required is that 'safeguards should be present in order to guard against overbroad discretion resulting in arbitrary, and thus disproportionate, interference with Convention rights' (per Lord Hughes in Beghal v Director of Public Prosecutions [2016] AC 88 at [31] and [32]). Any exercise of power that is unrestrained by law is not 'in accordance with the law'.
(5) The rules governing the scope and application of measures need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them (per Lord Sumption in Catt at [11]).
(6) The requirement for reasonable predictability does not mean that the law has to codify answers to every possible issue (per Lord Sumption in Catt at [11]).".
"Although I do not need to decide the point, I entertain considerable doubt whether [Mr Miller's] tweets were properly recordable under [the Guidance] at all. It seems to me to be arguable that the tweets (or at least some of them) did not disclose hostility or prejudice to the transgender community and so did not come within the definition of a non-crime hate incident. HCOG rightly notes at [1.2.2] that 'hate implies a high degree of animosity ...'. Professor Stock has explained that expressions which are often described as transphobic are not in fact so, or at least necessarily so (unlike racist language, which is always hateful and offensive). I acknowledge the importance of perception-based reporting .. .and I am prepared to accept that Mrs B had the perception that the tweets demonstrated hostility or prejudice to the transgender community. But I would question whether that conclusion was a rational one in relation to at least some of them. It is striking that no-where in their evidence did Mrs B or PC Gul specifically identify which tweets amounted to hate speech, or why. It is just asserted that they did, without further discussion. In my view many of them definitely did not, eg, the tweet about Dame Jenni Murray. That, it seems to me, was a protest against those who were seeking to curtail freedom of speech, and was not about transgender issues at all. Calling Dr Harrop a 'gloating bastard' was not very nice, but it was not displaying hatred or prejudice to the transgender community. Asking why gender critical views were not more represented in the media was a perfectly reasonable enquiry, as was asking what the Trans Day of Remembrance was. [Mr Miller's] evidence, which I accept, is that he is not prejudiced and that his tweets were sent as part of an ongoing debate. Whilst I am prepared to accept Mrs B's indignation, I question whether Mrs B fell into [1.2.4] as someone who was responding to an internet story or who was reporting for a political motive, making the recording of her complaint not appropriate. The Crime Report shows she herself was not above making derogatory comments online about people she disagrees with on transgender issues; in other words, Mrs B is an active participant in the trans debate online."
Ground 5: Proportionality
Discussion
"27. Index is concerned by the apparent growing number of cases in which police are contacting individuals about online speech that is not illegal and sometimes asking for posts to be removed. This is creating confusion among the wider population about what is and is not legal speech, and - more significantly - further suppressing debate on an issue of public interest, given that the government invited comment on this issue as part of its review of the Gender Recognition Act.
28. The confusion of the public (and police) around what is, and what is not, illegal speech may be responsible for artificially inflating statistics on transgender hate crime ... Police actions against those espousing lawful, gender critical views - including the recording of such views where reported as 'hate incidents' - create a hostile environment in which gender critical voices are silenced. This is at a time when the country is debating the limits and meaning of 'gender' as a legal category.
29. It has been reported that the hostile environment in which this debate is being conducted is preventing even members of parliament from expressing their opinions openly. The journalist James Kirkup said in a 2018 report for The Spectator: "I know MPs, in more than one party, who privately say they will not talk about this issue in public for fear of the responses that are likely to follow. The debate is currently conducted in terms that are not conducive to - and sometimes actively hostile to - free expression. As a result, it is very unlikely to lead to good and socially sustainable policy."
"I take the following points from this evidence. First, there is a vigorous ongoing debate about trans rights. Professor Stock's evidence shows that some involved in the debate are readily willing to label those with different viewpoints as 'transphobic' or as displaying 'hatred' when they are not. It is clear that there are those on one side of the debate who simply will not tolerate different views, even when they are expressed by legitimate scholars whose views are not grounded in hatred, bigotry, prejudice or hostility, but are based on legitimately different value judgments, reasoning and analysis, and form part of mainstream academic research."
He went on to say at [252]:
"[Mr Miller's] tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, [Mr Miller] expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons. This conclusion is reinforced by Ms Ginsberg's evidence, which shows that many other people hold concerns similar to those held by [Mr Miller]."
"Careful consideration should be given to the way in which officers and staff contact an individual who is the subject of a report of a non-crime hate incident. This applies to both the victim.and the suspect who may face disproportionate harm from insensitive contact, for example, by unnecessarily alerting others... Officers and staff should consider whether it is proportionate to the incident, and the aim of the contact, to contact people involved in the incident at their place of work or study, or in a manner which is likely to alert a third party… Police should always consider the least intrusive method of achieving contact for their proportionate aims…. In all cases it should be clearly stated to the person concerned that the matter is a non-crime hate incident and they are not being investigated for a criminal offence."
Lord Justice Haddon-Cave
Lady Justice Simler
Note 1 The judge ordered her anonymisation in the proceedings pursuant to CPR r39.2. [Back] Note 2 See Handyside v The United Kingdom, App no. 5493/72, (1979) 1 EHRR 737 [Back] Note 3 R (L) v Commissioner of Police [2010] 1 AC 410; R (AR) v Chief Constable [2018] UKSC 47; [2018] 1 WLR 4079. [Back] Note 4 Article 17 provides: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” [Back] Note 5 https://www.supremecourt.uk/cases/docs/uksc-2019-0065-judgment.pdf [Back] Note 6 https://www.supremecourt.uk/cases/docs/uksc-2019-0147-judgment.pdf [Back] Note 7 The Supreme Court also said that assessing the lawfulness of a Policy by reference to whether it creates a real risk of unfairness in a more than a minimal number of cases, insofar as that test departs from the more rigorous test to be derived from Gillick it was incorrect and should not be followed: see A v SSHD at [75]. [Back] Note 8 He cites the example of Ruth Smeeth MP (who is Jewish) who received approximately 25,000 abusive messages in a 2-month period in 2016, after an incident at the launch of the Chakrabarti Report into antisemitism in the Labour Party. [Back] Note 9 Article 8 of the Convention provides (1). Everyone has the right to respect for his private and family life, his home and his correspondence. (2). There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” [Back]