R Harry Miller v The College of Policings

Hearing dates: 20 and 21 November 2019

Approved Judgment

The Honourable

Introduction

In his unpublished introduction to Animal Farm (1945) George Orwell wrote:

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

In R v Central Independent Television plc[1994] Fam 192, 202–203, Hoffmann LJ said that:

“… a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”

Also much quoted are the words of Sedley LJ in Redmond-Bate v Director of Public Prosecutions(1999) 7 BHRC 375, [20]:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …”

In R v Shayler[2003] 1 AC 247, [21], Lord Bingham emphasised the connection between freedom of expression and democracy. He observed that ‘the fundamental right of free expression has been recognised at common law for very many years’ and explained:

“The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated …”.

Article 10 of the European Convention on Human Rights (the Convention) also protects freedom of expression. It provides:

“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.”

In Handyside v United Kingdom (1979–80) 1 EHRR 737 the European Court of Human Rights (the Court) considered an Article 10 challenge by Mr Handyside following his conviction for obscenity. The Court said at [49]:

“Freedom of expression constitutes one of the essential foundations of such a 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’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”

I turn to the case before me. It concerns freedom of speech. It involves the lawfulness of the First Defendant's operational guidance on non-criminal hate speech and, specifically, how Humberside Police dealt with a complaint by a woman called Mrs B about things the Claimant had written on Twitter about transgender issues that offended her.

I suspect that American constitutional scholars would find this case surprising. There, the speech at issue would not have raised a flicker with the authorities. In his State of the Union address in 1941 President Roosevelt proposed four fundamental freedoms that people ‘everywhere in the world’ ought to enjoy, the first of which was freedom of speech. In the United States that freedom is protected by the First Amendment. It is a bedrock constitutional principle that speech may not be legally restricted on the grounds that it expresses ideas that offend. The strength of that protection is illustrated by Virginia v Black538 US 343 (2003), where the US Supreme Court held that a law which criminalized public cross-burning was unconstitutional as a violation of free speech – despite the offensive nature of that symbol which, the Court said, was ‘inextricably intertwined with the history of the Ku Klux Klan’. Another example is Snyder v Phelps562 US 443 (2011), where the Court upheld the right of members of an evangelical church to picket soldiers' funerals carrying signs celebrating their deaths and other messages which most people thought were grossly offensive.

The freedom of speech afforded by the common law and Article 10 does not go so far as the First Amendment. But it is worth keeping that constitutional provision in mind because it underscores the vital importance of freedom of speech to a thriving democracy – a principle which James Madison recognised as long ago as 1789 when he drafted the First Amendment, and which Lord Bingham reaffirmed in Shayler, supra.

Moving to the twenty-first century, I probably do not need to explain that Twitter is a popular microblogging and social networking service. In Chambers v Director of Public Prosecutions[2013] 1 WLR 1833, [7] – [10], Lord Judge CJ gave the following helpful description of how Twitter works:

“7. … Twitter was not invented until 2006 … but, as is the way with modern means of communication, its daily use by millions of people throughout the world has rocketed.

8. Each registered user adopts a unique user name or ‘Twitter handle’ …

9. In very brief terms Twitter enables its users to post messages (of no more than 140 characters) on the Twitter internet and other sites. Such messages are called tweets. Tweets include expressions of opinion, assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions of what the user is or has been doing, or where he has been, or intends to go. Effectively it may communicate any information at all that the user wishes to send, and for some users, at any rate, it represents no more and no less than conversation without speech.

10. Those who use Twitter can be ‘followed’ by other users and Twitter users often enter into conversations or dialogues with other Twitter users. Depending on how a user posts his tweets, they can become available for others to read. A public time line of a user shows the most recent tweets. Unless they are addressed as a direct message to another Twitter user or users, in which case the message will only be seen by the user posting the tweet, and the specific user or users to whom it is addressed, the followers of a Twitter user are able to access his or her messages. Accordingly most tweets remain visible to the user and his/her followers for a short while, until they are replaced by more recently posted tweets. As every Twitter user appreciates or should appreciate, it is possible for non-followers to access these public time lines and they, too, can then read the messages. It is also possible for non-users to use the Twitter search facility to find tweets of possible interest to them.”

In that case the Divisional Court held that tweets are messages sent over a public electronic telecommunications network for the purposes of the Communications Act 2003. Section 127(1)(a) of that Act makes it an offence to send via such a network ‘a message or other matter that is grossly offensive or of an indecent, obscene or menacing character’. At [28] the Lord Chief Justice said:

“The 2003 Act did not create some newly minted interference with the first of President Roosevelt's essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use Twitter for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.”

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