UK: Top Court Rules Police Acted Unlawfully In 'Transphobic Tweets' Investigation

The English High Court has ruled the police acted “unlawfully” when investigating “transphobic” tweets posted by ex-cop Harry Miller.

Justice Julian Knowles ruled against the College of Policing, and said that their investigation into Miller’s “transphobic” tweets and comments could create a “chilling effect” on free speech.

The case started in January 2019, when one single transgender activist took issue with Miller’s supposedly transphobic tweets, and reported them to the Humberside Police as a “non-hate crime incident.” The police were eager to jump into action, and called up Miller to question him about his tweets. The Hate Crime Operational Guidance (HCOG), created by the College of Policing in 2014, said that any comment reported as hateful “must be recorded irrespective of whether there is any evidence to identify the hate element”.

Miller recounted the conversation with the police to The Spectator when the story originally broke:

Cop said he was in possession of 30 Tweets by me. I asked if any contained criminal material. He said…. No. I asked if any came close to being criminal… and he read me a limerick. Honestly. A limerick. A cop read me a limerick over the phone. I said, I didn’t write that. He said, “Ah. But you Liked it and promoted it.” I asked why he was wasting his time on a non crime. He said, “It’s not a crime, but it will be recorded as a hate incident”… This is where it gets incredibly sinister. The cop told me that he needed to speak with me because, even though I’d committed no crime whatsoever, he needed (and I quote) “to check my THINKING!” Seriously. Honestly. Finally, he lectured me. Said, “Sometimes, a woman’s brain grows a man’s body in the womb and that is what transgender is”… He told me that I needed to watch my words more carefully or I was as risk of being sacked by the company for hate speech.

“We are heading absolutely towards some Orwellian state and the police are using 1984 as an operating manual and this frightens the life out of me,” Miller said:

It creates a chilling atmosphere for those who would express a gender critical position. The idea that a law-abiding citizen can have their name recorded against a hate incident on a crime report when there was neither hate nor crime undermines principles of justice, free expression, democracy and common sense.

The “limerick” that the police were especially concerned about was from a feminist poet, and reads as follows:

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.

Mrs B, the original complainant, said in a statement to the court that “I was so alarmed and appalled by [Miller’s] brazen transphobic comments that I felt it necessary to pass it (sic) on to Humberside Police as he is the chairman of a company based in that force’s area,” adding that he was a “bigot” who “eighty years ago … would have been making the same comments about Jewish people.”

Mrs B addressed Miller at the end of her statement, telling him that “whether you or your followers like it or not, you have been served notice that your disgusting, bigoted, bullying, utterly reprehensible behaviour is NOT going to be tolerated any longer.” Mrs B clarified that was “NOT a threat.”

However, Justice Knowles said in his ruling that the HCOG guidance “doesn’t make sense”:

How can it be a hate incident if there is no evidence of the hate element? We live in a pluralistic society where none of us have a right to be offended by something that they hear. Freedom of expression laws are not there to protect statements such as ‘kittens are cute’ – but they are there to protect unpleasant things. Its utility lies in exposing people to things that they do not want to hear.

Knowles ruled that the police violated Miller’s human rights, and entertains “considerable doubt” whether they should have ever been recorded under the HCOG guidelines:

There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his 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.

Miller said the decision “is a watershed moment for liberty – the police were wrong to visit my workplace, wrong to ‘check my thinking’.” Paul Conrathe, Miller’s solicitor added that the judgement is “a strong warning to local police forces not to interfere with people’s free speech rights on matters of significant controversy.”

Fair Cop, an organisation that backed Miller during his case, said that the judgement “should have a chilling effect. On the police”:

If you act as Big Brother on behalf of rainbow warriors or grievance mobs, beware. Fair Cop is watching you. We stand here today between the twin dragons of liberty and law, and you stand behind a chocolate fire guard called The College of Policing Guidance. It will not shield you; you will get burned. Fair Cop’s advice to Chief Constables is this: Uphold the law. If you have to choose between the guidance and law. For the sake of liberty, choose law.

However, the sentence comes on the same day as Kate Scottow, 39, was convicted and fined £1,000 for “offensive tweets,” where she labelled Stephanie Hayden, 48, a transgender woman, as “a pig in a wig,” and for referring to Hayden with male pronouns during a period of “significant online abuse.” Tom Slater, the deputy editor at Spiked, the libertarian magazine, said that the judgements prove that as we go “one step forward, [we also go] two steps back… Free speech in this country is still in serious trouble.”

One step forward two steps back. Harry Miller retweeting a 'transphobic' limerick is deemed lawful just as Kate Scottow is found guilty of misgendering someone on Twitter. Free speech in this country is still in serious trouble.

— Tom Slater (@Tom_Slater_) February 14, 2020

The judgement in Miller’s case also upholds the HCOG, as Knowles argued that “the police have the power at common law to record and retain a wide variety of data and information,” continuing the police’s right to investigate other non-hate incidents, including other supposed transphobic, racist, sexist, or ableist tweets. Jonny Best wrote on Twitter that this creates a “nuanced judgement”:

The wider free speech question remains: if Harry Miller's tweets were legal, what justification can there really be for recording a hate incident? Should a citizen who acts legally be subject to reputational damage at the hands of the police?

— Jonny Best (@jonnnybest) February 14, 2020

Miller and his legal team have appealed against this part of the ruling, and permission has been granted to take this straight to the UK Supreme Court.