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December 20, 2021 - 3:45pm
In August 2020, the barrister Sarah Phillimore mused on Twitter: “my cat really loves Dreamies perhaps he’s a Methodist.” Me neither, but the point is what happened next. As an experiment, a fellow-Tweeter reported the gag to South Yorkshire Police, saying that it displayed anti-Methodist hatred: clearly Phillimore was stigmatising Methodists as “wandering pests that defecate in other people’s gardens”. The police knew just what to do. They decided that Phillimore had committed an NCHI: a “non-crime hate incident”.
Under the police’s “non-crime” guidance, anyone could report you for anything. 120,000 of these “hate incidents” were recorded between 2014 and 2019, an endless litany of — often utterly innocent — words and actions which were now officially classified as hateful. If you were on the list, and a potential employer requested an enhanced DBS check, the police might choose to tell them you were a sort of non-criminal hater. But now, it seems, the NCHI era is ending. This morning the Court of Appeal ruled that the official guidance, drawn up by the College of Policing, unlawfully contravenes the right to free expression.
The legal challenge was brought by a Lincolnshire businessman called Harry Miller, who was visited by police in January 2019 and told that his tweets on the trans debate constituted an NCHI. They had picked on the wrong man. When I spoke to Miller earlier this year, he observed that, as an ex-copper, “the mystique of the police just doesn’t exist for me.” Being an independent businessman also helped: “One of the things the police said to me was, ‘Well, if your place of work knew what you were doing, you could be in trouble with your HR department.’ I said, ‘I am my ****ing HR department!’” He and a friend founded an organisation, Fair Cop, which brought the legal action and has now seen it through to a significant victory.
The Court’s judgment is common sense translated into legal language. It notes that NCHIs, simply by bringing ordinary political debate into the realm of police action, can easily have a “chilling effect” on freedom of speech; and that current guidance allows practically anything to be recorded, even if it is ridiculous (the Methodist cat) or a legitimate part of political debate (Harry Miller’s gender polemics). If the category of NCHIs survives, then, it will have to be greatly restricted.
It’s easy to be fatalistic these days; the rules made by corporations and official bureaucracies surround us like high walls. (They keep going up, too: look at the government’s draconian bill against peaceful protesters.) You can look at something like NCHIs and just think “the world is mad, what can anyone do?” But the day Harry Miller decided to start Fair Cop, he pulled a single brick out of the wall. And this morning it collapsed.
Dan Hitchens writes the newsletter ‘The Pineapple’ and is former editor of the Catholic Herald
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SubscribeHarry Miler should get a knighthood – having police officers knock on your door to ‘check your thinking’ has no place in the free world.
Knowing what police sometimes get up to when ‘knocking at your door’ Iv’e got half a mind to tweet some hatred just to get a visit. x
If they do visit then report them for hateful speech as they upset you by coming to your door and insist that they get an NCHI recorded against them.
100% Agreed
However we also need tp publicise the names an addresses of those responsible for drafting and issuing the guidelines because they are too dangerous to be allowed to roam unchecked
Shout out also, to the Free Speech Union who backed this with Fair Cop.
Excellent result!
Great news, congratulations Harry Miller, and thank you.
We all owe a debt of great gratitude to Harry Miller.
If you have the funds you really should consider a membership of the Free Speech Union who backed Harry Miller. It would be £50 well spent.
In the US, the ACLU, the American Civil Liberties Union, used to serve that purpose: taking on unpopular causes in the name of free speech–even n#zis marching in Skokie, Illinois some decades ago, a revolting spectacle but protected by free speech.
In past decades they have become completely woke, now attacking free speech and championing restrictions of “hate speech,”–the turnaround almost unfathomable.
If the Free Speech Union is not woke, I second your comment! The FSU is needed, along with a knighthood for Harry Miller.
The FSU in UK is relatively new, and more a reaction to “woke” restrictions.
https://freespeechunion.org/
It may eventually fall to O’Sullivan’s first law, or O’Sullivan’s law, ( “All organizations that are not actually right-wing will over time become left-wing.”) but for now is sticking to its charter.
I very much doubt that with Toby Young at its helm, the FSU will fall to O’Sullivan’s law. It seems to have given him a new lease of life and sense of purpose after his own cancellation (which clearly still rankles).
Sure with Toby at is helm. But entryism and takeover is the way it happens.
Harry Miller has done us all a big favour. Thank you, Harry
I’ve had a pretty awful last few days, but this almost makes up for it all. Thank you Mr. Miller.
Well ain’t that a dandy! Maybe some good common sense is coming back!
Lovely to know the police had time to investigate all those non-criminal opinions that hurt nobody.
Well done Harry Miller!
Well done, Harry Miller. That has cheered me up just before Christmas.
Knighthood? Why not? It is possible to go on the .gov website and recommend him for an honour. It requires details I don’t have, unfortunately. I hope some of those around him will do it. Honours should be for serving the country, after all.
Such a shame I live in Scotland, hate finder capitol of the UK.
I’d like to think this a great victory, a battle won, however I suspect the SJW’s, and their allies, won’t go quietly into the night and will begrudge each and every step away from THEIR path to Eden.
Farewell to the non hate crime incident is certainly an inaccurate headline.
Page 41 final paragraph of Dame Justice Sharp’s judgement provides as follows:
”The position is therefore that less intrusive measures could be used to achieve the legitimate aims of such recording, without unacceptably compromising the achievement of those aims. That is not to say that perception-based recording of non-crime incidents is per se unlawful, but that some additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary.
123. It is not for this Court to attempt any redraft since, subject to the views of my Lord and my Lady as to the outcome of this appeal, that is a matter for the College. It is to be noted however that though the judge said the police have a common-sense discretion not to record irrational complaints and the police say they exercise such a discretion, nothing is said about this in the Revised Guidance. This may be because of the tensions between perception-based recording on the one hand and a discretion not to record on the other which I have discussed at paras 89 and 90 above. Providing a link to the lengthy judgment below merely ducks this issue it seems to me. The Guidance should truly reflect what the police are expected to do and should not mislead by omission either the police who have to use it or the public. I do not think the tension is an impossible one to resolve. The Guidance and the revised version already provide for limited exceptions which demonstrate that a derogation from perception-based recording of non-crime hate incidents can operate where the principle of perception- based recording is abused. And as I say, as the position of the College is that such a common-sense discretion exists and is exercised, no doubt a Guidance which better reflects in suitable terms what the College says is in fact the position, is achievable.”
it is likely the College will seek to amend their guidance to minimise the effect of this judgement and avoid as much as possible getting entangled in the difficult question of when a hate incident that relays on the perception of the “victim” or someone else is not in fact a hate incident that does not need to be recorded. I think celebrations probably need to be postponed until the new revised guidelines come out.
The basic problem is that the legislation harks back to Macphearson who wanted racial hate incidents to be taken seriously and recorded as such – based on the complainant’s perception – whether or not the police officer thought the incident was race based, in order to avoid any suggestion that white officers were not taking black complaints seriously because of their own biases.
As a result there is a tension between the requirement to report a non crime hate incident based on the complainant’s perception and the question as to whether that perception is in fact factually based or irrational. It will be interesting to see how the College deals with this in response to this judgement and how it will affect police procedures in practice.
The judgement certainly does not strike down the whole concept of non crime hate incident recording.
Oh for the days when judges had to write judgments by hand. Lapidary their prose is not.
Thank you for reading the judgement.
This bit is bad news:
“That is not to say that perception-based recording of non-crime incidents is per se unlawful, but that some additional safeguards should be put in place so that the incursion into freedom of expression is no more than is strictly necessary”
Err … when is incursion into freedom of expression strictly necessary, particularly in the context of “perception-based recording of non-crime incidents”?
Surely, never?
Yes, I read that with some alarm.
Thanks Harry Miller for fighting the good fight.
What is of concern is that workplace HR departments have now become enforcers for the ‘witchfinders’ and cultural Stasi.
Shame the government doesn’t act and just make NCHI illegal. In fact why not remove all hate crime legislation. Since it’s been brought in society seems more fractured.
This country owes Harry Miller a massive debt of gratitude.
Harry’s game, well played sir!
A welcome judgment (I’ve read it in full) but rather too long-winded and not quite as robust as I might have wished. It leaves the College of Policing free to write updated guidance which they will surely be tempted to hedge and fudge.
Defund the Pigs.
They have become thought Police, and work Political Crimes over crime-crimes, and in Australia are like the ‘Fireman’ in ‘Fahrenheit 451’, oppressors, not protectors, when they obey the left Politicians rather than their own morals.
I cannot believe they have allowed themselves to become so politically and ethically compromised – it must be who they are recruiting. In USA this sickness has not happened yet – but it is in their bosses.
I see your point but I don’t think defunding is the answer. It might be a cure that’s worse than the disease.
Perhaps there should have been a civil penalty for people who brought accusations of ‘non-crime hate incidents’ that could not be substantiated. It would have discouraged people from making spurious claims and shifted the burden from the innocent onto their accusers.
Great news. Nice work Harry, and Toby, getting rid of part of hate speech law. But the Police, Crime, Sentencing and Courts Bill just passed, severely limiting the right to protest. Most protesters are left-wing. What’s happened is freedom of speech has moved to the right. There is no net gain.