December 22, 2021 - 7:00am

“Do we know when this bollocks first appeared?” enquired Harry Miller of the ‘transwomen are women’ credo. For this and a handful of similarly unfashionable trans-related tweets the police turned up at his workplace, exaggerated the complaints, threatened criminal sanction if things ‘escalated’, and — in accordance with strict policy — made a permanent record of a “non-crime hate incident”.

At the High Court last year he won on the behaviour of the hapless Community Cohesion Officer sent to bother him. And yesterday he won at the Court of Appeal, on his other, more important, complaint: the unlawfulness of the hate-crime recording policy itself.

The victory was hailed in a Spectator blog as “an enormous blow in favour of the freedom of ordinary people to say what they want”; and in these pages, the era of the non-crime hate incident was said to be ending. I am not so sure.

The policy — the “Hate Crime Operational Guidance” — was found to be unlawful only because in most cases it allows for no discretion whatsoever not to record an event as a hate incident, provided somebody (anybody!) makes that allegation, no matter how absurd or irrational the claim.

The court did not specify precisely what amendments would make the Guidance lawful, but implied that a limited, narrow discretion might suffice (see the last two paragraphs of the judgment). There was already a vague exception for allegations against, er, celebrities – where it recommends officers “seek support from senior colleagues” rather than record a hate incident automatically – and this was pointed to as an example of the kind of discretion that could be applied more widely.

Worse, the court explicitly upheld the principle of perception-based recording, whereby if a complainant perceives “hate” then there is “hate”. There was no fundamental criticism of how this relativist approach bleeds into the system of enhanced criminal record checks. Yes, they criticised the High Court’s surprising finding that the recording policy was so separate from the disclosure policy that it involved no interference with Article 10 Freedom of Expression, but they decided that any such interference would be proportionate and lawful as long a bit of discretion was introduced.

As for “hate”, it is defined to include “hostility”, and hostility to include “unfriendliness”. Noted, by the Court of Appeal, but not criticised (paragraph 111).

So, most likely the police will formally add a general discretion not to record obviously irrational allegations as non-crime hate incidents. But they will continue to record thousands of false allegations on the scantest of evidence. And many entirely innocent people will continue to be unjustly disbarred from jobs that require enhanced police checks.

Perception-based recording — of racism — was introduced on the recommendation of the Macpherson Report of 1999. It seemed like a good way of collecting important data unsullied by racist attitudes in the police. But unfairness arises as soon as this mechanism is applied more widely and starts to have real-world consequences for individuals.

The long-standing protections of the criminal law – “beyond reasonable doubt” for one – provide little comfort if our lives can be ruined on a lower threshold – lower even than the balance of probabilities. And it is not only in enhanced police checks where claimed perceptions can reign supreme: your employment contract and associated policies may well contain something similar.

A win’s a win, and well done to Harry Miller. But there remains, as they say, much work to be done.

Adam King is a criminal barrister at QEB Hollis Whiteman.