Good news for free speech in the UK: Court of Appeals rules that legal investigation of “hate incidents” cannot be used to chill speech

December 23, 2021 • 1:15 pm

I hadn’t realized that if, in the UK, if you express lawful speech, you can still be put in police records for creating a “hate incident”, described by the first link below (from the BBC) this way:

A hate incident is “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice”, according to the College of Policing’s guidance on hate crimes.

(Note that it’s the perception of the “victim”—or anyone else—that makes it an “incident”. Intention itself doesn’t matter, just the perception of intention.)

And a Brit named Harry Miller, a retired policeman, created a “hate incident” by issuing, in 2018 and 2019, a number of tweets that were considered “transphobic”, including one that questioned whether transgender women were “real women”.  Another tweet said “I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me.” That was reported as another transphobic hate tweet.

So someone complained, the cops showed up at Miller’s house and questioned him, and although his speech was legal, a record and a report of Miller’s behavior was made by the police.

Click the screenshot to read more:

Miller wasn’t going to take this lying down:

Humberside Police visited Harry Miller in January 2020 after a complaint over alleged transphobic tweets he made.

It was recorded on a national database as a non-crime hate incident.

But the Court of Appeal ruled on Monday the guidance was wrongly used and it had a “chilling effect” on Mr Miller’s freedom of speech.

Speaking outside court, Mr Miller, from Lincolnshire, said being offensive was “one of the cornerstones of freedom”.

“Being offensive is not, cannot and should not be an offence,” he said.

“Only when speech turns to malicious communication or targeted harassment against an individual should it be a problem.”

That, in effect, is what the First Amendment in the U.S. stipulates. While Twitter can take down Miller’s tweets as “violating community standards,” the government, in the form of the police, cannot prosecute you, nor can it give you a permanent record for doing nothing illegal.

Miller first challenged Humberside Police’s actions at the High Court, which ruled in February 2020 that the force’s response was unlawful and a “disproportionate interference” with Mr Miller’s right to freedom of expression; but also ruled that the guidance itself was legal, served “legitimate purposes” and was “not disproportionate.” That’s when Miller took his case to the higher Court of Appeals.

And the Court of Appeals just ruled for Miller (Britain’s Free Speech Union helped with the appeal):

The Court of Appeal said national rules set by the College of Policing had placed too much emphasis on the perception of transphobic hostility, despite no evidence recorded by police.

Dame Victoria Sharp, one of England’s most senior judges, said: “The net for ‘non-crime hate speech’ is an exceptionally wide one which is designed to capture speech which is perceived to be motivated by hostility… regardless of whether there is evidence that the speech is motivated by such hostility.

“The volume of non-crime hate speech is enormous and the police do not have the resources or the capacity to investigate all the complaints that are made.

“There is nothing in the guidance about excluding irrational complaints, including those where there is no evidence of hostility and little, if anything, to address the chilling effect which this may have on the legitimate exercise of freedom of expression.”

The court heard the guidance had been revised with updates including “a strong warning against police taking a disproportionate response to reports of a non-crime hate incident”.

However, Dame Victoria added: “In my opinion [the revisions] do not go very far or not nearly far enough to address the chilling effect of perception-based recording more generally.”

An analysis of what all this means was made by Dominic Casciani, the Home and Legal Correspondent for the BBC:

Today’s ruling backs Harry Miller’s legal right to speak his mind and potentially cause offence – a freedom that he says is fundamental in the battle of ideas in a democratic society.

His victory is a headache for the College of Policing, which now has to come up with new “safeguards” to ensure that any future recording of non-crime hate incidents does not disproportionately interfere with the legal right to speak one’s mind.

That means rethinking guidance that dates back to the fallout from the 1993 racist murder of Stephen Lawrence.

Mr Miller says it was obvious back then what the police should have been recording: genuinely hateful gestures that were a prelude to awful crimes. He urges them today to remember that lesson and to focus on rooting out hate speech – rather than taking it upon themselves to police provocative thought and debate.

So the College of Policing has been called off, and has to rethink what it does vis-à-vis “hate speech”.

What this has come down to is a tentative ruling that takes British law on speech closer to the U.S. First Amendment, but it’s not all the way there yet. For example, saying “gas the Jews” is legal in America, but almost certainly not in Britain.  And posting a video on YouTube of a dog making a Nazi salute might violate YouTube’s standards, but it’s not illegal in America. But in the UK it is, for in 2018 Mark Meechan was convicted of a “hate crime” in Scotland for an action that caused physical damage to nobody. It only hurt feelings. As the Washington Post reported:

[Meechan was] guilty of a charge under the Communications Act that he posted a video on social media and YouTube that was “anti-semitic and racist in nature” and was aggravated by religious prejudice.

Meechan was fined £800 pounds, which was seized from his bank account.  I’m sure you remember the Nazi Dog Incident.

I don’t see America as the best country in the world, but it is one of the best for freedom of speech, and is superior to the UK in dealing with “hate speech”. For “hate speech” is a slippery term, and there is no good reason I can see for someone training a dog to make a Nazi salute or emitting tweets that weren’t really transphobic (though truly tranphobic tweets, like, “transsexuals shouldn’t have the same legal rights as cis people”, would also be legal). The issue is whether society incurs damage by allowing such speech, or whether it’s damaged more by chilling such speech. My view aligns with that of Mill and Hitchens, and goes along with the American court’s interpretation of the First Amendment: unless your speech creates immediate, predictable, and imminent harm to people or property, it is legal. Private companies can ban it, but the government cannot.

Miller was clearly being “chilled” by the UK’s hate-speech policy. If the government can decide that speech that hurts nobody, and is merely offensive, is illegal or can give you a mark against your name for perpetuating a “hate incident”, then speech has the potential to be impeded. And, as we know in these fraught days, nearly anything can be seen as hateful or offensive.

40 thoughts on “Good news for free speech in the UK: Court of Appeals rules that legal investigation of “hate incidents” cannot be used to chill speech

    1. And why is that!? Perhaps because a modicum of laws are useful.

      FWIW, I had to look the term up – Europe is well steeped in the modern welfare society. It is described as originated as a political, and extreme political at that, idea, which doesn’t surprise me:

      “Libertarianism originated as a form of left-wing politics such as anti-authoritarian and anti-state socialists like anarchists,[6] especially social anarchists,[7] but more generally libertarian communists/Marxists and libertarian socialists.”


      1. Not to be confused with libertarian (i.e. ‘free will’) in the Free Will – Determinism discussion in the next post. Still, political libertarianism is somewhere between what you (presumably in Europe) probably know as liberal democracy, true liberalism, and anarchism. Some people in the US refer to it as ‘classical liberalism’. It’s fascinating that your article identified it with the left. I know roughly equal numbers of libertarians personally who identify as left-light and right-light, without the excesses of the major parties – although quite a few just shift away from whoever has the majority in Congress.

  1. Yes, the “non-crime hate incident” nonsense has hopefully been consigned to the waste bin. It’s bad enough that people like JK Rowling get labelled as “transphobic” by activists without an official body like the police taking their claims at face value and getting in on the act.

    1. Having read the judgement at #9 below, I see the non-crime hate incident is here to stay…! That said, hopefully the rules will be applied more carefully in future.

  2. I have a hard time imagining how the offended think this heavy-handed policing of people’s expressed beliefs will lead to a utopian world where people just don’t think such Bad Things anymore. They need only reflect on how they themselves would react if legally prevented from advocating their own position. While the lukewarm might drop it, most simply double down — and now do so from a genuine position of martyrdom.

    If you’re using the police to intimidate people who gently mock you, you’re probably not on the Right Side of History.

      1. The laws are not put in place by the future “offended” mind, and their existence is ironically intended as a barrier against negative effects including such conspiracy theories put forward here.

        If they work or are unnecessary is another discussion.

  3. When the police first came round to speak to Mr Miller, they apparently said “We’ve come to check your thinking”. That is genuinely chilling, and the outcome of the appeal is therefore all the more to be welcomed.

  4. The “intention doesn’t matter” stance has always perplexed me. It makes no accommodation for simple misunderstanding, or outright ignorance, on the part of the hearer. And it makes no connection to criminal law, where state of mind is extremely important- the difference between negligent homicide and first-degree murder, for instance.

    There was an interesting episode on Facebook a few months ago where photos of Black Americans were labeled “primate”. From the comments making the circuit, there was no doubt in the minds of most that this was racism pure and simple. In fact, it was a simple consequence of algorithms used in “deep learning”, and the fact that i- humans are primates, and have primate features, and ii- the majority of images used to distinguish humans from other primates were of white humans, since the majority of humans in the US are white. Thus, facial color (most primates have dark facial hair) became a significant factor in distinguishing “humans” from “primates”. It was an error bound to happen, and not even a computer error in any important sense of the term.

    The computers had no racist intentions (or indeed any intentions at all), yet if “intentions don’t matter”, then this misclassification had to be racist. Intentions are irrelevant. And if non intentioned machines can be racist, then so presumably can a rock, a sunset, a gust of wind, etc- anything some minority individual can be offended at. Which can be virtually anything.

    1. A slight tangent, but still on the “intention vs. impact” question:

      It seems to me that some on the progressive, “woke” side (I use the term loosely, as a shortcut) want it both ways.

      There is a broad notion, as suggested in your comment, that “Intent doesn’t matter” and that we should gauge each situation based on the “impact” claimed by some aggrieved person.

      But when it comes to trans identities, it seems this is flipped. For example, a transwoman, i.e. natal male presenting as female, might *intend* that I accept or perceive them as a woman or female, but the fact is, I may not (i.e. the “impact” on me is not in alignment with the trans person’s “intention”).

      In the end, the most vigorous assertions of trans activists that we all must share in their own self-perceptions or be tarred as bigots is an attempt at either thought control or an effort to make people say things they don’t believe.

      Why it it not enough for trans activists that decent people accept trans persons with dignity and support their right to equal treatment?

  5. Great victory for the English. But here in Scotland, the Hate Crime Act will come into force next year. It criminalises ‘stirring up hatred’, which includes ‘inflammatory or insulting utterances’, even if happening during conversations in your own home. Offenders face up to seven years in jail, so that master criminal J.K. Rowling would better watch out or take political asylum in England. Opposition to the Act united groups as diverging as The National Secular Society, The Christian Institute, the Network of Sikh Organisations, For Women Scot (a women’s rights group), Big Brother Watch and Free Speech Union. It was of no avail: the Orwellian Scottish National Party, which has no dissenting voices, passed the Act after a few amendments to placate some of the criticism. The future of freedom of speech looks grim for one of birthplaces of the Enlightenment.

    1. The situation in the matter of freedom of expression all over the UK is dire indeed, but it is even worse in Scotland than in England and Wales. The SNP (quite possibly the single most odious political party anywhere in Europe) is indeed Orwellian and manages to combine the worst elements of petty nationalism (“the narcissism of small differences”) with the worst elements of hard-left “woke” totalitarianism. The ghosts of the famous “North Britons” of the Scottish Enlightenment are not, in all likelihood, resting quietly.

      1. ‘Odious’ indeed, j e. Most Americans have no idea of what’s happening in there islands. You must be familiar with SNP’s attempt to further control the peasants by nominating a ‘state guardian’ for every child, whose powers would supersede parents’ rights. This brilliant plan was abandoned only after a fusillade of criticism.

        1. Wow. I really had the wrong impression of the SNP. I’m skimming the Wikipedia page now. I had no idea they are both popularist-nationalistic and social democratic. I knew they were pro-European. First-past-the-post systems do tend to yield schizophrenic amalgam parties. I vastly prefer proportional representation (e.g. in the US Congress, I would love for one house to represent electoral districts and the other to be composed of Members-at-Large, proportionately representing all voters as a single bloc).

          The Wikipedia page for SNP just took me to Duverger’s Law, “constituencies that use first-past-the-post methods will lead to two-party systems, given enough time”. Fascinating read.

          1. e.g. in the US Congress, I would love for one house to represent electoral districts and the other to be composed of Members-at-Large, proportionately representing all voters as a single bloc

            You mean, somewhat like the system in Scotland, but with the “list” MSPs voting in a separate house (and presumably at a different stage in the legislative process) to the directly-elected MSPs. (Currently, they all vote together, with equal weighting of each vote.)
            The question – and this would likely get you on the hustings, or the immolation bonfire, or both – is, which should be the senior house – the directly elected, or the list MSPs, who are definitely elected, if not directly elected.

            1. > which should be the senior house

              I’d love to see a study comparing seniority in bicameral systems worldwide. In my understanding, the two houses in the US, and in many state legislatures (seriously, Nebraska, Unicam?) are a lot more co-equal than many other systems. My understanding is that the British House of Lords has withered away over the centuries and is much less influential than other Upper Houses (Senates).

            2. Oh, one other point. The German Bundestag (Lower House) is a combination of local electoral districts AND party lists, where every citizen casts two separate ballots for the Bundestag. I think it is smoothed over so that it can have first-past-the-post within voting districts, but still be proportionally representative. I don’t know how much the math really checks out.

        2. The evidence is that the large majority of child abuse is performed by parents upon their own children – they’re the ones with the access. Whether it is 3 cases in 4, or 4/5, or 5/6 varies, but I’ve never heard anyone ever claim it was anywhere near 2/3 or 1/2.
          Evidently parents cannot be entrusted with the care of their own children without some significant degree of oversight.

          The precise aim of the legislation – as far as I understood it – was to ensure that at all times when a child might come into the attention of the state (viz : conception to age 18) there was a named person whose personal legal duty was to look after the interests of the child, regardless of the interests of the parents or any state body. This was after too many cases of different state bodies – medics, police, social services – attempting to pass the responsibility from one to the other, in response to workloads, budgets, availability of case workers. This would be in response to someone having cast questions on the parent’s ability or desire to look after the child (or children) in question.
          Having had friends who were “social workers”, and who saw children on the “at risk” being dropped from the register because there weren’t staff or budget to address the cases, having a lawyer (usually) whose duty is to force their (the social worker’s) bosses to pay attention to the case is generally seen as a good thing that will save lives in the long run.
          If I recall the news from the Plains of Englandshire, the last couple of weeks have had at least two cases of children being beaten to death by their parents, after the bodies of the state were aware of “a situation”, but chose to ignore it (because…budget, staff, whatever). The expected solution to this is a “Royal Commission” which does nothing, but with big, impressive heraldic flourishes on the paperwork before it is buried in soft peat until the next case.

      2. “The situation in the matter of freedom of expression all over the UK is dire indeed, but it is even worse in Scotland than in England and Wales.”

        – just a mild nudge; your wording could be interpreted as being unaware of or omitting Northern Ireland as a constituent of the UK, particularly having stated ‘all over the UK’ followed by SEW. In any case, I’m not keen to know where NI ranks in this topic, I think vying for rock bottom with Scotland.

        1. Ni is still in the EU’s customs union (despite the “no border in the Irish Sea” rhetoric) and sadly the current UK government probably won’t even notice when it leaves the UK after the inevitable border poll. I’ll be amazed if the United Kingdom is still united by the end of my own lifetime.

          1. (despite the “no border in the Irish Sea” rhetoric)

            Your Auto-Incorrect tool is substituting “rhetoric” for “lie”. That needs fixed.

            the current UK government probably won’t even notice when it leaves the UK after the inevitable border poll.

            The question does arise of how NI is going to go from being a province without an active government (because their politicians can’t bear to scream at each other) to being an independent country (whose politicians presumably would remain unable to even scream at each other).
            Because as sure as eggs are chicken-factories, the Irish nation doesn’t want that bunch of bampots in their country.

            Oh, hang on – I have a solution : decant the population of Ulster to the mainland UK (or internment camps on the Isles of Wight, Scilly, Channel, Man, Rockall, etc), and merge the land of Northern Ireland into Ireland and back into the EU. That should sort things out. Then the Irish can set their own criteria for importing any internees they think are sane enough to allow into their country. If there are any – they might prefer Poles and Romanians.

    2. the Orwellian Scottish National Party, which has no dissenting voices

      The SNP are as Orwellian as you say because (and this is important) none of the other parties are anywhere near posing an electoral challenge to it. They have been democratically elected. Electing single-issue obsessives is a prerogative of the demos in a democracy.
      I’d have to re-read 1984 to remember how IngSoc got to power there, but I’m pretty sure Animal Farm was a naïve democracy taken over by (hawk, spit!) politicians.
      Recently I re-read a short story by Piers Anthony – which suggested an alternative way of choosing those who wield power. Has anyone else read “On the Uses of Torture”?

    1. Thanks – if I hadn’t known the outcome I’d have been wondering where the judge was going, but the final few pages contain something of a twist! A few missing words and a sloppy use of “transgender” as a protected characteristic though (later correctly referred to as “gender reassignment”).

  6. I have a dislike of the idea of any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice. I attended a work course many years ago that maintained that workplace sexual harassment depended upon how the recipient felt about it.

    I could see the point that ‘just office banter’ was a ready made excuse to camouflage intent or insensitivity, but I could also see that some people (probably only a few) reporting harassment might be vindictive, or hypersensitive, or just off their meds. Unless a proper investigation is carried out justice may not be served for either party. An allegation alone should be insufficient, and therefore no record created.

    1. The investigator then has to decide between “But I was only joking / just asking questions / playing devil’s advocate … ” and “No, you weren’t, you were trolling / sealioning / gaslighting …”.

      How to determine? Drag through both parties social media posts for character evidence? Look at who they voted for and which bumper stickers they have? It seems to me to be a very hard question as to what is a proper investigation.

      1. …which suggests to me that a ‘proper investigation’ is only justified in serious cases. Clearly if someone has a history of harassment accusations (or other hate speech), or making harassment accusations, there is probably a greater need for investigation.

        That an investigation is difficult should not short circuit natural justice. You wouldn’t decide such things by the toss of a coin, nor should you assume the guilt or innocence of someone in advance.

        1. But, chicken and egg problem, how does one know if it is serious case without doing a proper investigation? Then we’re back to where we started, trying to distinguish between acceptable jokes and unacceptable trolling, and similar difficulties.

  7. > Unless a proper investigation is carried out justice may not be served for either party.

    And even when a proper investigation is carried out, justice may still not be served. That is why companies seem increasingly prepared to separate and promote aggrieved parties. They think it is less of a liability. Until it’s not.

    We’re seeing that more and more with misbehaving school administrators.

  8. Where this article sees “a tentative ruling that takes British law on speech closer to the U.S. First Amendment” it is fairly obvious that hate laws were left in place and improved by the legal process taking it further from the US curious lack of such common laws. The very outcome shows that there weren’t any problem of “a slippery term” but of disproportionate response.

    Remember that hate laws are allowed by UDHR, and there is no science yet that tells us if society is improved with or without them. If they really were either strongly good or bad you would think such evidence would be easy to find. But it appears to inhabit the grey zone of “it is complicated”.

  9. This is important and extremely welcome news. As a UK citizen I have long despaired at the state of free expression in our society. There have been many worrying issues regarding civil rights in the UK over the last few years, but this idiocy equating offence with hate is the most worrying and draconian.

    Why? Because it has given authorities free reign to monitor and become involved in conversations that do not concern them. It provides police with an excuse to intervene and express the official state ‘opinion’, and it affords them power and control that should never belong to the state. Worst of all, it empowers them to file reports against decent, reasonable citizens, tarnishing those who have committed NO CRIME.

    Mr Miller’s tweets were innocuous, harmless and without malice. He had every right to say what he did, but he was visited by the police at home and warned about his thoughts and conduct! It’s difficult to express just how outrageous and unacceptable this is, it represents a despicable level of intrusion into private lives. But what makes it worse is the fact that the authorities did not, and obviously never had any intention of, enforcing such guidelines equitably. No one has been censored for sending tweets which failed to offend the woke. No one was spoken to about the feminist accounts celebrating female violence against men, or the virulent misandry and antisemitism that suffuses Twitter.

    The law around ‘hate incidents’ was defined incompetently, but its enforcement has been even worse. The police were given an inch, but took a mile. When determining hate, they concentrated solely on ‘woke’ issues, ignoring ‘victims’ from ‘less oppressed’ groups; those who would obviously never feel pain or be in any way wronged. In terms of overreach, they have shown an egregious and overbearing tendency to exert control over people who have done NOTHING WRONG.

    The police forces of the UK have demonstrated that they cannot be trusted. It is not their job to control public speech and never has been. The sooner we can get rid of this shambles of a govt the better. It won’t fix everything immediately, but it will hopefully put us on the road, once more, to believing in facts, rationality and the rule of law.

    1. But what makes it worse is the fact that the authorities did not, and obviously never had any intention of, enforcing such guidelines equitably. No one has been censored for sending tweets which failed to offend the woke. No one was spoken to about the feminist accounts celebrating female violence against men, or the virulent misandry and antisemitism that suffuses Twitter.

      Well of course not. Enforcement of this law is driven by who makes complaints, not by what the police think. I doubt if the officers that visited Harry Miller really wanted to do so. Somebody had made a complaint and so they had to follow it up.

  10. Harry Miller’s trouble with the Humberside police, the Nazi dog incident, the SNP’s Hate Crime Act, and all the rest reflect a familiar reflex: refusal to admit an error. The attitude which gave rise to these rules was expressed in the first place in words thoughtless to the point of idiocy (i.e., “always believe the victim”), but instead of admitting a logical error, its proponents double down, going on to produce an enforcement machinery that is thoughtless to the point of idiocy. In the US, this reflex has not reached civil law and police enforcement (yet?), but is becoming commonplace in academia. For every Nazi dog incident in the UK, we have a US professor suspended for pronouncing a Chinese expression that sounds like a magic forbidden word, etc. etc. etc.

    In this connection, the administration at San Diego State University has recently added a requirement for Diversity Statements in the process of evaluating faculty for retention, promotion, and tenure . See:

    1. > In the US, this reflex has not reached civil law and police enforcement (yet?)

      I’ve heard that it is the case with domestic disputes. I’ve heard a few people complaining, but I haven’t chased down the references.

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