“In this country we have never had a Cheka, a Gestapo or a Stasi”
In a case closely watched by specialists in IT and internet law, as well as the information security community, a British judge has blasted police over their visit to the workplace of a man who posted allegedly “transphobic” tweets, saying the visit and purported threats to prosecute, were a “disproportionate interference with the Claimant’s right to freedom of expression”.
The case revolves around tweets about transgender issues posted by the claimant, Harry Miller, between November 2018 and January 2019 that he described as part of debate about reform of the Gender Recognition Act 2004, on which the Government consulted in 2018. They were reported to Humberside Police by a transgender woman called Mrs B.
The police recorded them as a “non-crime hate incident”, and sent an officer to Miller’s place of work. A press statement issued by an Assistant Chief Constable and a response to a complaint by the police also referred to the possibility of criminal proceedings if matters “escalated”; a term not defined.
What on Earth is a “Non-Crime Hate Incident”?
Operational guidance from the College of Policing requires police forces to record hate incidents whether or not they are criminal under something called the Hate Crimes Operational Guidance (HCOG). Such incidents related to the transgender are defined as “any non-crime incident which is 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.”
Miller had challenged the legality of HCOG, contending that it violates Article 10 (freedom of expression) of the European Convention on Human Rights.
This morning Justice Julian Knowles held that the HCOG is lawful.
But in a blistering opinion he concluded that the Claimant’s tweets were also lawful, and that the police response represented “disproportionate interference with the Claimant’s right to freedom of expression.”
He wrote [pdf]: “The effect of the police turning up at [the Claimant’s] place of work because of his political opinions must not be underestimated.
“To do so would be to undervalue a cardinal democratic freedom.
Upholding the claim, he said: “In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”
The Judiciary of England and Wales said in a press release shared Friday morning that the transphobic tweet case judgement provides a reminder that “free speech includes not only the inoffensive,but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, and that the freedom only to speak inoffensively is not worth having.”
“Not Concerned with Merits of the Transgender Debate”
Justice Knowles added: “I am not concerned with the merits of the transgender debate. The issues are obviously complex. As I observed during the hearing, the legal status and rights of transgender people are a matter for Parliament and not the courts. Second, the nature of the debate is such that even the use of words such as ‘men’ and ‘women’ is difficult.
“Where those words, or related words, are used in this judgment, I am referring to individuals whose biological sex is as determined by their chromosomes, irrespective of the gender with which they identify. This use of language is not intended in any way to diminish the views and experience of those who identify as female notwithstanding that their biological sex is male (and vice versa), or to call their rights into question.”