Introduction

Miller v The College of Policing ([2021] EWCA Civ 1926) is a landmark case adjudicated by the England and Wales Court of Appeal (Civil Division) on December 20, 2021. The central issue in this appeal revolves around the lawfulness of the Hate Crime Operational Guidance (the Guidance) issued by the College of Policing in 2014. Mr. Harry Miller, the appellant, challenged the policy's requirement for perception-based recording of non-crime hate incidents, asserting that it infringed upon his right to freedom of expression as protected under Article 10 of the European Convention on Human Rights (ECHR) and common law.

The case stems from Mr. Miller's experience where his Twitter activity, expressing gender-critical views, led to a complaint by Mrs. B, a transgender woman. The Humberside Police recorded his tweets as a non-crime hate incident under the Guidance, subsequently leading to actions that Mr. Miller claimed were disproportionate and violated his rights.

Summary of the Judgment

The initial judicial review by Julian Knowles J in February 2020 concluded that Mr. Miller’s broad challenge to the Guidance failed. The court held that:

• The recording of non-crime hate incidents based on perception does not inherently interfere with Article 10 rights.
• If such an interference exists, it is justified under Article 10(2) for the prevention of crime and protection of others' rights.
• The Guidance does not pose an unacceptable risk of violating Article 10(1) due to disproportionality.
• The subsequent treatment of Mr. Miller by the police, including warnings against tweeting, did interfere disproportionately with his freedom of expression.

Mr. Miller appealed this decision, specifically challenging the aspects related to interference with his Article 10 rights and the proportionality of the police's actions.

Analysis

Precedents Cited

The judgment references several key cases that have shaped the legal landscape regarding freedom of expression and hate crime recording:

• Handyside v The United Kingdom (1979): Established the concept of a "chilling effect" where fear of repercussions can deter free expression.
• R (Catt) v Commissioner of Police of the Metropolis (2015): Affirmed that non-intrusive data collection by police does not require statutory authorization.
• R (Miller / Cherry) v Prime Minister (2019): Highlighted the principle of legality focusing on statutory interpretation.
• Altug Tane Akcam v Turkey (2016): Demonstrated how the threat of prosecution can infringe Article 10 rights.
• R (Beghal) v Director of Public Prosecutions (2016): Emphasized the need for proportionality in restricting freedom of expression.

These precedents collectively underscore the importance of balancing state actions in recording hate incidents with the fundamental rights to free speech.

Legal Reasoning

The Court of Appeal critically examined the initial judgment and identified several areas where it believed errors were made:

• Interference with Article 10: The appellate court found that the initial judge underestimated the interference caused by perception-based recording. Even if the recording process is administrative, it can create a chilling effect, discouraging individuals from expressing their views.
• Proportionality: The appellate court argued that the interference with Mr. Miller’s rights was not proportionate to the aims of the Guidance. The broad scope of mandatory recording without sufficient safeguards can unjustifiably limit freedom of expression.
• Foreseeability: The requirement for actions to be foreseeable was deemed not adequately satisfied, especially given the potential for abuse in recording non-crime hate incidents without objective evidence.

Furthermore, the appellate court emphasized that while the Guidance serves legitimate aims such as preventing hate crimes and protecting vulnerable communities, the methods employed must not excessively infringe upon constitutional rights.

Impact

This judgment sets a significant precedent in the realm of hate crime recording and freedom of expression. It clarifies that:

• Perception-Based Recording: While necessary for monitoring hate incidents, such policies must be carefully balanced to avoid overreach that stifles legitimate public debate.
• Proportionality and Safeguards: Policies must incorporate sufficient safeguards to prevent disproportionate interference with individual rights, ensuring that recording mechanisms do not become tools for harassment or suppression of dissenting opinions.
• Transparency and Predictability: The legal framework governing hate incident recording must be transparent and predictable, allowing individuals to understand and regulate their conduct accordingly.

Future cases involving perception-based data recording will likely reference this judgment to assess the legality and proportionality of similar police policies.

Complex Concepts Simplified

Perception-Based Recording

This refers to the practice where authorities record incidents based on how they are perceived by the victim or any other person, without requiring objective evidence of hate motivation. This method aims to capture a broader range of incidents that may not amount to criminal offenses but still impact communities.

Chilling Effect

The chilling effect occurs when individuals refrain from exercising their free speech rights due to fear of legal repercussions or negative consequences from authorities.

Proportionality

Proportionality in legal terms assesses whether the extent of intrusion into individual rights is balanced against the importance of the objective pursued by the law or policy.

Foreseeability

Foreseeability requires that individuals can reasonably predict the consequences of their actions under a given legal framework, ensuring they can regulate their behavior accordingly.

Conclusion

Miller v The College of Policing serves as a crucial examination of the balance between effective hate crime monitoring and the protection of fundamental rights to freedom of expression. The Court of Appeal's decision underscores the necessity for laws and policies to not only pursue legitimate aims but also to respect and preserve the constitutional freedoms of individuals. By recognizing the potential for perception-based recording to infringe upon free speech, the judgment mandates a more nuanced and safeguarded approach in policy formulation and implementation.

This case reinforces the judiciary's role in ensuring that state policies do not overstep constitutional boundaries, especially in sensitive areas involving hate speech and public discourse. It calls for ongoing scrutiny and refinement of hate crime policies to align with human rights standards, thereby fostering a more equitable and free society.