R Harry Miller v The College of Policing
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp P.,Lord Justice Haddon-Cave,Lady Justice Simler |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1926 |
| Docket Number | Case No: C1/2020/1382 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1926
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lady Justice Simler
and
Lord Justice Haddon-Cave
Case No: C1/2020/1382
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINSTRATIVE COURT
MR JUSTICE JULIAN KNOWLES
CO/2507/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Wise QC and Michael Armitage (instructed by Sinclairslaw) for the Appellant
Jason Coppel QC and Jonathan Auburn (instructed by Government Legal Department) for the Respondent
Hearing dates: 9–10 March 2021
Approved Judgment
Introduction
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this appeal, sets out the national policy in relation to the monitoring and recording of what are described in the Guidance as non-crime hate incidents. At the root of the challenge is what is called perception-based recording. Specifically, the policy that non-crime hate incidents must be recorded by the police as such (against the named person allegedly responsible) if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” and irrespective of any evidence of the “hate” element. The lawfulness of the relevant parts of the Guidance is challenged as contrary to the appellant's right to freedom of expression, both at common law and as protected by Article 10 of the European Convention on Human Rights (the Convention).
The appeal is from the Order of Julian Knowles J dated 14 February 2020. By that Order, Julian Knowles J:
i) Granted the application of the appellant, Mr Harry Miller, for judicial review of the Chief Constable of Humberside's recording of a non-crime hate incident (in respect of Mr Miller) under the Guidance, and the subsequent actions taken in relation to him by officers under the Chief Constable's command (which included seeking to prevail on Mr Miller not to continue tweeting about proposed reforms to the Gender Recognition Act 2004); but
ii) Dismissed Mr Miller's application for judicial review against the College, in respect of the lawfulness of the Guidance itself.
By the same Order the judge granted a ‘leapfrog’ certificate under section 12(3A) of the Administration of Justice Act 1969, certifying a point of law of public importance in relation to the lawfulness of the Guidance. The judge also gave Mr Miller permission to appeal to the Court of Appeal in the event that the Supreme Court refused permission to appeal. By an Order dated 30 July 2020, the Supreme Court refused permission to appeal on the ground that it considered that the appeal should be first heard by the Court of Appeal. The judge also refused the second defendant permission to appeal, and that application was not renewed.
The judgment under appeal provides a detailed account of the facts and the legal framework to which reference can be made where necessary. References to specific paragraphs from it are contained in square brackets. The judge held in summary (i) that Mr Miller's broad-based challenge to the legality of the Guidance under the common law and Article 10 of the Convention, failed; (ii) that the mere recording of a non-crime hate incident based on an individual's speech is not an interference with his or her rights under Article 10(1) of the Convention, but that if it is such an interference, it is prescribed by law and done for two of the legitimate aims in Article 10(2), namely the prevention of crime and the protection of the rights of others; (iii) that the Guidance does not give rise to an unacceptable risk of a violation of Article 10(1) on the grounds of disproportionality; but (iv) that the police's treatment of Mr Miller after a complaint was made against him that was recorded as a non-crime hate incident, disproportionately interfered with his right of freedom of expression.
The parties
Mr Miller is a shareholder in a plant and machinery company in Lincolnshire. He is a former police officer who holds a number of degrees and formerly taught in higher education.
The College is a company limited by guarantee, established in 2012. It is owned by the Secretary of State for the Home Department but operates at arms-length from the Home Office. The College's work is limited to policy. It has no operational role. According to the evidence of David Tucker, its Faculty Lead for Crime and Criminal Justice, the College is the professional body whose purpose is to provide those working in policing with the skills and knowledge necessary for effective policing; and its purpose is to support the fight against crime and to protect the public by ensuring professionalism in policing. Amongst its principal responsibilities are setting standards and developing guidance and policy for policing; building and developing the research evidence base for policing and supporting the police, other law enforcement agencies and those involved in crime reduction. The National Police Chief's Council (NPCC), which replaced the Association of Chief Police Officers (ACPO) has responsibilities regarding the operational side of policing.
Sections 123 to 124 of the Anti-Social Behaviour, Crime and Policing Act 2014 give power to the College to issue regulations and codes of practice in support of its functions. In addition, the College issues manuals of guidance and advice called Authorised Professional Practice (APP) which set out standards that police forces and individual officers should apply when discharging their duties.
The Convention
Article 10 of the Convention provides as follows:
“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.”
The Guidance
The (non-statutory) Guidance was developed by ACPO and adopted by the College. It was published in 2014.
The genesis of the Guidance can be traced back to the recommendations made by the report produced by the late Sir William Macpherson in February 1999 (the Macpherson Report) following a public inquiry that was established after the murder in April 1993, of Stephen Lawrence. Amongst the recommendations made by the Macpherson Report were that:
i) The police adopt the definition of a racist incident as “any incident which is perceived to be racist by the victim or any other person” (recommendation 12);
ii) “The term “racist incident” must be understood to include crimes and non-crimes in policing terms. Both must be reported, recorded and investigated with equal commitment” (recommendation 13);
iii) Codes of practice be established by the Home Office, in consultation with police services, local government and relevant agencies, to create a comprehensive system of reporting and recording of all racist incidents and crimes (recommendation 15);
iv) The Metropolitan Police Service review their procedures for the recording and retention of information in relation to incidents and crimes to ensure that adequate records are made by individual officers and specialist units in relation to their functions, and that strict rules require the retention of all such records as long as an investigation remains open (recommendation 21).
ACPO produced its first ACPO Hate Crime Manual in 2000, which was republished in 2002 and 2005. This set out the national policy response in relation to hate crimes and hate incidents and incorporated the recommendations of the Macpherson Report. Following a review by Sir Adrian Fulford in 2006, a shared definition across the criminal justice sector of hate crimes and non-crime hate incidents was developed; and in 2007, this definition was adopted by the Crown Prosecution Service (the CPS) and other criminal justice agencies. That definition is incorporated in the Guidance which superseded the 2005 Hate Crime Manual.
In October 2020, after therefore the handing down of the judgment under appeal, the Guidance was fully replaced by a new Hate Crimes Authorised Professional Practice (the Revised Guidance). The Revised Guidance retains the same essential features of the Guidance, including recording non-crime hate incidents, based on complainant perception, but its contents contain some amendments to the Guidance. These include a (stronger) warning against police taking a disproportionate response to reports of a non-hate crime incident, the inclusion of a link to the judgment under appeal and detailed further guidance on how police should contact people “accused” of non-crime hate incidents. We received very brief submissions from the parties on the implications of those amendments. We were also provided after the hearing with a table comparing the Guidance and the Revised Guidance. Unless stated otherwise, this judgment concerns the Guidance as...
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