Twitter, transgender issues, hate-speech and Article 10: R (Miller)

Background

In R (Miller) v The College of Policing & Anor [2020] EWHC 225 (Admin), the issue before the Court was freedom of speech. There were two aspects: the lawfulness of the College of Policing’s Hate Crime Operational Guidance (HCOG) on non-criminal hate speech and, specifically, how Humberside Police – the second Defendant – dealt with a complaint by a woman called Mrs B that she had been offended by things that Mr Miller had written on Twitter about transgender issues [7]. (Ironically, Mr Miller was a former officer in Humberside Police.)

Julian Knowles J noted that transgender issues were a current topic of controversy. The Government’s 2018 consultation on reforms to the Gender Recognition Act 2004, Reform of the Gender Recognition Act – Government Consultation, July 2018, proposed replacing the current requirements for obtaining a Gender Recognition Certificate with an approach that placed a greater emphasis on an individual’s self-identification of his or her gender. The Minister concluded her introduction to the consultation document like this:

“We … want to be clear that this is an explorative consultation and we do not have all the answers. That is why, as we consult, we are mindful of the need to engage with all perspectives. We particularly want to hear from women’s groups who we know have expressed some concerns about the implications of our proposals” [13].

Broadly speaking, Mr Miller was concerned that removing the requirement for a medical diagnosis and streamlining other parts of the process carried risks for women because, for instance, it might make it easier for trans women to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges [14]. He posted a number of tweets on that theme which Mrs B reported to the police as “transphobic” [15].

In accordance with the College of Policing’s HCOG, Humberside Police recorded the messages as a “non-crime hate incident”. PC Mansoor Gul, a Community Cohesion Officer, subsequently spoke to Mr Miller by telephone about his tweets and visited him at work. Mr Miller subsequently complained about his treatment by the police, claiming that they had interfered with his right under Article 10(1) ECHR to express himself on transgender issues [15].

The judgment

Julian Knowles J described Mr Miller’s tweets as “for the most part, either opaque, profane, or unsophisticated”; however, that did not rob them of the protection of Article 10(1) ECHR:

“I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant 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”.

– and the contextual evidence was that Mr Miller’s views were shared by a number of respected academics who hold gender-critical views for socio-philosophical reasons [251].

The Defendants had argued that that was not relevant to the issues in the case; however, Knowles J disagreed, because, under Article 10 ECHR, special protection is afforded to political speech and debate on questions of public interest [252]. He cited  Vajnai v Hungary (No. 33629/06: judgment of 8 July 2008) at [47], where the Court emphasised that there was:

“… little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest”.

As to whether or not there had been an unlawful interference with Mr Miller’s Article 10 rights,

“Warning the Claimant that in unspecified circumstances he might find himself being prosecuted for exercising his right to freedom of expression on Twitter had the capacity to impede and deter him from expressing himself on transgender issues” [261].

There had been no evidence that Mr Miller 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” [259].

The police’s actions, taken as a whole, had had a chilling effect on his right to freedom of expression – which constituted an interference for the purposes of Article 10(1) [261}.

The suggestion that Mr Miller’s tweets might have constituted an offence under s.127 of the Communications Act 2003 (which makes it an offence to send “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character” via a public telecommunications system) or under s.1 of the Malicious Communications Act 1988 was “not remotely tenable” and that interference had not, therefore, been “prescribed by law” [268].

Knowles J was prepared to accept PC Gul’s bona fides and that the police’s actions taken as a whole were aimed at two of the purposes specified in Article 10(2): the prevention of crime and/or the protection of the rights and freedoms of others. Though there had in fact been no risk of any offence being committed by the Claimant, His Lordship was prepared to accept that the interference had pursued a legitimate aim [274].

As to whether or not the interference had been “necessary in a democratic society”:

“The Claimant’s tweets were not targeted at Mrs B, nor even the transgender community. They were primarily aimed at his 900-odd Twitter followers many of whom… can be assumed to be of a like mind. Mrs B chose to read them. Until she got involved, there is no evidence anyone had paid any attention to the Claimant’s tweets. No-one had been bothered by them. No-one had responded to them. No-one had complained about them. Some of them were so opaque I doubt many people would have understood them even if they had read them [279]. I hesitate to be overly critical of Mrs B, given she has not given evidence, but I consider it fair to say that her reaction to the Claimant’s tweets was, at times, at the outer margins of rationality” [280].

Further, he had “considerable doubt whether the Claimant’s tweets were properly recordable under HCOG at all” [281]: in short, Mrs B’s upset did not justify the police’s actions towards Mr Miller [283] and the measure taken was not rationally connected to the objective pursued [284].

In conclusion, though the College of Policing’s Hate Crimes Operational Guidance was lawful and did not of itself breach Article 10, Humberside Police’s treatment of Mr Miller had interfered disproportionately with his right of freedom of expression.

Afterword

The Times subsequently reported that Downing Street had expressed concern over the operation of the College of Policing’s Guidance and had indicated that it was prepared to press for a review of the situation. A No 10 source was quoted as saying:

“The UK is an open and diverse country and freedom of speech is one of the values that define us as a society. It is important we distinguish between strongly-felt debate and unacceptable acts of abuse, hatred, intimidation and violence.”

Or as former Lord Justice of Appeal Sir Alan Moses put it in an interview on his retirement as Chairman of the Independent Press Standards Organisation:

“If you’re the victim of something that is deeply offensive, it is the most unpleasant, uncomfortable thing that you can imagine. But what we have to acknowledge is that, in striking the right balance in this country, there is no right not to be offended.”

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