The High Court of England and Wales has found that the Police interfered with the freedom of expression of man who had tweeted about transgender issues in a way which a complainant found offensive.

The decision, R on the application of Harry Miller v The College of Policing [2020] EWCH 225 (14 February 2020) involved the lawfulness of the College of Policing’s operational guidance on non-criminal hate speech, and how the Humberside Police dealt with a complaint by a woman (Mrs B) about things the Mr Miller had written on Twitter about transgender issues which she found offensive.

The messages were recorded by Humberside Police as a ‘non-crime hate incident’. The Police spoke to Mr Miller on the phone about the complaint, after first turning up at Mr Miller’s workplace when he was not there. Mr Miller later complained that the police’s actions interfered with his right to express himself under Article 10(1) of the European Convention on Human Rights (the Convention).

In Mr Miller’s witness statement he said that the Police Constable told him he had been contacted by a person from ‘down south’. The Police Constable called the tweets transphobic and during their exchange he explained to Mr Miller, that while he had not committed a crime,  that he needed to check his thinking.

“Have you any idea what that makes you? ‘Nineteen Eighty-Four’ is a dystopian novel, not a police training manual,’” Mr Miller replied.

Mr Miller received subsequent warnings that he would be at risk of criminal prosecution if he continued to tweet.

Justice Julian Knowles’ started his judgment with a quote from George Orwell’s unpublished introduction to Animal Farm.

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

Justice Knowles found that the recording of the complaint as a “non-crime hate incident” was simply on the say-so of Mrs B without any critical scrutiny of the tweets or any assessment of whether what she was saying was accurate, when in fact what she told the Police was not accurate.

In her complaint Mrs B recorded that “These comments are designed to cause deep offence and show his hatred for the transgender community.”

Justice Knowles considered that there was no evidence that the tweets were ‘designed’ to cause deep offence, and Mrs B’s report was inaccurate. The tweets were not directed at the transgender community, they were primarily directed at Mr Miller’s Twitter followers.

Later Justice Knowles (at [259]) said that the effect of the police turning up at Mr Miller’s place of work because of his political opinions must not be underestimated. “To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society”.

The undisputed facts plainly showed that the police interfered with Mr Miller’s freedom of expression under Article 10(1) of the Convention, Justice Knowles held.

Mr Miller, also launched a wider challenge against the lawfulness of College of Policing guideline on hate crimes, which was rejected.

Justice Knowles ruled they were not disproportionate to the benefits which the guideline bring to the achievement of the objectives it serves.